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Himachal Pradesh High Court · body

2015 DIGILAW 924 (HP)

Shanti Niketan College of Pharmacy v. State of H. P.

2015-07-22

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

body2015
Judgment Tarlok Singh Chauhan, J. This writ petition has been filed with the following reliefs: (i) Issue a writ of certiorari to quash Annexure P-17 i.e. order dated 10.03.2014 and withdrawal of approval for the session 2013-14 dated 29.04.2013. (ii) Issue a writ of mandamus directing the respondent authorities not to give effect to Annexure P-17 i.e. order 10.03.2014 and withdrawal of approval for the session 2013-14 dated 29.04.2013. (iii) Issue a writ of mandamus directing the respondent authorities to place on record withdrawal of approval for the session 2013-14 dated 29.04.2013. 2. It is not in dispute that the relief’s as sought for have in fact with the passage of time been rendered academic, however, there are certain lis-pendence issues which still require our consideration. The brief facts as are necessary for the adjudication of this case may be noticed. 3. In the year 2005, the AICTE (respondent No.4) approved the institute of the petitioner for running two years Pharmacy course with an annual intake capacity of 40 students. 4. The petitioner vide notification dated 26.4.2007 was granted affiliation with the Himachal Pradesh Takniki Shiksha Board with the condition that the examination would be conducted by the Board if the course sought to be taught is approved by the Pharmacy Council of India. 5. It is not in dispute that ever-since from the year 2005 the petitioner-institute was, from time to time, granted extension of approvals to run the courses on the basis of which the petitioner continued to run the courses. However, a fact finding report dated 4.3.2013 was prepared by the Director (Technical Education), Government of Himachal Pradesh and based on that the approval for the session 2013-14 was withdrawn vide letter dated 29.4.2013. 6. Pursuant to the aforesaid report, an expert visit committee was constituted to verify the facts, which conducted its inspection on 19.11.2013, on the basis of which the respondent No.4 issued a show cause notice dated 13.12.2013 to the petitioner. It is after receipt of this show cause notice that the petitioner alleged that it came to know for the first time that the affiliation has been withdrawn by the respondent No.4 vide letter dated 29.4.2013. 7. It is after receipt of this show cause notice that the petitioner alleged that it came to know for the first time that the affiliation has been withdrawn by the respondent No.4 vide letter dated 29.4.2013. 7. Based upon the withdrawal of approval dated 29.4.2013 and the show cause notice dated 13.12.2013, the respondent No.4 vide its order dated 10.3.2014 directed the maintenance of status quo, which constrained the petitioner to file the instant writ petition. 8. For completion of facts, it may be mentioned that the order dated 10.3.2014 (Annexure P-17) was kept under eclipse by this Court vide its order dated 3.4.2014. 9. The only defence taken by respondents No. 1 and 2 in their reply to the petition is that the matter with regard to AICTE/PCI approvals in respect of the petitioner College is already subjudice before this Court in CWP No. 5600 of 2011 and CWP No. 2042 of 2014 and, therefore, the admission to Diploma Pharmacy course for the year 2014-15 shall be subject to the approval/affiliation of AICTE/PCI/Board and orders of this Court. 10. The respondent No.3 in its reply has highlighted certain acts of omissions on behalf of Shakti Chand (Ex-Chairman of the petitioner-Society) and has averred that there is a family dispute regarding the petitioner No.1 which is subjudice in the Court of Civil Judge, Senior Division, Court No.2, Mandi. 11. The respondent No.4 in its reply has raised certain preliminary objections. However, the main thrust of this respondent is that it is a statutory body and has passed the orders regarding the withdrawal of approval on the basis of the report submitted by the Himachal Pradesh State Board of Technical Education (respondent No.3) wherein it had recommended the cancellation of the approval of the petitioner society vide letter dated 4.3.2013 informing that a litigation regarding the management of the society was subjudice and there is membership and land related disputes and financial irregularities committed in the society. 12. The respondent No.5 which is the H.P. Technical University has filed its reply wherein it has been stated that since no action of this respondent was under challenge, therefore, the writ petition was not maintainable. 13. During the pendency of the petition, one Jitender Kumar moved an application for impleadment and vide order dated 16.12.2014 he was ordered to be impleaded as party respondent No.6 subject to all just exceptions. 14. 13. During the pendency of the petition, one Jitender Kumar moved an application for impleadment and vide order dated 16.12.2014 he was ordered to be impleaded as party respondent No.6 subject to all just exceptions. 