ORDER
1. By this petition under Article 226 of Constitution of India, the petitioner has prayed for quashing of the communication bearing No. 37-202/91-PCI/528-30, dated 20-5-1993, issued by the Secretary, Pharmacy Council of India -- the 1st respondent vide Annexure-N and for issue of a writ in the nature of writ of mandamus to the first respondent to accord approval to the Diploma Course in Pharmacy conducted by petitioner-Institution. When the petition had been filed, a prayer for interim relief had also been made. This Court vide its order dated 4-6-1997, granted the interim order of stay, staying the operation of the direction contained in Annexure-N. That interim order of stay yet continued to be in operation.
I have heard Sri. S. P. Shankar learned counsel for the petitioner and Sri. Mukund Menon V., Add). Central Government Standing Counsel, appearing for the Pharmacy Council-1st respondent and Smt. Premavathi, High Court Government Pleader for Respondent No. 2.
2. According to the allegations made in the writ petition, the petitioner-Institution came into existence as a minority institution in the year 1983-84 and started the College of Pharmacy in the same year and has continued the turning out students in Diploma of Pharmacy each year. The Government of Karnataka vide its order bearing No. HFW 70 PTD 82 dated 14-12-1982, sanctioned the starting of Diploma Course in Pharmacy in the petitioner-Institution. The petitionersought the approval of the Institution which was recommended by the Government and the same had been granted to the Petitioner-Institution for the years 1983-84 to 1990-91. Thereafter the Petitioner-Institution also availed approval and students were admitted in the later years and appeared in the written examination held in 1993. According to the Petitioner's case on 11-10-1991, respondent No. 1, issued a memorandum proposing the withdrawal of approval under Section 13 of the Pharmacy Act, 1948 (Act No. 8 of 1948), for short 'Act', and according to the admitted case, that the proposal of withdrawal was based on certain observations in the seventh inspection report of 1990. Petitioner's case is that copy of the 7th Inspection Report was made available to him and he sent compliance report as well as his parawise remarks on May 30th, 1991. On 20-6-1991, a reminder was also sent. Petitioner also sent parawise remarks vide Annexure-C and reported compliance.
Further, the petitioner's case is that on 22-10-1991, petitioner again sent a further report to respondent No. 1, as per Annexure-E, indicating as to how the defects or deficiencies have been removed. That petitioner was also required by letter dated 28-8-1992, to make payment of affiliation fee for the year 1992-93, as per Annexure-H. That he also sent, a report to the Government, namely, Government of Karnataka by the Secretary to Health and Family Welfare Department, on 6-7-1992, indicating that all defects and deficiencies have been removed and the objections contained in the 7th report have been complied with. That the State of Karnataka Government also sent its recommendations to the effect that the petitioner has complied with the deficiencies and requirements as per Inspection Report and that the approval given to the College may be continued. In its letter Annexure-M, the State of Karnataka further mentioned that the further proceedings in the matter may be withdrawn.
3. That, the petitioner's further case is that on 20th May, 1993, respondent No. 1, had issued on 20th May, 1993 respondent No. 1, had issued a communication to theeffect that decision has been taken by first respondent to withdraw the approval which had been granted to petitioner's institution and it had already been withdrawn by the letter dated 16-10-1992, vide letter 'N' dated 20-5-1993 annexed to this writ petition.
4. The counter affidavit/statement of objections have been filed on behalf of the opposite parties.
5. The petitioner's counsel submitted before me that any cancellation or withdrawal of approval made by the respondents if any is illegal and not in conformity with the requirement of Section 13 of the Indian Pharmacy Act, for short, 'Act', as the necessary enquiry has not been done.
While, the contention on behalf of the opposite parties that there has been full compliance with the requirements of Section 13 of the Act. I have been taken through the records of the case. No doubt, in Annexure-N, to this writ petition which is dated May 20th, 1993, it has been mentioned by Council in its letter dated 16-10-1992 that it had been intimated that after holding 1993 final examination for the students admitted upto 1991-92 academic session, the approval granted to the petitioner's institution had been withdrawn. That Annexure 'M' to the writ petition, i.e., the letter dated 2-3-1993, of the Secretary to Govt. of Health and Family Welfare Department reveals that letter dated 16-10-1992, was a notice for initiating proceeding for withdrawal arid it was a show cause notice. It has been referred to Pharmacy Council's letter as Pharmacy Council of India's show cause notice No. 17-202/91-PCI/4887-89 dated 16-10-1992, that it has not been produced by any of the parties.
