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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)

O R D E R  

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

(“PCI” hereafter), Director of Technical Education, Govt of Maharashtra, and

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

12 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.