# Zee College of Pharmacy, Unnao v. State of U.P. & Ors

- **Citation:** (2020) 11 ILRA 5
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-02
- **Case number:** Misc. Single No. 12536 of 2020
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zee-college-of-pharmacy-unnao-v-state-of-u-p-ors-45425
- **Pages:** 5

## Headnote

Civil law - Pharmacy Act, 1948 - Pharmacy
Council of India (PCI) - Power of State
Govt. viz-a-viz PCI- PCI is the apex
statutory body & final authority for
6 INDIAN LAW REPORTS ALLAHABAD SERIES
Pharmacy education - State Government
and all concerned are bound to follow the
policy of PCI - Once PCI had taken a policy
decision with regard to norms for opening
new pharmacy institutions or permission
for new pharmacy courses in the existing
approved pharmacy institutions, it was
beyond
the
ambit
of
the
State
Government or any of its committees to
take a stand at variance with that of PCI.
(Para 9)

PCI policy decision dated 09.09.2019 allowing
existing approved pharmacy institutions to start
additional pharmacy courses - Petitioners were
already running Diploma courses under approval
of PCI, applied for approval of Bachelor of
Pharmacy course - State Review Committee
rejected the proposals of the petitioners by the
impugned decision - Held - it was beyond the
ambit of the State Government or any of its
committees to take a stand at variance with that
of PCI (Para 9)

Allowed (E-5)

List of Cases cited:-

## Text

11 All. Zee College of Pharmacy, Unnao Vs. State of U.P. & Ors.
5
instructions have been given to him by Sri
Devendra Mohan Shukla, Advocate. It
would only amount of hearsay as Dr. L.P.
Misra was not present at the time of
arguments and he has been instructed by
Sri Devendra Mohan Shukla to say that Sri
Dhruv Mathur had argued the matter on
certain points which were not considered
by the Court while passing the judgment.

19. As regards the arguments made by
Dr. L.P. Misra, Advocate, regarding Article
22 of the Constitution of India and that it
would be a violation of Article 22 of the
Constitution if this Court does not permit a
litigant to engage a counsel of his choice; it
would be suffice to say that the language of
Article 22(1) of the Constitution of India is
very clear, which is quoted hereinbelow:-

"22. Protection against arrest
and detention in certain cases.- (1) No
person who is arrested shall be detained in
custody without being informed, as soon as
may be, of the grounds for such arrest nor
shall he be denied the right to consult, and
to be defended by, a legal practitioner of
his choice."

20. Dr. L.P. Misra, Advocate, wants
this Court to ignore the first half of clause1 of Article 22 only to consider the second
half of clause-1 of Article 22, which says
that a person may not be denied " the right
to consult, and to be defended by, a legal
practitioner of his choice."

21. This Court cannot ignore the
context in which such an observation has
been made by the framers of the
Constitution. It relates to life and liberty,
arrest and detention being carried out
without the grounds of such arrest being
communicated to the detenue and it has no
concern at all with the right of a fresh
counsel to be engaged and to argue a
review petition relating to certain property
dispute between the parties.

22. Sri Devendra Mohan Shukla,
Advocate, at this stage has submitted that
he may be permitted to approach Sri Dhruv
Mathur, Advocate, for arguing this review
petition and in case of his inability to argue,
Sri Devendra Mohan Shukla, Advocate,
may be permitted to argue the review
petition.

23. The permission as prayed for is
granted.

24. List this case in the first week of
December, 2020.
----------
(2020)11ILR A5
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.11.2020

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Misc. Single No. 12536 of 2020
with
Misc. Single No. 12498 of 2020
and other cases

Zee College of Pharmacy, Unnao
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Utsav Mishra

