Fathima vs the Kerala University of Health Sciences

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 26TH DAY OF MAY 2022 / 5TH JYAISHTA, 1944 WP(C) NO. 31995 OF 2019 PETITIONER/S: FATHIMA AGED 19 YEARS D/O. MUHAMMED KUNHI.M., MEETHAL MOVVAL HOUSE, PALLIKKARA, MOVVAL P.O., KASARGOD - 671 316. BY ADVS. GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE RESPONDENT/S:

1 THE KERALA UNIVERSITY OF HEALTH SCIENCES MULAMKUNNATHUKAVU, MEDICAL COLLEGE P.O., TRICHUR DISTRICT 680 596. REPRESENTED BY THE REGISTRAR. 2 THE VICE CHANCELLOR, KERALA UNIVERSITY OF HEALTH SCIENCES, MULAMKUNNATHUKAVU, MEDICAL COLLEGE P.O. TRICHUR DISTRICT 680 596. 3 PHARMACY COUNCIL OF INDIA, COMBINED COUNCILS BUILDING, TEMPLE LANE, KOTLA ROAD, AIWAN-E-GHALIB MARG, POST BOX NO. 7020, NEW DELHI 110 002, REPRESENTED BY ITS CHAIRMAN. 4 MALIK DEENAR COLLEGE OF PHARMACY SEETHANGOLI, BELA POST, KASARAGOD DISTRICT 671 321, REPRESENTED BY ITS PRINCIPAL. BY ADVS. SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES SHRI.P.VIJAYAKUMAR, ASG OF INDIA SRI.N.ANAND

WP(C) NO. 31995 OF 2019 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 31995 OF 2019 3

JUDGMENT

The petitioner is a student pursuing the 1st year

B.Pharm Course at the Malik Deenar College of Pharmacy, Kasaragod, an institution affiliated with the Kerala University of Health Sciences ( ‘KUHS’ for short). This writ petition is filed seeking issuance of directions to the 1st respondent to adopt the minimum qualification for admission prescribed in Ext.P6 regulation in the matter of admission to B.Pharm Course in the State and also for quasing Ext.P7 order insofar as it denies the registration to the petitioner.

2. According to the petitioner, responding to the notification for admission to the B.Pharm course conducted in the 4th respondent College, she submitted an application

online. As she had the requisite qualification, she was included in the common merit list and later was allotted admission to the 4th respondent college for the academic year 2019-2020. While she was pursuing her education as

WP(C) NO. 31995 OF 2019 4 aforesaid, the College forwarded the application and other details to the University. On receipt of the records, the University has issued Ext.P5 communication keeping the registration of the petitioner as pending on the ground that the petitioner had failed to meet the eligibility criteria for admission to the B.Pharm course.

3. The petitioner contends that the minimum

qualification for admission for the B.Pharm course has been laid down by the Pharmacy Council of India and placing reliance on Ext.P6, it is stated that the only requirement is that the candidate should have passed 10+2 Examination conducted by the respective

State/Central Government Authorities recognised as equivalent to 10+2 examination by the Association of Indian Universities with English as one of the subjects and Physics, Chemistry, Mathematics and/or Biology as optional subjects individually. Any other qualification approved by the Pharmacy Council of India as equivalent to any of the

WP(C) NO. 31995 OF 2019 5

above examinations. It is stated that the regulations issued by the Pharmacy Council is binding on the States. The 1st respondent University is not entitled to make any rules or regulations which are in conflict with or impinge upon Ext.P6 regulations. The University has issued Ext.P7 regulations as per which, the minimum qualifications prescribed for admission to B.Pharm course is that the

candidate should have passed Higher Secondary

Examination, Kerala or examinations recognised as equivalent thereto with 50% marks in Biology/Mathematics separately and 50% marks in Physics, Chemistry and Biology/Mathematics put together. The regulations issued by the 1st respondent is not in consonance with the regulations issued by the 3rd respondent is the assertion of

the petitioner. It is contended that the petitioner has completed her X & XII standards and possess the eligibility criteria prescribed by the 3rd respondent for admission to B.Pharm course. The petitioner has scored more than 50% WP(C) NO. 31995 OF 2019 6 marks in Physics, Chemistry and Mathematics. However, she has failed the criteria to secure 50% marks for Mathematics alone. According to the petitioner, the University was not justified in denying the registration of the petitioner on account of their conflicting regulations. It is in the afore circumstances that the petitioner is before this Court seeking the following reliefs:-

1. Issue a writ, order or direction to the 1st respondent to adopt the minimum qualification for admission prescribed in Ext.P6 regulation in the matter of admission to B.Pharm course in the State;

2. Issue a writ of certiorari or any other appropriate writ setting aside Ext.P7 to the extent it denies the registration to the petitioner;

3. Issue a writ of mandamus or any other appropriate writ directing the 1st respondent to register the petitioner as a candidate duly qualified to pursue the B.Pharm Course;

4. Declare that the petitioner is entitled to

admission for B.Pharm courses under the University and the University is bound to register her a candidate with the eligibility criteria as prescribed in Exhibit P6.

