Shirpur Education Society … vs The State Of Maharashtra on 31 January, 2020


Supreme Court of India

Shirpur Education Society … vs The State Of Maharashtra on 31 January, 2020

Author: Rohinton Fali Nariman

Bench: Rohinton Fali Nariman, S. Ravindra Bhat

                                                           1

                                                                               NON- REPORTABLE
                                          IN THE SUPREME COURT OF INDIA
                                          CIVIL APPELLATE JURISDICTION
                                            CIVIL APPEAL NO. 892 OF 2020
                                        (Arising out of SLP (C) No. 17051 of 2019)


         SHIRPUR EDUCATION SOCIETY
         THROUGH ITS PRINCIPAL                                                ...APPELLANT(S)


                                                               VS.



         THE STATE OF MAHARASHTRA & ORS.                                     ...RESPONDENT(S)


                                                         ORDER

1. Leave granted. The appeal was heard, with the consent of the counsels for
the parties.

2. The appellant (hereafter “the Society”) is aggrieved by the final judgment
of the Aurangabad Bench of the Bombay High Court, which declined its claim
for admitting students in its undergraduate pharmacy (B. Pharma) course, up-to
an intake of 180 students, with a further intake of 60 students, in the evening
shift.

3. The undisputed facts of the case are that the society established the RC
Patel Institute of Pharmaceutical Education and Research College (hereafter
“the college”) after securing permission and clearance of the All India Council
for Technical Education (“AICTE”, hereafter), the Pharmacy Council of India
Signature Not Verified

Digitally signed by R
NATARAJAN

(“PCI” hereafter), Director of Technical Education, Govt of Maharashtra, and
Date: 2020.01.31
17:33:51 IST
Reason:

the North Maharashtra University, in 1992. Its initial student intake of 30 was
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increased, after permission from the authorities, in 1996 and further, to 60,
annually, in 2001. In 2010, AICTE published regulations titled AICTE (Grant
of Approvals for Technical Institutions) Regulations, 2010 (hereafter “AICTE
2010 Regulations”) in terms of which student intake could be increased to 180
and, in addition, the concerned college could start a second shift of classes, for
which the maximum intake could be 60 per year. In tune with this policy, the
AICTE published the approval process handbook. On 23.08.2010, the
appellant’s college increased its annual intake capacity to 240 (180 in the
regular shift and 60 in the second shift). This intake increase, apparently had the
prior approval of the Govt. of Maharashtra (on 30.06.2010); the Director of
Technical Education too approved the increase in intake, by an order dated
09.11.2011. This position continued for the later years, too.

4. The Director of Technical Education, by an order made in 2013, reduced
regular intake from 180 to 100; the intake for the second shift, however, was left
undisturbed. This reduction, however, was interdicted by an interim order (dated
25.06.2013, made in W.P. 4992/2013 by the Aurangabad Bench of the Bombay
High Court) which resulted in continuance of the status quo, with respect to the
number of seats (at 180). For the next year, AICTE approved the total intake
(regular plus second shift) @ 240 per year, on 04.06.2014; however, the
Director of Technical Education again reduced it – like in the previous year, to a
total of 160- by an order, which was stayed by the Aurangabad Bench of the
Bombay High Court on 06.07.2015. The same pattern continued, for 2015-16,
2016-17 and 2017-18, AICTE approved a total intake of 240. For the three
years, the Director of Technical Education reduced the intake. Again, the High
Court (in WP 6259/2015 and WP 6702/2016- by order dated 27.06.2016 and
23.06.2017) stayed the Director’s order, and continued the status quo.

5. In 2018, the AICTE published its handbook for admissions. The appellant
claims that its college was compliant with all applicable regulations and rules;

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despite this, the AICTE’s web portal showed a decreased intake. The petitioner
unsuccessfully represented to the respondents; it thereafter approached the High
Court by filing WP 7222/2019. It filed another writ petition, challenging the
policy (of AICTE) enabling reduction in the intake. By the impugned judgment,
the High Court dismissed WP 7222/2019.

6. The High Court noticed in the impugned judgement that the petitioner’s
grievance was two-fold- the absence of approval for the second shift by AICTE,
and restriction of capacity to 100 students for the undergraduate course. The
High Court noted that for the earlier years, the PCI used to restrict the capacity
of the institution despite which AICTE used to grant approval for a larger intake
of students. This conflict was on account of assertion of supremacy or primacy
in the field of regulation of pharmaceutical education by both AICTE and PCI;
the former had permitted the institution i.e. the society and its college to admit
students with higher capacity. AICTE approved a total intake of 240 which
included 180 in the morning shift and 60 in the evening shift. It was then
noticed that the AICTE for the first time in 2018-19 reduced intake capacity in
respect of the college. This was in terms of AICTE’s powers under Section 23,
Section 10 and Section 11 of the All India Council for Technical Education Act
and Regulations, framed in 2018. It was noted that Regulation 2.2 dealt with the
second shift and guidelines contained in the Regulations clauses spelt out the
intake capacity (100) of only one shift. The High Court noted that at the
undergraduate level, the maximum intake was 100 and no admission was
permitted in the second shift. The court further noted that Appendix 3 to the
Guidelines and handbook applicable for the year 2019–20 stated this position.
The policy and regulations framed by AICTE were not subject to challenge
before the High Court. According to the High Court no institution could admit,
nor PCI could register students of the second shift and students beyond the
prescribed intake capacity. In these circumstances, it was concluded that that no
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permission could be given to the society to admit students beyond the
permissible limit in terms of the regulations in approval process handbook. The
High Court also rejected the petitioners’ arguments that its staff would be
rendered unemployed if the AICTE’s regulations and policies were to be applied
and it were to act in accordance with the reduced intake. In view of these
findings, the High Court dismissed the society’s writ petition. The society is
therefore before this court, in appeal.