Counsel for the Respondents:
C.S.C., Atul

Civil law - Pharmacy Act, 1948 - Pharmacy
Council of India (PCI) - Power of State
Govt. viz-a-viz PCI- PCI is the apex
statutory body & final authority for
6 INDIAN LAW REPORTS ALLAHABAD SERIES
Pharmacy education - State Government
and all concerned are bound to follow the
policy of PCI - Once PCI had taken a policy
decision with regard to norms for opening
new pharmacy institutions or permission
for new pharmacy courses in the existing
approved pharmacy institutions, it was
beyond
the
ambit
of
the
State
Government or any of its committees to
take a stand at variance with that of PCI.
(Para 9)

PCI policy decision dated 09.09.2019 allowing
existing approved pharmacy institutions to start
additional pharmacy courses - Petitioners were
already running Diploma courses under approval
of PCI, applied for approval of Bachelor of
Pharmacy course - State Review Committee
rejected the proposals of the petitioners by the
impugned decision - Held - it was beyond the
ambit of the State Government or any of its
committees to take a stand at variance with that
of PCI (Para 9)

Allowed (E-5)

List of Cases cited:-

1.

Jaya
Gokul
Educational
Trust
Vs
Commissioner & Secretary to Government
Higher
Education
Department,
Thiruvananthapuram, Kerala State & anr. (2000)
5 SCC 231

2. State of Maha Vs Sant Dnyaneshwar Shikshan
Shastra Mahavidyalaya & ors. (2006) 9 SCC 1

3. The Pharmacy Council of India Vs Dr. S.K.
Toshiwal Educational Trusts Vidarbha Institute
of Pharmacy & ors. Etc (2020) SCC 296

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. As counselling was due Supreme
Court required this court to decide the
matter on the date it is listed. Therefore, on
21.10.2020 the present bunch of petitions
was heard and operative portion was
pronounced in court providing that reasons
shall
follow,
hence
present
detailed
judgment.

2. I have heard Dr. L.P. Mishra,
learned Advocate assisted by Sri Utsav
Mishra, learned counsel for petitioners in
leading case, Sri Rajat Rajan Singh, Sri
Dharm Raj Mishra, Sri Piyush Kumar
Agarwal, Sri Paavan Awasthi, learned
counsels for petitioners in connected cases,
learned standing counsel for State of UP,
Sri Atul Kumar Dwivedi, learned counsel
for respondent No.3-Dr. APJ Abdul Kalam
Technical University and Sri Ravi Singh,
learned counsel for Pharmacy Council of
India (PCI).

3. Petitioner pharmacy colleges have
approached
this
Court
against
the
recommendation/decision dated 15.05.2020
of the Review Affiliation Committee of the
State of UP refusing No Objection
Certificate
(NOC)
to
the
petitioner
institutions for recognition of additional
course of Bachelor in Pharmacy. The
review
committee
consists
of
senior
officers of State of UP and of the affiliating
university. The said decision of the Review
Affiliation Committee is later approved by
the State Government. Petitioners are
pharmacy colleges who were granted
approval for running diploma courses in
Pharmacy for academic year 2019-20 by
the PCI. In its 106th Central Council
meeting held on 9th and 10th April, 2019,
PCI resolved to put a moratorium on the
opening of a new pharmacy colleges for
running diploma as well as degree course in
pharmacy for a period of five years,
beginning from the academic year 2020-21.
The said decision was duly circulated to all
the concerned by a communication dated
17.07.2019. In its 107th Central Council
meeting held on 5th and 6th August, 2019,
PCI carved out certain exceptions to the
said policy. The same were also circulated
by PCI through its communication dated
09.09.2019. Relevant exception for our
11 All. Zee College of Pharmacy, Unnao Vs. State of U.P. & Ors.
7
purposes
is
"(e)
Existing
approved
pharmacy institutions will be allowed to
apply for increase in intake capacity as per
P.C.I. norms and/or to start additional
pharmacy courses." Petitioners, who were
already running Diploma courses under
approval of PCI, applied for approval of
Bachelor of Pharmacy course from the
academic year 2020-21, which was also
granted by PCI, it being subject to consent
of Affiliation of Examining Authority and
No Objection Certificate and approval of
the State Government. The State Review
Committee rejected the proposals of the
petitioners by the impugned decision dated
15.05.2020 on the ground that colleges in
surplus of present requirement are being
run in the State and new colleges should be
permitted only in districts which do not
have such Colleges or where admission of
students is in excess of 80% of the capacity.