In paragraph 5 of the counter-statement, it has been mentioned that 1 st respondent wrote a letter on 20-5-1993, in which petitioner was specifically informed that withdrawal of approval has already been communicated by Council's letter dated 16-10-1992. The allegations of paragraph-5 of the counter statement only repeat the contents of letter dated 20-5-1993, but what actually letter dated 16-10-1993, did contain is not clear. No copy ofthe letter dated 16-10-1992, has been filed as annexure to statement of objection/counter affidavit. That a perusal of annexure Nos. L and M dated 23-1-1993 and 2-3-1993, i.e., the letter of Drugs Control Department to the Secretary to State Govt. Health and Family refer that letter dated 16-10-1992, as Pharmacy Council of India's show cause notice No. 17-202/91-PC1/4887-89 dated 16-10-1992.
6. The learned Counsel for the respondents submitted that there has been compliance with the requirements of Section 13 of the Act, because notice at Annexure I was issued to the petitioner in 1991, on the basis of report of 1990. Thereafter, the petitioner though did not send any reply through the State Government, but beyond doubt he addressed the communication directly to the Council indicating and intimating that full compliance of the requirements has been made, but as the compliance report had not been communicated through the State Government and it was not considered. That as it had not been sent through proper forum the learned Counsel for the respondents submitted that it was not considered.
7. The learned Counsel for the respondent further urged that Annexure-D and E to writ petition were not in reply to show cause notice and the representation or reply to show cause notice (sic) Annexures D and E were not considered.
8. I have applied my mind to the contentions made by learned Counsels for both the parties. That Annexures D and E to this Writ petition which had directly been addressed to the Secretary of the Pharmacy Council could be taken to be the representation of the petitioner indicating that due compliance with deficiencies pointed out in inspector's report had been made and there is no question of withdrawal of approval on merits and that representation could be considered by one way or the other by the Council itself.
9. My attention has been invited to the notification issued by the respondents. It reads as under:
Resolution No. 53/PCE/791:--'In pursu-ance of the provisions of sub-section (2) of Section 13 of the Pharmacy Act, 1948 (8 of 1948), the Pharmacy Council of India declares that the Diploma Course in Pharmacy Conducted by the Aristotle College of Pharmacy, Robertsonpet, Karnataka and the Diploma Examination in Pharmacy of the subject institution conducted by the Board of Examining Authority, C/o. Drugs Controller for the State of Karnataka, Palace, Road, Bangalore shall be deemed to be approved only when completed or passed by 1993 final year examinations for the students admitted upto 1991-92 academic session.'
10. Section 12 of the Pharmacy Act, provides for approval of course of study and examination. Section 12 reads as under:
'Any authority in a State which conducts a course of study for pharmacists may apply to the Central Council for approval of the course, and the Central Council, if satisfied, after such enquiry as it thinks fit to make, that the said course of study is in conformity with Education Regulations, shall declare the said course of study to be an approved examination for pharmacists.
(2) Any authority in a State which holds an examination in pharmacy may apply to the Central Council for approval of the examination, and the Central Council, if satisfied, after such enquiry as it thinks fit to make, that the said examination is in conformity with the Education Regulations, shall declare the said examination to be an approved examination for the purpose of qualifying for registration as a pharmacist under this Act.
(3) Every authority in the State whichconducts an approved course of study orholds an approved examination shall furnishsuch information as the Central Council may,from time to time, require as to the courses ofstudy and training and examination to beundergone, as to the ages at which suchcourses of study and examination are required to be undergone and generally as to therequisites for such courses of study andexamination.'
11. Section 13 of the Act provides for the withdrawal of approval and for our presentpurpose, Section 13 is material. Section 13 of the Act reads as under:
13. Withdrawal of approval:-- '(1) where the Executive Committee reports to the Central Council that an approved course of study or an approved examination does not continue to be in conformity with the Education Regulations the Central Council shall give notice to the authority concerned of its intention to take into consideration the question of withdrawing the declaration of approval accorded to the course of study or examination, as the case may be, and the said authority shall within three months from the receipt of such notice forward to the Central Council through the State Government such representation in the matter as it may wish to make.
(2) After considering any representation which may be received from the authority concerned and any observations thereon which the State Government may think fit to make, the Council may declare that the course of study or the examination shall be deemed to be approved only when completed or passed, as the case may be, before a specified date.'
