ANJALI COLLEGE OF PHARMACY AND SCIENCE Vs PHARMACY COUNCIL OF INDIA & ANR. -Judgment by Delhi High Court
$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 21.12.2022
Pronounced on: 20.01.2023
+ W.P.(C) 16199/2022
ANJALI COLLEGE OF PHARMACY
AND SCIENCE ….. Petitioner
Through: Mr Aseem Mehrotra and Ms Deeksha, Advocates.
versus
PHARMACY COUNCIL OF INDIA ….. Respondent
Through: Mr Abhishek Singh, Mr Shreshth Arya, Mr Prasant Rana, Ms Vijjaya Singh, Mr Amit Bhalla, Mr Amit Sharma, Mr Madhav Bhatia, Mr Aditya Pandey, Mr Akshat Choudhary and Ms Manisha Agrawal Narain, Advocates.
CORAM:
HON’BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
VIKAS MAHAJAN, J.
REVIEW PET. 344/2022 & CM APPL. 55202/2022 & CM APPL. 55203/2022
1. The present review petition has been filed by the petitioner seeking review of the judgment dated 13.12.2022 passed in W.P.(C) 16199/2022.
2. The writ petition had been filed by the petitioner essentially challenging the decision dated 31.10.2022 of the respondent-PCI, whereby the approval for the academic session 2022-2023 has been declined to the petitioner for its D.Pharm, B.Pharm and M.Pharm courses.
3. Vide order dated 13.12.2022, this Court had partly allowed the writ petition of the petitioner directing as follows:-
�36. All the objections raised by the Personal Hearing Committee (PHC) are untenable except that the Principal, Dr. Mihir Y. Parmar does not have the eligibility to be appointed as Principal for the B.Pharm and M.Pharm courses. The inspectors� report does not point out any discrepancy with regard to faculty or infrastructure. The inspectors� report could not have been discarded by the respondent without any justified reasons. There is also a doubt as regard the correctness of the procedure adopted by the EC in directing the Principal and the entire faculty to appear in person before the PHC when the inspectors� report was already available. To a query put by the court to the learned counsel for the respondent as to whether there is any regulation providing for such procedure, the answer was in the negative.
37. Since the Principal of the petitioner institute lacks the eligibility to be appointed as such for B.Pharm and M. Pharm courses, no direction could be given to the respondent to grant approval to petitioner for the said courses as it would in essence be directing the respondent to violate its own regulations. It is trite that the High Court while exercising jurisdiction under Article 226 of the 2022/DHC/005582 W.P.(C) 16199/2022 Page 27 of 28 Constitution of India cannot direct statutory bodies to violate their own rules and regulations. I am also supported in my view by the judgment of the Supreme Court in Maharishi Dayanand University vs. Surjeet Kaur, (2010) 11 SCC 159, the relevant paragraphs of which read as under:
�11. It is settled legal proposition that neither the court nor any tribunal has the competence to issue a direction contrary to law and to act in contravention of a statutory provision. The Court has no competence to issue a direction contrary to law nor the court can direct an authority to act in contravention of the statutory provisions.
12. In State of Punjab v. Renuka Singla [(1994) 1 SCC 175], dealing with a similar situation, this Court observed as under : (SCC p. 178, para 8)
�8. � We fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations�.�
13. Similarly, in Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SCC 560 : AIR 2002 SC 629] , this Court held as under : (SCC pp. 572-73, para 27)
�27. � The High Court under Article 226 of the Constitution is required to enforce rule of law and not pass order or direction which is contrary to what has been injuncted by law.�
Similar view has been reiterated by this Court in Manish Goel v. Rohini Goel [(2010) 4 SCC 393 : (2010) 2 SCC (Civ) 162 : AIR 2010 SC 1099]�
38. Undisputedly, the petitioner has the requisite faculty and an eligible Principal for grant of approval for D.Pharm course. This being the position, the impugned order to the extent that it instructs the petitioner’s institute not to make admissions for the Academic Session 2022-23 for its D.Pharm course is illegal and is accordingly set aside.
39. Keeping in view the fact that petitioner is entitled for grant of approval and already there has been delay on part of the respondent in taking timely decision on the application and appeal of the petitioner, this court, instead of remanding the matter back to the respondent for issuance of fresh order, is inclined to direct the respondent to forthwith grant approval to the petitioner for its D.Pharm course.
40. The court is informed by the learned counsel for the parties that the counselling for D.Pharma course in the state of U.P. is still going on, therefore the respondent is directed to allow the petitioner’s college to take admission of 60 students in the ongoing counseling of D.Pharm course for the Academic Session 2022-23.
41 . The writ petition is partly allowed in the above terms.�
4. Insofar as Dr. Mihir Y. Parmar�s eligibility to be appointed as Principal in petitioner�s institute for its B.Pharm & M.Pharm course, is concerned, it was observed in the order under review that Dr. Parmar did not have the requisite 15 years of experience at the relevant time.