4. The submission on behalf of
petitioners is that once PCI has taken a
policy decision, taking into consideration
the difficulties being faced by Pharmacy
colleges due to excess number of colleges
coming into place and has prescribed the
norms on the said issue for the entire
country, it is beyond the purview of the
State Government or its Committee to
prescribed different norms. Any policy
decision which stands pronounced for the
entire country by the PCI, apex statutory
body, has to be complied by the State
Government in letter and spirit. Counsel for
PCI supports the contention of the
petitioners.

5. Learned Standing Counsel and
learned counsel for University strongly
dispute the same and place reliance upon
the approval letter of PCI which provides
that the same is subject to consent of
Affiliation of Examining Authority and No
Objection Certificate/ approval of the State
Government. Respondents argue that thus
State Government has sufficient power to
place any conditions, including those
divergent to the policy of the PCI, while
granting approval for new courses in the
existing colleges also.

6. The dispute with regard to power of
the State Government to take policy
decisions viz-a-viz the apex statutory body,
All
India
Council
for
Technical
Education(AICTE) in the given case, with
regard to technical education came up for
consideration before the Supreme Court in
the Case of Jaya Gokul Educational Trust
Vs.
Commissioner
&
Secretary
to
Government
Higher
Education
Department,
Thiruvananthapuram,
Kerala State and another1. In the said
case, the State of Kerala had taken a policy
decision,
not
to
grant
approval
for
establishment of further more engineering
colleges in the State, which was at variance
with the decision of AICTE. The relevant
paragraph 27 of the judgment, settling the
issue, reads:

"27. The so-called "policy" of the
State as mentioned in the counter affidavit
filed in the High Court was not a ground
for refusing approval. In Thirumuruga
Kirupananda
&
Variyar
Thavathiru
Sundara Swamigal Medical Educational &
Charitable Trust V. State of T.N. [1996] 3
SCC 15, which was a case relating to
medical education and which also related
to the effect of a Central law upon a law
made by the State under Entry 25 List III, it
was held (at SCC p. 35, para 34) that the

"essentiality certificate cannot be
withheld by the State Government on any
policy consideration because the policy in
the matter of establishment of a new
8 INDIAN LAW REPORTS ALLAHABAD SERIES
medical college now vests with the Central
Government alone".

Therefore, the State could not
have any "policy" outside the AICTE Act
and indeed if it had a policy, it should have
placed the same before the AICTE and that
too before the latter granted permission.
Once that procedure laid down in the
AICTE Act and regulations had been
followed under Regulation 8(4), and the
Central Task Force had also given its
favourable recommendations, there was no
scope for any further objection or approval
by the State. We may however add that if
thereafter, any fresh facts came to light
after an approval was granted by the
AICTE or if the State felt that some
conditions attached to the permission and
required by the AICTE to be complied with,
were not complied with, then the State
government could always write to the
AICTE, to enable the latter to take
appropriate action.

Decision of University in not
granting further or final affiliation wrong
on merits. "

7. The aforesaid judgment of Jaya Gokul
Educational Trust (supra) was again followed
by the Supreme Court in the case of State of
Maharashtra
Vs.
Sant
Dnyaneshwar
Shikshan
Shastra
Mahavidyalaya
and
others2. In paragraphs 63, 64, and 68 of the
said judgment, the Supreme Court again
retreating its earlier view that final authority lies
with the apex technical body (NCTE) only.

The said paragraphs read:

"63. In the instant case, admittedly,
Parliament has enacted the 1993 Act, which is
in force. The Preamble of the Act provides for
establishment of National Council for Teacher
Education (NCTE) with a view to achieving
planned and coordinated development of the
teacher-education
system
throughout
the
country, the regulation and proper maintenance
of norms and standards in the teacher-
education system and for matters connected
therewith. With a view to achieving that object,
National Council for Teacher Education has
been established at four places by the Central
Government. It is thus clear that the field is fully
and completely occupied by an Act of
Parliament and covered by Entry 66 of List I of
Schedule VII. It is, therefore, not open to the
State Legislature to encroach upon the said
field. Parliament alone could have exercised the
power by making appropriate law. In the
circumstances, it is not open to the State
Government to refuse permission relying on a
State Act or on "policy consideration".