A reading of Section 13 reveals that where the Executive Committee reports to the Central Council that the approved course of study or examination has not been continued in conformity with the Education regulations, then in that case, the Central Council is required to issue the notice to the authority concerned of its intention to take into consideration the question of withdrawing the declaration of approval accorded to the course of study and examination as the case may be. The section further provides that the said authority to whom the notice is issued shall within three months of the notice forward to the Central Council, his objections or representations as the authority may desire to make. Sub-section (2) of Section 13 further provides that before making the order of withdrawal, the Council has to take into consideration the representation which may be made by the authority concerned along with the observations on that representation of the authority made by the Government ifany and thereafter, it shall pass the order expressing its intention and action of withdrawal of approval and declaration that the course of study or examination continued during that period shall be deemed to be approved only when completed or passed before a specific date. The latter portion of that would indicate that those, who have joined earlier must know that they have to pass the examination by or before a particular specific date.
12. A combined reading of the two provisions by necessary duplicator requires and indicates that the Council has to pass a clear and specific order of withdrawal of approval. When withdrawal of approval order is passed, to save the carriers (careers) of those, who are continuing the course of study from the earlier period, it has to be specifically declared that the approval will be deemed to continue in respect thereof, provided they pass or complete their course of examination by or before that particular, i.e., specified date. So, passing of order of withdrawal is the first act to be done and ancillary, is the subsequent declaration. It leads to that if the positive order is not passed for withdrawal, the subsequent declaration may be said to be defective and ineffecitve. This appears to be position under Section 13 of the Act from the reading of entire section.
My attention has been invited by the learned Counsel for the respondents to Council's letter, i.e., Annexure N to this writ petition and to Gazette notification dated 5-12-1992, i.e., Annexure 9, to the statement of objections which has been quoted by me earlier, which is referred as resolution. The resolution does nowhere mention that the approval is being withdrawn.
13. The learned Counsel for the opposite parties submitted that it should be deemed that the approval was withdrawn and further contended that section does not require that there should be positive order. In my opinion, there is no substance in the contentions of the learned Counsel for the opposite parties. The scheme of the section reveals that first notice to be issued of intention to withdraw. Then, if intention to Withdraw is to be given effect thereafter, either, the ordershould indicate that intention to withdraw is given effect in positive forum or that the proceedings is being dropped. In this view of the matter, I am of the opinion that when the authority has to consider the representations etc. when it makes up the mind to withdraw approval and reject the representations, it must clearly exhibit that mind in a positive, or negative forum in the order. After exhibiting that mind by providing that the prior approval is withdrawn, that section requires the declaration to the effect that the withdrawal is to be prospective as contemplated and it should be declared in the sense that those who already joined and are continuing the courses prior to withdrawal and have to complete it by a specified date to be specified in the order. That the notification should clarify that withdrawal will have no effect in respect to them provided they complete and pass the course before the specific date. As such, in my opinion, there must be positive act of withdrawal while passing the order.
The resolution quoted above neither indicates the action or decision of withdrawal of the approval nor can it be said to indicate that the authority has withdrawn the approval order. The 16-10-1992 order has not been produced and filed before this Court. It is merely been urged that it is with the other party. Apart from this, when the representation had been made to the Government and petitioner as a matter of precaution sent one copy to the respondents. So, the Council should have made enquiries whether petitioner had sent any representation to or through the Government and if they are pending with them or not, but that does not appear to have been done.
14. In the present case, it appears that report of compliance in the form of representation had been filed subsequently also and thereon, the Government also indicated its remarks as per Annexure L and M to this writ petition.
In this view of the matter, it appears to me just and proper to allow this writ petition tothe extent that so far as the sudents, who have been allowed to appear . in examinations under the interim order of this Court it has to be taken that the approval was continuing, they shall not be affected and shall not be deemed that there has been any withdrawal.
15. It is open to the respondents toconsider the matter of withdrawal of approval if they think it necessary, but that must be in the light of the representation or compliance report and the recommendations of the Government as contained in Annexures K, L and M and as well as subsequent developments which and if come to be noticed against the petitioner, petitioner would be given opportunity to meet the same. As regards future admission, unless the respondents intend to take any action against the petitioner and the opposite parties issue proper notice to the petitioner, until any fresh proceedings are taken by the opposite parties against the petitioner under the law, it will be open to petitioner to do so in terms and subject to original approval granted by the Pharmacy Council.
In the light of the observations made above, the petitioner -- Institution's approval shall continue. The writ petition is as such allowed. The direction is issued to the opposite parties to take the petitioner -- Institution as continued to be approved one, but, subject to right of respondents under Section 13, of Act which is always open to the respondent to take action in the context of 1990 report, the objections and the recommendations of the State Government as well as subsequent development if any after issuing due notice to show cause in accordance with the due process of law and observation made above Costs are made easy.
Smt. Premavathi, learned High Court Government Pleader is permitted to file memo of appearance.
16. Petition allowed.