7. Mr. Shyam Divan, learned senior counsel argues that the AICTE had
violated the fundamental condition of providing a fair opportunity to the society
before reducing the intake. It was urged that the impugned judgment did not
consider that the society was entitled to continue with the existing intake
capacity in terms of the Act, constituting the All India Council for Technical
Education Act
, 1987, and the Regulations framed thereunder. Learned senior
counsel endeavoured to rely on the regulations and stated that there was no
specific bar as regard existing institutions, preventing them from continuing to
admit a particular number of students and organising shifts in all classes. It was
submitted that in the absence of a specific bar in the regulations, or a bar under
the parent enactment, the respondent could not have arbitrarily insisted that the
intake capacity – which primarily applied to new institutions, were to be applied
to all existing colleges.

8. Learned senior counsel urged that once the college or educational
institution is permitted to set-up an institution with a specific capacity, the
reduction of such capacity has to be justified by some compelling necessity. In
the absence of such a necessity, the educational institution’s right to carry on
business, trade or vocation of its choice in exercise of the rights conferred under
Article 19(1)(g) would be severely curtailed. It was urged that in other words,
absent a specific statutory provision, neither regulations nor policies could cut
down the intake capacity which was originally permitted. Learned senior
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counsel further elaborated that the ill effects of such restrictions are self-evident
because the college would face severe financial crisis inasmuch as its capacity –
in terms of teaching and other manpower as well as the physical infrastructure
would be rendered surplus; its financial arrangements would be disturbed.

9. Learned counsel for the AICTE and PCI submitted that long ago, in 2010,
the PCI was aware that certain institutions and colleges wished to start
pharmacy colleges in the second shift. To stop this move, a letter dated
24.01.2010 was issued along with a public notice, clearly stating that second
shift admissions could not be recognized and that the maximum intake would
not exceed 100. This was further followed up through a letter and notice dated
10.09.2010 informing all pharmacy institutions, State Governments, examining
authorities and others concerned that approval of admissions made over and
above the sanctioned intake could not be forthcoming by the PCI and that such
students admitted beyond the permitted intake capacity would not be eligible for
registration as pharmacists. Likewise, it was clearly stated that pharmacy
courses in the second shift would not be considered for approval under Section
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of the Pharmacy Act, 1948, for purposes of the registration of professionals.
It was further submitted that the B. Pharma course Regulations of 2014,
stipulated that the PCI would prescribe the maximum intake capacity in any
particular pharmaceutical college. This position was known to all despite which
institutions and colleges went ahead on the strength of the AICTE notifications,
to admit students in the second shift and also exceed the notified intake –
beyond the regulations framed by the Council.

10. It is submitted that Chapter VI of the Approval Process Handbook 2019-
2020- applicable to all technical institutes (existing/new), clearly stipulates that
maximum intake allowed in a Technical Institution shall be as per the Appendix

3. Clause 6.3 of chapter VI of the Approval Process Handbook 2019-2020 is
reproduced below:

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“6.3 The “Maximum Intake Allowed” in a Technical
Institution offering Technical Programme(s) at Diploma/
Post Diploma Certificate/ Under Graduate Degree/Post
Graduate Diploma/ Post Graduate Degree Level,
WITHOUT NBA, shall be as per the Appendix 3 of
Approval Process Handbook. However, for the
Programmes other than Pharmacy and Architecture and
Planning in Diploma/Under Graduate Level, a
MAXIMUM OF THREE DIVISIONS PER COURSE is
permissible WITH NBA, applicable to MBA also.”

11. It is submitted that the PCI does not register students of the second shift
and students beyond the prescribed intake and that if petitioner’s college is
allowed to admit students, it would be at their peril; it is the students who may
have to undergo hardship after passing out the course. The AICTE, considering
the fate of the students and to streamline the intake of students of the Pharmacy
Courses and also to avoid any contradiction or inconsistencies in the decision
taken by PCI, changed its policy to reduce intake.