64. Even otherwise, in our
opinion, the High Court was fully justified
in negativing the argument of the State
Government that permission could be
refused by the State Government on "policy
consideration".
As
already
observed
earlier, policy consideration was negatived
by this Court in Thirumuruga Kirupananda
Trust, as also in Jaya Gokul Educational
Trust.

68. In view of the fact, however,
that according to us, the final authority lies
with NCTE and we are supported in taking
that view by various decisions of this
Court, NCTE cannot be deprived of its
authority or power in taking an appropriate
decision under the Act irrespective of
absence of No Objection Certificate by the
State Government/Union Territory. Absence
or
non-production
of
NOC
by
the
institution, therefore, was immaterial and
irrelevant so far as the power of NCTE is
concerned. "

8. So far as the status of PCI is
concerned, in the case of The Pharmacy
Council of India Vs. Dr. S.K. Toshiwal
Educational Trusts Vidarbha Institute of
Pharmacy and Ors. Etc.3, the issue,
11 All. Narendra Kumar Yadav Vs. State of U.P. & Ors.
9
whether PCI or AICTE shall be the apex
body in the field of pharmacy education,
came up before supreme court. Supreme
Court after detailed consideration both the
Acts
concerned,
in
paragraph
87
concluded:

"87. In view of the above and for
the reasons stated above, it is held that in
the field of Pharmacy Education and more
particularly so far as the recognition of
degrees
and
diplomas
of
Pharmacy
Education is concerned, the Pharmacy Act,
1948 shall prevail. The norms and
regulations set by the PCI and other
specified authorities under the Pharmacy
Act would have to be followed by the
concerned institutions imparting education
for degrees and diplomas in Pharmacy,
including the norms and regulations with
respect to increase and/or decrease in
intake capacity of the students and the
decisions of the PCI shall only be followed
by the institutions imparting degrees and
diplomas in Pharmacy. The questions are
answered accordingly. "

9. Nothing displacing the aforesaid
judgments has been placed by the
respondents before this court. In view of
the aforesaid settled legal position, there
is no dispute that PCI is the final
authority for Pharmacy education whose
decisions are to be followed by all
concerned. Once PCI had taken a policy
decision with regard to norms for opening
new pharmacy institutions or permission
for new pharmacy courses in the existing
approved pharmacy institutions, it was
beyond
the
ambit
of
the
State
Government or any of its committees to
take a stand at variance with that of PCI.
The State Government and all other
concerned are bound to follow the policy
of PCI.

10. In view of above, all the writ
petitions are allowed.

11. The impugned decision dated
15.05.2020 is set aside to the extent the
same relates to the petitioner institutions
only. The petitioner institutions are
permitted to participate in the counselling
being
conducted
for
admission
to
Bachelors of Pharmacy course for the
academic year 2020-21. The respondents
are directed to immediately take required
steps for the same.
----------
(2020)11ILR A9
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.11.2020

BEFORE

THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE SAURABH LAVANIA, J.

P.I.L. CIVIL No. 19497 of 2020

Narendra Kumar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shobhit Kant

Counsel for the Respondents:
C.S.C., Rishabh Kapoor

Constitution of India, Art.226 - Allahabad
High Court Rules - Chapter XXII Rule 1
Sub-Rule (3-A) - Public Interest Litigation
(P.I.L.) - Essential facts to be stated in
petition
-
petitioner
must
give
his
credentials, state public cause he is
seeking to espouse - state, with proof,
what he has done & what expertise he has
on the subject matter of PIL - what
sufficient exercise has been carried out
by him before the administration prior to
knocking the door of Court - what injury
would be caused to the downtrodden of