14. The respondent No.6 has filed reply to the writ petition and it appears that this respondent has his own axe to grind as he is claiming interest in the administration of the society rather then having anything to do with the present lis. He has in fact questioned the locus of the administrator to represent the society and would claim that it was high time that the administrator is removed as his appointment was only for a period of six months. We have heard learned counsel for the parties and have gone through the records of the case carefully. 15. The relevant portion of the order dated 10.3.2014 whereby status quo was ordered to be maintained by respondent No.3 reads thus: “7. The institute was issued Show Cause Notice vide letter dated 13/12/2013 and the institute submitted its reply vide letter dated 23.12.2013. The matter was placed before the Standing Committee for decision and 25.2.2014. 8. The Committee recommended as “Present Status quo to be maintained “Withdrawn” and set to “0” zero intake” for Shanti Niketan College of Pharmacy, Malther, P.O. Ratti, Distt. Mandi (H.P.) 9. In view of the report of the HP State Board of Technical Education and in view of the observation/recommendation of SCC dated 25.2.2014, the entire matter in the facts and circumstances mentioned hereinabove has been considered and it has been decided to maintain status quo of NO EOA 2013-14 to Shanti Niketan College of Pharmacy, Malther, P.O. Ratti, Distt. Mandi (H.P.).” 16. It is evident from a bare perusal of the impugned order aforesaid that it is devoid of any reason and yet the respondent No.4 based on the report of respondent No.3 has directed the maintenance of status quo. At this stage, we may now take note of the reply of respondent No.3, who in the preliminary submissions has categorically stated as follows: “5. At this stage, we may now take note of the reply of respondent No.3, who in the preliminary submissions has categorically stated as follows: “5. That the Pharmacy Council of India vide letter dated 12.02.2014 (Annexed at Annexure R-3/D) had informed that the inspection of the institution of the petitioner was carried out by the Council and as per the inspection report dated 13th and 14th December, 2013 the academic and infrastructural facilities, available in the institution are adequate for extension of approval and had decided to recommend to the council to extend the approval for D. Pharm course and examination upto the academic session 2014-15 for 60 admissions subject to the outcome of CWP No. 5600/2011, which is pending in this Hon’ble Court.” From the above, it is apparent that the stand of the respondent No.4 is irreconcilable with that of respondent No.3. Therefore, in such circumstances, it is difficult to appreciate as to on what basis the respondent No.4 directed to maintain the status quo and further on what basis the affiliation was withdrawn. 17. As observed earlier, the impugned order dated 10.3.2014 was already kept under eclipse, but then the difficulty arose when the respondent No.4 vide letter dated 30.4.2015 again rejected the request of the petitioner for extension of approval for the session 2014-15. Even here the only apparent reason for rejecting the extension of approval was the earlier order passed by it on 10.3.2014. This Court, therefore, vide its order dated 27.5.2015 stayed the operation of the order passed by respondent No.4 dated 30.4.2015 (Annexure P-22). 18. The petitioner thereafter moved another application being CMP No. 6807 of 2015 seeking directions to respondent No.3 to grant provisional affiliation for the academic session 2015-16. Though, this application has not been contested by respondent No.3, however, respondent No.4 has filed its reply wherein it is alleged that an Expert Visiting Committee (for short ‘EVC’) visited the petitioner institute on 23.4.2015 and pointed out several deficiencies and some of which are of mandatory and essential requirements. A copy of the report has also been appended with the reply as Annexure R-3. A copy of the report has also been appended with the reply as Annexure R-3. It is alleged that the matter was placed before the Standing Appellate Committee on 30.4.2015 which was attended by the representatives i.e. Director and Principal of the petitioner-college and after considering all the facts and deficiencies pointed out by the restoration EVC, the Standing Appellate Committee had decided not to issue letter of approval to the petitioner college and recommended the issuance of letter of rejection for the year 2015. 