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2002 DIGILAW 553 (ORI)

NIRMAL KISHORE SAHOO v. STATE OF ORISSA

2002-08-28

A.K.PATNAIK, M.PAPANNA

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JUDGMENT : A.K. Patnaik, J. - The State of Orissa in the Department of Health and Family Welfare issued a prospectus for admission to D. Pharm. Course in Pharmacy Colleges of Orissa, 1999-2000. In the said prospectus it was stated that selection for admission into first year of two year Diploma in Pharmacy course in the colleges of pharmacy course in the colleges of pharmacy of the State of Orissa would be conducted by the D. Pharm Selection Committee with the Director of Medical Education and Training, Orissa as its Chairman, In Table No. 1 of the said prospectus the colleges of pharmacy in the State of Orissa in which admission was to be given the number of free seats and payment seats were indicated. Serial No. 11 of the said Table No. 1 which gives the number of seats in the Indira Gandhi Institute of Pharmaceutical Science. Bhubaneswar and the particulars against the said serial No. 11 are extracted herein below: TABLE No. 1 Name of the Institution Number of Seats Total Free Payment 1 2 3 4 ___________________________________________________________________ Government Colleges (1) and (2) xx xx xx Private Colleges (1) to (10) xx xx xx 11. Indira Gandhi Institute of 100 50 50 Pharmaceutical Science, R. C. Village, Nayapalli. Bhubaneswar. (12) to (17) xx xx xx In response to the said prospectus, the petitioner applied in the prescribed forms and were selected by the Selection Committee and allotted to the Indira Gandhi Institute of Pharmaceutical Science, Bhubaneswar for admission against payment seats. The thirteen petitioner were admitted in the said seats of D. Pharm course in Indira Gandhi Institute of Pharmaceutical Science, Bhubaneswar after payment of the required fees. After going through the 1st years course, they filed up their forms for appearing 1st year D. Pharm Examination to be conducted by the Orissa State Pharmacy Board and they also deposited the requisite fees for the said examination and ware issued with Admit Cards for taking the said examination to be held in July, 2001. The petitioners also took the examination held in July, 2001 as regular candidates, but their results were not published. The petitioners also took the examination held in July, 2001 as regular candidates, but their results were not published. On enquiry, they came to learn that although the Director, Medical Education and Training, Orissa and the State Government have allowed the increase of seats in the said college from 60 to 100, the pharmacy council of India had not approved such increase of seats from GO to 100 and for this reason, while the results of 60 students from the aforesaid college were published by the Orissa State Pharmacy Board the results of the candidates in excess of the said 60 seats were withheld by the Orissa State Pharmacy Board. Aggrieved, the thirteen petitioner have filed this writ petition for directing opp. parties and in particular, Orissa State Pharmacy Board to publish the results of the petitioners in respect of the 1st Year D. Pharm Course. 2. When the petitioner was moved before this Court on 18.2.2002, this Court while issuing notice passed an interim order in Misc. Case No. 2181 of 2002 directing that the petitioner will be allowed to continue their study in the 2nd year of the D. Pharm. Course in the aforesaid institution provided they were otherwise eligible and pursuant to the said interim orders, the petitioners have been allowed to continue in the 2nd year D. Pharm. Course. They are, however, yet to take the examination In the 2nd year of D. Pharm. Course. 3. Mr. Routray. learned Counsel for the petitioners submitted that the thirteen petitioners were selected by the D. Pharma Selection Committee with the Director of Medical Education and Training, Orissa as its Chairman on the basis of their merits for admission to the College of pharmacy in the Stats of Orissa and - pursuant to the said selection, the petitioners were also allotted payment seats in the Indira Gandhi Institute of Pharmaceutical Science. Bhubaneswar. He submitted that the seats of the aforesaid college were raised from 60 to 100 from the academic session 1998-1999 by the Director, Medical Education and Training, Orissa subject to the approval of the pharmacy council of India. But the Pharmacy Council of India subsequently did not approve the said increase of seats from 60 to 1000 and for this reason the results of the petitioners have not been published by the Orissa State Pharmacy Board. But the Pharmacy Council of India subsequently did not approve the said increase of seats from 60 to 1000 and for this reason the results of the petitioners have not been