4. A counter affidavit has been filed by the 1st WP(C) NO. 31995 OF 2019 7 respondent wherein it is stated that the registration of the petitioner was kept pending since the petitioner did not

possess the minimum qualification prescribed for admission to the course by the University. It is contended that the regulations framed by the 3rd respondent is by invoking powers under Section 10 of the Pharmacy Act, 1948 which says that the Council is empowered to fix the minimum standards for the course. The University is free to fix a higher standard even in respect of norms which are legally fixed by the 3rd respondent to ensure higher standards in the field of education. It is stated that the 4th respondent was aware of the regulations when admission was given to the petitioner. The petitioner was thereafter permitted to attend the classes. The 4th respondent could

have invited applications only in terms of Ext.P7 regulations of the University and the petitioner could not have made an application for admission in the said circumstances. In the light of Ext.P7 regulations issued by WP(C) NO. 31995 OF 2019 8 the University, neither the petitioner nor the College can feign ignorance about the eligibility criteria. The admission was sought and obtained disregarding Ext.P7 regulation and in that view of the matter, the mere fact that the petitioner attended the classes and took part in the internal examination will not make any difference.

5. A counter affidavit has been filed by the 4th

respondent wherein it is stated that out of the 60 seats in B.Pharm allotted to the College, 50% has to be filled by the Commissioner for Entrance Examinations and the rest of the seats are to the filled up pursuant to a selection process conducted by the Kerala State Self Financing Pharmacy College Management Association. Ext.R4(c) prospectus was issued for the academic year 2019-2020 wherein it was stated that a candidate aspiring to prosecute the B.Pharm course had to secure 50% marks in Biology/ Mathematics/ Biotechnology/ Computer Science separately and 50% marks in Physics, Chemistry and WP(C) NO. 31995 OF 2019 9 Biology/ Mathematics/ Biotechnology/ Computer Science put together. Later, on 27.5.2019, the Association published Ext.R4(d) revised prospectus wherein candidates who had scored 50% marks in Biology/ Mathematics separately and 50% marks in Physics, Chemistry and Biology/Mathematics put together were declared eligible to prosecute the course of B.Pharm. After receiving the applications online and after concluding the process of normalisation, a ranked list was published. Later, Ext.R4(e)

admission notification was published to which the petitioner had submitted an application. Later, the same was processed and the petitioner was allotted a seat in the 4th respondent College. It is further contended that the eligibility of the petitioner to pursue the B.Pharm Course can be tested only under Ext.P6 regulations framed by the Pharmacy Council and not under the Regulations framed by the State University. It is stated that the petitioner has met the standards laid down by the Pharmacy Council and

WP(C) NO. 31995 OF 2019 10 therefore, the student should be permitted to continue with the B.Pharm course.

6. I have considered the submissions advanced and

have anxiously gone through the records. The Pharmacy council has framed the education regulations in exercise of the powers conferred on the council under Section 10 of the Pharmacy Act, 1948. Section 10 only provides that the regulations contemplate only the minimum standards and those standards does not relate to the admission process

to the course. Section 10 is extracted below for easy reference

10. Education Regulations.-

(1) Subject to the provisions of this section, the

Central Council may, subject to the approval of the Central Government, make regulations, to be called the Education Regulations, prescribing the minimum standard of education required for qualification as a pharmacist.

(2) In particular and without prejudice to the generality of the foregoing power, the Education Regulations may prescribe- WP(C) NO. 31995 OF 2019 11

(a) the nature and period of study and of practical training to be undertaken before admission to an examination;

(b) the equipment and facilities to be provided for students undergoing approved courses of study;

(c) the subjects of examination and the standards therein to be attained;

(d) any other conditions of admission to examinations.

(3) Copies of the draft of the Education Regulations

and of all Subsequent amendments thereof shall be furnished by the Central Council to all State Governments, and the Central Council shall before submitting the Education Regulations or any amendment thereof, as the case may be, to the Central Government for approval under sub- section (1) take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.

(4) The Education Regulations shall be published in the Official Gazette and in such other manner as the Central Council may direct.

(5) The Executive Committee shall from time to time

report to the Central Council on the efficacy of the Education Regulations and may recommend to the Central Council such amendments thereof as it may think fit.