19. Indisputably, the College has been running two years Pharmacy course for the last one decade from the year 2005. It is also not in dispute that ever since the year 2005 the respondent No.4 had of its own and after taking into consideration the infrastructure available with the petitioner granted extension after extension of approval to run the courses for nearly a decade. Even at the time when it directed maintenance of status quo of withdrawal of affiliation, it had not acted of its own but had acted on the so called recommendations of the inquiry reports submitted by the Himachal Pradesh Takniki Shiksha Board. The comments of EVC even at that stage on the points reported by the Director Himachal Pradesh State Board of Technical Education Department were as follows: “A. Land related documents: All land related documents are seen and verified w.r.t. that mentioned in EVC report. The land dispute is under legal process. B. Actual location of the Institute: The Institute is located as mentioned in EVC report. C. Admission during last three years: The students admitted are 58, 61 and 59 during 2011-12, 12-13 and 13-14, respectively. D. Existence of Society: The Society has been established and registered (document attached). However, Governing body is not in existence. It is run by the administrator appointed by Government.” 20. Notably, the respondent No.4 while filing its reply to the writ petition had also enclosed a copy of EVC report dated 19.11.2013 as Annexure R-1 on the basis of which it issued show cause notice dated 13.12.2013 and the only deficiencies noted at the relevant time were as follows: “S.No. Deficiency reported by EVC dated 19/11/2013. 1 Availability of Language Laboratory (Mandatory as per AICTE Norms) Not presented – Required Software Not procured. 2 Provision of backup power supply Not presented – Not backup available. 1 Availability of Language Laboratory (Mandatory as per AICTE Norms) Not presented – Required Software Not procured. 2 Provision of backup power supply Not presented – Not backup available. 3 Barrier free environment and toilets created for physically challenged. (Ramp or Working Lift etc.) Not available. 4 Legal Application S/W – Not ready/Not accepted – Not available. 5 Legal System S/W – Not ready/Not accepted – Not available. 6 Language Laboratory – Not ready/Not accepted – Not available. 7 Library Management Software – Not ready/Not accepted. 8 Office All Inclusive – Not ready/Not accepted – Area inadequate. 9 Cafeteria – Not ready/Not accepted – Not available. 10 Laboratory total Area required Sqm 675 Not ready/Not accepted – Less number than required. 11 Animal House – Not ready/Not accepted – Not available. 12 Seminar Hall – Not ready/Not accepted – Not available.” 21. Here it may be noted that it was not on account of any serious deficiency in infrastructure that the show cause notice had been issued, but the reasons for issuance of the show cause notice were as follows: “10. In view of the facts and circumstances mentioned above, you are hereby directed to Show Cause as to why: i. It should not be considered that the Institute has failed to disclose factual information and/or suppressed/misrepresented the information under Clause 4.28 of AICTE Regulations 2011 in the application submitted on line on AICTE Web Portal. ii. It should not be considered as violation of the terms and conditions contained in the letter of approval and relevant provisions of AICTE Regulations. iii. Appropriate action should not be initiated against the institution including withdrawal of Approval for nonobservance of the terms and conditions of approval process.” 22. In reply to the show cause notice dated 13.12.2013 the petitioner had submitted a detailed reply which reads thus: “Compliance of Deficiency Reported by EVC dated 19/11/2013. 1. Availability of Language Laboratory: Compliance:- As this was mandatory since two years and since more than two years society dispute is subjudise in High Court of H.P. Till now we were sharing the computer lab as language laboratory, but now we have given the order for set up of language laboratory with required softwares as per the AICTE Norms. (Ann.-1). 2. Provision of backup power supply: Compliance: As the case of Himachal Pradesh State, there is rare power cut. But now we have purchased a genset. (Ann.-1). 2. Provision of backup power supply: Compliance: As the case of Himachal Pradesh State, there is rare power cut. But now we have purchased a genset. Copy of purchase invoice is attached. (Ann.-2) 3. Barrier free environment and toilets created for physically challenged.(Ramp or working lift etc.) Compliance: As the matter of land is subjudised in court and court has given status quo. So we cannot do any new construction without prior permission of the Court. So in next hearing date we will put this matter before the court to seek permission for construction of ramp or working lift and toilet for physically challenged. So far the now we are not having any admission of the physically challenged. 4. Legal Application software: Compliance: We are having maintenance contract of the computer laboratory. So required softwares were provided by the concern firm. Now we have purchased legal application softwares. Purchase invoice is attached. (Ann.-3). 5. Legal System Software: Compliance: Likewise application software, system software is also provided by the concerned firm. But now we have purchased legal system software. Purchase invoice is attached.(Ann.-4). 6. Language Laboratory: Compliance: At present we are sharing computer lab with language laboratory. We have already marked space for the construction of language laboratory. But as the matter of land is subjudised in court and court given status quo on the land. So we can not do any new construction without prior permission of court. In next hearing date we will put this point before the court to seek permission for construction of language laboratory. 