5. The review has now been premised on the following grounds:-
(i) Dr. Mihir Y. Parmar was already working as the Principal in Sanjay College of Pharmacy, Mathura from 21.08.2019 till 30.09.2022. The said college was given an extension of approval by the respondent for the academic session 2021-2022 for its B. Pharm course with an intake capacity of 60 students. Similar extension of approval was given for academic session 2022-23 for D. Pharm and B. Pharm with 60 seats by the respondent vide EC decision taken in 381st meeting held on 11.11.2022. The submission is that once Dr. Mihir Y. Parmar has been accepted as the Principal in Sanjay College of Pharmacy for its B.Pharm course, by the respondent, then there was no impediment in accepting him as the Principal in the petitioner college for its B.Pharm and M.Pharm courses.
(ii) Dr. Mihir Y. Parmar acquired the Degree of Master of Pharmacy (Pharmacology) on 17.10.2006 from Maharaja Sayajirao University of Baroda and, thereafter, he obtained Doctorate of Philosophy (Pharmaceutical Sciences) on 29.03.2022 from the same University. Placing reliance on the UGC�s letter dated 01.03.2016, the petitioner contends that the period of active service spent on pursuing Research Degree (Ph.D. Degree) simultaneously without taking any kind of leave has to be counted as teaching experience for the purpose of direct recruitment/promotion to the post of Associate Professor. It is thus, urged that the time spent by Dr. Mihir Y. Parmar in acquiring the Ph.D. Degree has to be counted towards his experience and eligibility for his appointment as the Principal of the petitioner college and if it so counted then there is no shortfall in the requisite experience of 15 years.
6. The fact that Dr. Mihir Y. Parmar was working as the Principal in Sanjay College of Pharmacy, Mathura was though mentioned in the additional affidavit filed by the petitioner on 03.12.2022 but the fact that Sanjay College of Pharmacy, Mathura was given an extension of approval by the respondent for the academic session 2021-22 for B. Pharm course with an intake capacity of 60 students and further given extension of approval for the academic session 2022-23 for D. Pharm and B. Pharm with 60 seats each, by the respondent, was not a part of the pleadings in the writ petition. The petitioner has pleaded these facts for the first time only in the review petition and is trying to substantiate them by seeking to place on record copies of the approval for the academic year 2021-22, as well as the decision of the 381st EC meeting held on 11.11.2022, as additional documents with an application [CM No.55203/2022] filed along with the Review Petition.
7. Similarly, the ground premised on UGC letter dated 01.03.2016 has also been pleaded for the first time in the Review Petition and the said UGC letter is thus, sought to be placed on record as an additional document.
8. It has also been fairly conceded by the petitioner in the review petition that the facts alleged in the review petition could not be brought to the notice of the court earlier. In this regard, it is apt to reproduce paragraph 13 of the Review Petition, which reads as under:-
�13. The Petitioner states that the above facts could not be brought to the notice of this Hon�ble Court, hence, the present application for review is being filed.�
9. It is settled law that the power of review cannot be confused with the appellate power which enables the Superior Court to correct errors committed by a subordinate court. It is not a rehearing of the original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review has to be exercised with extreme care, caution and circumspection and only in exceptional cases.1
10. As regards the additional facts and the documents which are sought to be placed on record for the first time with the review petition, suffice it to say that it is not the case of the petitioner that the said facts and documents were not within its knowledge or could not be produced by it after exercise of due diligence at the time of the hearing of the writ petition, which is a pre-requisite for maintaining a review petition on the ground of discovery of new or important matter or evidence.
11. In State of West Bengal and Others v. Kamal Sengupta and Another: (2008) 8 SCC 612, the Supreme Court while dealing with the question of scope of review on the ground of discovery of a new matter or evidence, observed as under:-
�21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier.�
(emphasis supplied)
12. Similar view was also taken by the Supreme Court in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma: (1979) 4 SCC 389. Para 3 of the said judgment reads as under:-
�3��It is true as observed by this Court in�Shivdeo Singh�v.�State of Punjab�[AIR 1963 SC 1909] there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.
(emphasis supplied)�
13. No other ground has been taken in Review Petition to make out a case of error apparent on the face of the record to justify interference.
14. This being the position, no ground for review of the judgment dated 13.12.2022 is made out. Accordingly, the review petition along with pending application is dismissed.
VIKAS MAHAJAN, J.
JANUARY 20, 2023
MK
1 Jain Studios Ltd. V. Shin Satellite Public Co. Ltd.; (2006) 5 SCC 501, para 11
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N.C. No. 2023/DHC/000457
W.P.(C) 16199/2022 Page 8 of 8