7. As is clear from the provision, the regulation

WP(C) NO. 31995 OF 2019 12 contemplates only the minimum standards and those standards mentioned in the act do not relate to the admission process to the course. Exhibit P6 produced by the petitioner are the rules and syllabus framed invoking the powers conferred under regulations 6, 7 and 8 of the Bachelor of Pharmacy Course Regulations, 2014. Those regulations only deal with the course of training, practical training and syllabus. On the other hand Exhibit P7 regulations issued by the University were in place even before the petitioner had submitted her application for admission to the course. The 4th respondent cannot plead ignorance of the regulations and it is clear from the sequence of events that it was by ignoring the higher standards fixed by the University that admission was granted to the student concerned. As rightly submitted by the Standing Counsel appearing for the 1st respondent, the 4th respondent could have invited applications only in terms of Exhibit P7 regulations of the University.

WP(C) NO. 31995 OF 2019 13

8. The law is now fairly well settled that while it is

not open to the Universities to dilute the norms and standards prescribed by the central Councils, it is always open to the Universities to prescribe enhanced norms. As regards the role of the Universities vis-à-vis the AICTE, the Apex Court had held in Bharathidasan University v. All India Council for Technical Education [(2001) 8 SCC 676], that AICTE is not a superpower with a devastating role in undermining the status, authority and autonomous functioning of the Universities in areas and spheres assigned to them. This view was followed in Association of Management of Private Colleges v. All India Council for Technical Education [(2013) 8 SCC 271] and later in APJ Abdul Kalam Technological University and Another v. Jai Bharat College of Management and Engineering Technology and Ors. [2020 SCC Online 1015]. In view of the law settled by the Apex Court, I am not inclined to accept the contention of the

WP(C) NO. 31995 OF 2019 14 petitioner.

9. However there is yet another matter. This writ

petition was filed on 25.11.2019 and by an interim order

dated 11.02.2020, a learned Single Judge of this Court directed the respondents 1 and 2 to register the petitioner for the ensuing B.Pharm examination and to permit her to appear for the same. However, the results were ordered to be kept in abeyance. Later, by order dated 17.08.2021, a learned Single Judge of this Court directed the University to

publish the results provisionally. Later, by order dated 27.04.2021, a learned Single Judge of this Court had permitted the petitioner to register for the 2nd semester examination and also permitted her to appear for the exam thereafter. The declaration of the results were ordered to be kept in abeyance. Thus the sequence of events would show that the petitioner has been pursuing her education on the strength of the interim orders passed by this Court. I find that the petitioner cannot be blamed for the acts

WP(C) NO. 31995 OF 2019 15 committed by the 4th respondent in granting admission to her to pursue her education. The Standing Counsel appearing for the 1st respondent has also submitted before this Court that the University would not want the petitioner to suffer any hardship.

10. In that view of the matter, I am of the considered

opinion that the petitioner is required to be permitted to pursue her education notwithstanding the fact that she did not have the minimum qualification prescribed in Ext.P6 regulation. I take this view because of the subsequent turn of events and also the fact that the petitioner was having the minimum qualification as prescribed by the Pharmacy Council. The above direction is issued in the peculiar facts and circumstances of the instant case and shall not be treated as a precedent. As it is obvious that the 4th respondent has granted admission knowing fully well that the student was not qualified as per the University norms, to prevent such incidents in future,

WP(C) NO. 31995 OF 2019 16 exemplary costs can be imposed to be paid to the University. Resultantly, this writ petition is disposed of by issuing the following directions. a) Ext.P7 insofar as it denies registration to the petitioner for pursuing B.Pharm course in the 4th respondent college will stand quashed. b) There will be a direction to the 1st respondent to register the petitioner as a candidate duly qualified to pursue the B.Pharm course and to permit her to pursue the course and complete the same. c) The results of the petitioner which were ordered to be kept in abeyance by this Court shall be disclosed. d) The 4th respondent shall pay a sum of Rs.50,000/- by way of fine to the 1st respondent for carrying out admissions in violation to Ext.P6 regulations. The amount ordered shall be remitted in WP(C) NO. 31995 OF 2019 17 any event, within a period of thirty days from the date of receipt of a copy of this judgment.

This writ petition is disposed of. Sd/- RAJA VIJAYARAGHAVAN V JUDGE sru WP(C) NO. 31995 OF 2019 18 APPENDIX OF WP(C) 31995/2019 PETITIONER’S EXHIBITS : EXHIBIT P1 TRUE COPY OF THE SSLC CERTIFICATE OF THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE 10+2 CERTIFICATE OF THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE PROGRESS REPORT OF THE PETITIONER FOR THE 1ST SEMESTER SESSIONAL EXAMINATION. EXHIBIT P4 TRUE COPY OF THE PROFORMA REPORT GENERATED BY THE 1ST RESPONDENT UNIVERSITY DATED 29.10.2019. EXHIBIT P5 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT UNIVERSITY DATED 08.11.2019. EXHIBIT P6 TRUE COPY OF THE RELEVANT PORTIONS OF