published by the Orissa State Pharmacy Board. He argued that if the petitioners had been selected on the basis of the their merit for admission to the D. Pharm. Course, they could have been allotted to some other colleges in which there were adequate number of seats. But it so happened, they were allotted to the Indira Gandhi Institute of Pharmaceutical Science, Bhubaneswar against the additional increase seats which are yet to be approved by the Pharmacy Council of India. Mr. Routray cited the decision of the High Court of Delhi in Krupanidhi Education Trust (Regd.) and another Vs. The Secretary, Pharmacy Council of India and others wherein the request of Krupanidhi Education Trust to increase the number of the seats from 60 to 120 was rejected by the Pharmacy Council of India on the basis of Its policy decision not to allow such increase and the Division Bench of the High Court of Delhi held, that such rejection was arbitrary and the Education Regulations, 1981 framed u/s 10 of the Pharmacy Act, 1948 did not ban altogether to increase the number of seats. 4. We have perused the counter affidavit filed on behalf of the Pharmacy Council of India in O.J.C. No. 9626 of 2001 in which the management of the Indira Gandhi Institute of Pharmaceutical Science have challenged the decision of the Pharmacy Council of India not to approve the increase of seats from 60 to 100 in the said college and we find that in paragraph-4 of the said counter affidavit various deficiencies are pointed out in the college on account of which the Pharmacy Council of India was not inclined to approve the increase of seats from 60 to 100 in the Indira Gandhi Institute of Pharmaceutical Science. We are, therefore, not in a position to hold straight away that the rejection by the Pharmacy Council of India of the request for increase of seats from 60 to 100 in the Indira Gandhi Institute of pharmaceutical Science was arbitrary. We are, therefore, not in a position to hold straight away that the rejection by the Pharmacy Council of India of the request for increase of seats from 60 to 100 in the Indira Gandhi Institute of pharmaceutical Science was arbitrary. However, the Court will have to consider the submissions on behalf of the petitioner in the said O.J.C. No. 9626 of 2001 and the Pharmacy Council of India and decide the said writ petition on its own merits. 5. But it appears that the Director, Medical Education and Training, Orissa had permitted the Indira Gandhi Institute of Pharmaceutical Science, Bhubaneswar to raise admission from 60 to 100 from the academic session 1998-99 subject to approval of the Pharmacy Council of India. It further appears that by the prospectus for admission to D. Pharm. Course in the Pharmacy Colleges of Orissa, 1999-2000 as approved by the Government of Orissa, Health and Family Welfare Department it was declared that their were 100 seats in the Indira Gandhi Institute of Pharmaceutical Science, Bhubaneswar for admission to the D. Pharm. Course. In response to the said prospectus, the petitioners had applied and were selected by the D. Pharmacy Selection Committee headed by its Chairman for admission to D.Pharm. Course and were allotted seats for admission in the Indira Gandhi Institute of Pharmaceutical Science, Bhubaneswar. Obviously, the petitioners did not of their own opt for admission into the seats for D. Pharm. Course in the Indira Gandhi Institute of Pharmaceutical Science, Bhubaneswar. The fault, if any, for permitting admission in 100 seats from 1998-99 academic session and for selecting the petitioners who were selected on the basis of their merits is that of the Director, Medical Education and Training Orissa and the Government of Orissa in the Health and Family Welfare Department. 6. In Punjab Engineering College Chandigarh through its Principal Vs. Sanjay Gulati and Others, the Supreme Court has held that those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified and the best solution under the circumstances is to ensure that the strength of seats is increased in proportion to the wrong admission made. In the present case also, since the thirteen petitioners were entitled to admission in payment seats on the basis of the their merit in the selection conducted by the D. Pharmacy Selection Committee with the Director. Medical Education and Training, Orissa as its Chairman, they were entitled to admission in the payment seats where-ever such seats were available and approved by the Pharmacy Council of India. It is only on account of the fault of the Director, Medical Education and Training, Orissa and the State Government in the Health and Family Welfare Department that the petitioners have been wrongly admitted to the additional seats over an above the 60 seats approved by the Pharmacy Council of India in the Indira Gandhi Institute of Pharmaceutical Science, Bhubaneswar. We are therefore, inclined to direct the Pharmacy Council of India to increase this strength of seats in the Indira Gandhi Institute of Pharmaceutical Science. Bhubaneswar to the extent of the said additional thirteen admissions of the petitioners. 