Chhattisgarh High Court: P. Sam Koshy allowed the interim application and stated that the final approval and permission is subject to the final outcome of the present petition.
The present Writ Petition was filed aggrieved by two separate orders which imposed a moratorium/ban on the opening of the new Colleges and Institutions for imparting B. Pharma and D. Pharma courses in the entire Country for a period of five years. The Petitioners have further sought for an interim direction to the Respondents to facilitate the Petitioners to apply for necessary approval and sanction for opening of a new Pharmacy institution imparting B. Pharma and D. Pharma courses and further to direct the Respondents to accept, process, scrutinize and submit a report on the basis of the scrutiny so far as the entitlement for grant of necessary sanction and approval for the opening of a new Pharmacy institution are concerned.
Counsel for petitioner Mr. Sidharth Gupta and Mr. Pranjal Agarwal submitted that the orders violate the fundamental right under Article 19(1) (g) guaranteed under the Constitution of India and is also in contravention to the provisions of the Pharmacy Act, 1948. He further submitted that the entire Act speaks of the Respondent 1 issuing regulation, regulating the courses of B. Pharma and D. Pharma and the Institutions imparting the said courses. However, at the same time, the Respondent 1 is not empowered to impose a ban on the establishment of the new Colleges and Institutions imparting the courses of Pharmacy. The same could have decided only by the Government and not the Agency monitoring the Pharmacy institutions.
Counsel for respondents Mr. Ramakant Mishra, Mr. Tushar Dhar Diwan and Ms. Samiksha Gupta submitted that that the two orders passed by Respondent 1 have been issued in the year 2019 and that they are already in force for a period of more than two years now and therefore there is no necessity for the staying of the effect and operation of the two Orders at this stage and the matter itself can be finally decided instead of deciding the interim application at this juncture. He further submitted that that the object and intension of the entire Act i.e. the Pharmacy Act, 1948, is to ensure regulations and those too educational regulations. Respondent No.1 has got all the powers to take appropriate decision in the larger interest of the public, particularly so far as the Institutions imparting the Pharmacy courses are concerned. According to Assistant Solicitor General, once when there is a power to issue instructions and regulations so far as the courses of B. Pharma and D. Pharma are concerned, it includes the power of the Agency i.e. Respondent No.1 to impose a ban and prohibition insofar as establishment of new Colleges are concerned. He further submitted that the very purpose of issuance of the two Orders dated 17.7.2019 and 9.9.2019 is to put a check and to bring a curve on the recent mushrooming of the Colleges and Institutions imparting the Pharmacy courses.
The Court observed that the Petitioners have invested huge amount of money for the purpose of putting up requisite infrastructure and the entire planning and other requirements for the purpose of imparting the Pharmacy courses have already been accomplished by the Petitioners. Subsequently, the Petitioners, for grant of necessary furnishings in order to start the Pharmacy courses, applied to the State Government for the requisite NOC which was thereby granted. The Petitioners establishment then approached Respondent 2 University for affiliation whereby the orders under challenge were communicated to the petitioners and the affiliation was rejected.
“From the plain reading of the two impugned Orders, it apparently shows that initially when the first Order was passed on 17.7.2019, the North Eastern region of the Country was excluded from the applicability of the moratorium/ban. However, when the second Order was passed on 9-9-2019 there have been many exceptions that have been carved out and the first Order was diluted to a great extent.”
The Court observed that in order to start an Institution, there are series of activities which have to be planned and executed before finally going in for the admissions of the students and in the instant case the Petitioners have completed the requisite infrastructure facilities in terms of the requirements under the guidelines laid down by the Pharmacy Council of India. It was further observed that the approvals asked by the petitioner is to prevent wastage of time and in turn precious academic sessions as the time taken for approvals are huge and if the inspections and other formalities are done beforehand so that if any deficiency arises, it can addressed on time too.
The Court thus “directed the Respondents shall permit the Petitioners to submit their application required for the necessary permission and approval and also for grant of necessary affiliation for the academic session 2022-23.”
“The Respondents shall allow the Petitioners to submit their application either by opening the portal and accepting the application or, in the alternative, receiving the application by any other mode permissible.”
“The Respondents are further directed to process the application and conclude the requisite formalities of inspection etc., except for the granting of permission and approval for going in for the admissions.”
[Chouksey College of Pharmacy v. State of Chhattisgarh, 2021 SCC OnLine Chh 3735, decided by 09-12-2021]