THE RULES AND SYLLABUS FOR THE B. PHARM COURSE FOR THE ACADEMIC YEAR 2019-20 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE RELEVANT PORTIONS OF THE REGULATION ISSUED BY THE 1ST DESPONDENT FOR THE B. PHARM COURSES. EXHIBIT P8 TRUE COPY OF THE REGULATIONS ISSUED BY THE RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES, KARNATAKA. EXHIBIT P8(A) TRUE COPY OF THE REGULATIONS ISSUED BY MADRASS MEDICAL COLLEGE. EXHIBIT P8 (B) TRUE COPY OF THE OF THE REGULATIONS ISSUED BY RAMAIAH UNIVERSITY OF APPLIED SCIECNCES. EXHIBIT P8 (C) TRUE COPY OF THE OF THE REGULATIONS ISSUED BY KLE COLLEGE OF PHARMACY BENGALURU. WP(C) NO. 31995 OF 2019 19 EXHIBIT P8 (D) TRUE COPY OF THE OF THE REGULATIONS ISSUED BY JSS ACADEMY OF HIGHER EDUCATION AND RESEARCH. EXHIBIT P9 TRUE COPY OF THE NOTIFICATION NO.3036/2020/B2/EXAM-PHARMACY/KUHS DATED 24.1.2020 ISSUED BY THE RESPONDENT UNIVERSITY. EXHIBIT P10 TRUE COPY OF THE INTERIM ORDER DATED 11.2.2020 IN WPC NO.31995/2019 PASSED BY THIS HON’BLE COURT.

EXHIBIT P11         TRUE   COPY    OF   THE   NOTIFICATION
                    NO.2021/9841/EX     PHY/KUHS     DATED
                    13.4.2021    ISSUED    BY    THE   1ST

RESPONDENT UNIVERSITY. EXHIBIT P12 TRUE COPY OF THE NOTIFICATION NO.2021/32968/1/EX PHY/B3/KUHS DATED 16.12.2021 ISSUED BY THE 1ST RESPONDENT UNIVERSITY. EXHIBIT P13 TRUE COPY OF THE NOTIFICATION NO.2022/93711/1/EX PHY/B3/KUHS DATED 22.3.2022 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P14 TRUE COPY OF THE INTERIM ORDER DATED 22.12.2021 IN WPC NO.31995 OF 2019 PASSED BY THIS HON’BLE COURT. EXHIBIT P15 TRUE COPY OF THE NOTIFICATION NO.2022/14142/1/EX PHY/ KUHS DATED 7.5.2022 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P16 TRUE COPY OF THE NOTIFICATION NO.2022/14783/1/EX PHY/KUHS DATED 12.5.2022 ISSUED BY THE 1ST RESPONDENT UNIVERSITY. RESPONDENTS EXHIBITS: EXHIBIT R4(a) TRUE COPY OF THE RELEVANT PORTION OF THE LETTER OF APPROVAL DATED WP(C) NO. 31995 OF 2019 20 10.06.2019 ISSUED BY PHARMACY COUNCIL OF INDIA. EXHIBIT R4(b) TRUE COPY OF THE RELEVANT PORTION OF THE ORDER DATED 19.08.2019 ISSUED BY THE KERALA UNIVERSITY OF HEALTH SCIENCES. EXHIBIT R4(c) TRUE COPY OF THE RELEVANT PORTION OF THE PROSPECTUS UPLOADED BY THE KERALA STATE SELF FINANCING PHARMACY COLLEGE MANAGEMENT ASSOCIATION. EXHIBIT R4(d) TRUE COPY OF THE RELEVANT PORTION OF

THE REVISED PROSPECTUS UPLOADED BY THE KERALA STATE SELF FINANCING PHARMACY COLLEGE MANAGEMENT ASSOCIATION. EXHIBIT R4(e) TRUE COPY OF THE ADMISSION NOTIFICATION 2019-20 ISSUED BY KERALA STATE SELF FINANCING PHARMACY COLLEGE MANAGEMENT ASSOCIATION AS IT APPEARED IN THE MANORAMA DAILY ON 28.05.2019. EXHIBIT R4(f) TRUE COPY OF THE APPLICATION PREFERRED BY THE PETITIONER TO THE KERALA STATE SELF FINANCING PHARMACY COLLEGE MANAGEMENT ASSOCIATION. EXHIBIT R4(g) TRUE COPY OF THE SELECTION MEMO DATED 22.06.2019 ISSUED BY THE KERALA STATE SELF FINANCING PHARMARCY COLLEGE MANAGEMENT ASSOCIATION TO THE PETITIONER.