7. Library Management Software: Compliance: At present we are using a free software namely Library Manager v7.9.1, which was downloaded from net. But now we have given a request to purchase library Management software.(Ann.-5). 8. Office all inclusive: Compliance: At present we are having a sufficient space for extension of the existing office. Previously we had planned of construction, but as the matter of land is subjudised in the court and court have given status quo on the land, so we can not do any new construction without prior permission of court. In next court hearing we will put this matter also to seek permission for the construction of office all inclusive as per the AICTE Norms. 9. Cafeteria: Compliance: At present we are having a small canteen but the area is not as per AICTE Norms. In next court hearing we will put this matter also to seek permission for the construction of office all inclusive as per the AICTE Norms. 9. Cafeteria: Compliance: At present we are having a small canteen but the area is not as per AICTE Norms. Likewise status quo order of the court, we will put this matter also to seek the permission for the construction of the cafeteria as per the AICTE Norms. 10. Laboratory total area: Compliance: As the college is running since 2006 and the construction of building was done as per the Pharmacy Council India Norms. As per the PCI norms we are having the sufficient number of laboratory with adequate area. In future, we can expand the number of laboratory after permission of court. (Ann.-6). 11. Animal House: Compliance: As per the Pharmacy Council of India animal study is banned in the D-Pharmacy course and the practicals are done with the help of software. 12. Seminar Hall: Compliance: At present we use classrooms as seminar hall whenever required. Previously, provision was made for construction of seminar hall but due to status quo order of the court, construction could not be done. Now we will put this matter also before the court to seek permission for construction of Seminar Hall. (Ann.-7).” 23. The deficiencies as are now sought to be pointed out are the same which had earlier been pointed out in the EVC report dated 19.11.2013 and prior to that a detailed reply to the deficiencies pointed out had already been submitted by the petitioner on 4.3.2013, which reply till date does not appear to have been taken into consideration or else the approval would not have been withdrawn. 24. Though, as observed earlier, the original cause of action whereby the petitioner had challenged the orders dated 10.3.2014 and 29.4.2013 has with afflux of time rendered been academic but then the respondent No.4 during the pendency of the petition has again withdrawn the affiliation. The action of respondent No.4 is hit by the doctrine of lis-pendence and cannot be sustained for the reasons already set out hereinabove. 25. Before parting, it may be observed that the so called deficiencies as pointed out by the respondents are not such in whose absence the institute cannot run. The action of respondent No.4 is hit by the doctrine of lis-pendence and cannot be sustained for the reasons already set out hereinabove. 25. Before parting, it may be observed that the so called deficiencies as pointed out by the respondents are not such in whose absence the institute cannot run. After all, the same is successfully being run for the last more than one decade and, therefore, in such circumstances, the refusal on the part of respondent No.4 to extend the approval cannot be countenanced. 26. But at the same time even the petitioner cannot be permitted to run the institute without satisfying atleast those conditions as are absolutely necessary for running the institute. Therefore, in the given facts and circumstances, we grant the petitioner six months’ time to remove the deficiencies as are absolutely necessary for establishing and running the institution, failing which, the respondents shall be at liberty to withdraw the approval. However, till such time the petitioner shall be permitted to run the course. 27. We may, however, hasten to clarify that before any adverse action like withdrawal of the approval is taken, the respondents shall take into consideration the explanation already offered by the petitioner to the show cause notice dated 13.12.2013 and any other explanation which it may offer, in a logical and rational manner. The respondents would further take into consideration the constraints of the petitioner which have arisen due to pendency of various litigations and would therefore not expect the petitioner to perform what is reasonably not possible. 28. As a sequel to the aforesaid discussion, the present petition is partly allowed in the aforesaid terms and the orders passed by the respondents on 29.4.2013, 10.3.2014 and 30.4.2015 are quashed and set-aside, leaving the parties to bear their own costs. Pending applications, if any, stand disposed of.