Analysis and conclusions:

12. During the hearing, the Court was apprised of the fact that issues as to
which body, i.e. the AICTE or PCI would be primarily responsible for
regulation of pharmaceutical regulation in India is pending consideration before
another Bench in several matters [T.P.(C) 87/2014 The Pharmacy Council of
India v. Dr. S.K. Toshniwal Educational Trusts Vidarbha Institute of Pharmacy
and Ors
. etc.; SLP(C) 4124/2016 The Pharmacy Council of India thr. its
Registar cum Secretary v. The State of Maharasthra Higher Technical
Education and Government Department
– totalling about 17 proceedings) are
pending hearing before another Bench. In this view of the matter, this court does
not propose to finally deal with the question of primacy of regulatory power in
the field of pharmaceutical regulation. What is evident however is that the
controversy before this court appears to have arisen especially on account of the
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conflicting claims to primacy made by the PCI on the one hand – on account of
the provisions contained in the Pharmacy Act, which authorised it to prescribe
norms and standards both in respect of pharmaceutical education as well as
regulation of the provision of the pharmacists and the power of the AICTE
under the AICTE Act to regulate technical education (“technical” being defined
as inclusive of pharmaceutical education in India). Fortunately, the PCI and the
AICTE now arrived at an understanding to move henceforth in a concerted
manner in terms of the minutes of meeting held under the aegis of the concerned
Minister on 03.01.2018. The relevant portions of the decisions taken in the said
meeting are reproduced below:

“2. During the meeting, it was noted that both the
Pharmacy Act of 1948 and AICTE Act of 1987 contain
provisions regarding pharmacy education leading to
duplication of regulations and considerable confusion at the
field level. It was unanimously agreed that this dual
regulation should be ended forthwith and in the following
manner:

(i) The AICTE Act governing the general technical education
would be amended deleting ‘pharmacy’ from its mandate. The
pharmacy education would thereafter be governed by the
Pharmacy Act, 1948.

(ii) Till such time the amendment takes place, PCI and
AICTE will jointly inspect the institutions as and when
required for maintaining required standards of education.
Suitable structure should be built for coordination between
both the organizations so that, even in the case of surprise
inspections, the participation of representatives of both the
regulators is ensured.

(iii) It was decided that affidavits reflecting these
decisions may be filed by both Ministries in various pending
court cases and withdrawal/dropping of proceedings may be
prayed for.

3. It has been suggested that using the mode of mandatory
disclosures (on the website of pharmacy institutions) on the
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performance parameters laid down by the regulators would
work better than annual physical inspections currently being
carried out by the PCI. Accordingly, PCI may work on
reducing the number of inspections being carried out.”

13. It is apparent that the college in this case proceeded to admit students
asserting its right to do so, having regard to the AICTE regulations on account
of the prevailing confusion. The PCI regulations were clear vis-a-vis the intake;
to avoid any doubts, the situation was clarified by the public notice issued on
10.09.2010. Nevertheless, this court is of the opinion that since the society and
the college took the precaution of approaching the High Court in a timely
manner by filing writ petitions for each academic year (and the High Court
granted permission – albeit through interim orders- to admit students up to a
total intake of 240, annually), and having regard to the unsettled nature of the
position which existed- vis-à-vis the regulatory sphere, the interests of students
who were admitted up to and inclusive of the academic year 2018-19 and who
had graduated would have to be protected.

14. This Court notices that at the stage of taking cognizance of the present
petition and issuing notice, the State of Maharashtra was directed to upload the
name of the petitioner’s college in its web portal subject to final orders. At the
same time, by the order dated 26.07.2019, the Court had clearly stated that no
students would be allocated in the meanwhile. During the hearing, it transpired
that the petitioner college had in effect admitted students in excess of the
notified intake capacity of 100 and had also admitted students in the second
shift despite the orders of the court (dated 26.07.2019). Clearly, therefore, such
of the students who are admitted beyond the sanctioned intake capacity of 100
and those admitted in the second shift were so admitted contrary to this Court’s
order. Except such circumstance, this Court is of the opinion that all admissions
made by the petitioner’s college, requires to be regularized and those students
who had graduated in the past need to be protected.

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15. In view of the above discussion and, without in any manner deciding
finally the issue of primacy of the two regulatory authorities, having regard to
the minutes of their meeting dated 03.01.2018, the Court hereby directs the PCI
to give due recognition to such of the students who had been admitted in the
past during the pendency of all proceedings upto the total intake capacity of 240
(180 in the first shift and 60 in the second shift) on account of the interim orders
made. The PCI is, therefore, directed also to give consequential benefit of
registration to such students who graduated in the concerned undergraduate
courses. Similarly, such of the students who fall within the 100 seats permitted
intake capacity, notified for academic year 2019-20, shall be given due
recognition and registration. However, students admitted beyond such capacity
and those admitted in the second shift for academic year 2019-20 shall not be
given such benefits.

16. This appeal is disposed of in the above directions keeping all questions of
law open for arguments and decision in the other pending proceedings.

………………………………….J.

[R. F. NARIMAN]

………………………………….J.

[S. RAVINDRA BHAT]

New Delhi,
January 31, 2020.



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