7. Mr. Ashok Mohanty, learned Counsel appearing for the Orissa State pharmacy Board, however, cited the decision of the Supreme Court in State of Maharashtra Vs. Vikas Sahebrao Roundale and others wherein it was held that the students having had admission in an unauthorised D.Ed. Colleges have no right to seek writ of mandamus or direction from the Court to permit them to sit for the examination or to accommodate them in the recognised institutions to pursue further study. He also relied on the decision of the Supreme Court in State of Punjab and others Vs. Renuka Singla and others, wherein the Supreme Court has held that the admission in Medical Course throughout India is governed by different statutory provisions, including regulations framed under different Acts and the High Court or the Supreme Court cannot be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned, to violative their own statutory rules and regulations in respect of the Supreme Court in Mallikarjuna Mudhagal Nagappa and Ors. v. State of Karnatake and Ors. 2000 (6) Supreme 29 for the proposition that if admission was not valid and beyond permitted quota, the Court cannot help such students in the aforesaid three decisions cited by Mr. Ashok Mohanty. v. State of Karnatake and Ors. 2000 (6) Supreme 29 for the proposition that if admission was not valid and beyond permitted quota, the Court cannot help such students in the aforesaid three decisions cited by Mr. Ashok Mohanty. learned Counsel for the Orissa State Pharmacy Board, the Court had not found that the students had been admitted to some seats/course without the fault of the authorities. Obviously, the said decisions of the Supreme Court will not be applied to this case where the Court finds that the students have been admitted to seats or course not because of their fault but purely on account of the fault of the authorities. 8. The thirteen petitioners pursuant to their admission in the indira Gandhi Institute of Pharmaceutical Science. Bhubaneswar have now competed that 1st years D. Pharm. Course in taking the examination of the 1st years conducted by the Orissa State Pharmacy Board. Obviously, the Orissa State pharmacy Board is the authority u/s 12 of the Pharmacy Act. 1948 to conduct the examination for pharmacy course. The standard of the students in the examinations taken by them at the end of the 1st year course would be determined by their performance in the said examination conducted by the Orissa State Pharmacy Board. The thirteen petitioners are continuing in the second year D. Pharm. Course in the Indira Gandhi institute of Pharmaceutical Science, Bhubaneswar and will have to take the examinations at the end of the second year to be conducted by the Orissa State Pharmacy Boards and their standards will have to be determined again on the basis of their performance in the said examination conducted by the Orissa State Pharmacy Board. There is, therefore, no reason for either the Pharmacy Council of India or the Orissa State Pharmacy Board to think that by allowing the increase of strength to the extent of thirteen petitioners admitted, there would be fall of the standard of education so far as the thirteen petitioner are concerned. While therefore, we hold that students cannot be admitted to any additional seats until such additional seats are approved by the Pharmacy Council of India, in the peculiar circumstances of this case as indicated above, we are Inclined to grant relief to the thirteen petitioners, admitted against thirteen additional seats of the college which were yet to be approved by Pharmacy Council of India. 9. 9. For the aforesaid reasons, we allow this writ petition and direct the 'Orissa State Pharmacy Board-Opp. party No. 3 to publish the results of the thirteen petitioners in respect of the 1st year D. Pharm. Course within a period of one month from today. We also direct the opposite parties to allow the thirteen petitioners to continue in second year D. Pharm. Course and to take the examination at the end of the second year course and publish the results. The Pharmacy Council of India. opp. party No. 4, will increase the strength of S6ats of the Indira Gandhi Institute of Pharmaceutical Science. Bhubaneswar only by thirteen more seats to accommodate the thirteen petitioners and the said increase of thirteen seats will lapse as soon as the thirteen petitioners complete their second year D. Pharm. Course in the College. Considering the facts and circumstances of the case the parties shall bear their own costs. M. Papanna, J. 10. I agree.