1 Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2452 OF 2010 Anasari Ziyaur Rehman Naimoor Rehman ] son of Ansari Naeemur Rahman ] Through his father and natural guardian ] Ansari Naeemur Rahman ] R/o Malegaon, District Nashik ]... Petitioner versus 1 Mahatma Gandhi Vidyamandir’s ] Samajshri Prashantdada Hiray College] of Pharmacy, Loknete Vyankatrao ] Hiray Marg, Malegaon Camp, ] District Nashik ] ] 2 Directorate of Technical Education ] State of Maharashtra, 3, Mahapalika ] Marg, Mumbai-400001 ] ] 3 State of Maharashtra ] Mantralaya, Mumbai. ] ] 4 The Pharmacy Council of India ] Combined Council’s Building, ] Kotla Road, Aiwan-E-Ghalib Marg, ] New Delhi-110002 ] Respondents. 2 WITH WRIT PETITION NO.2453 OF 2010 Ashish Gokul Sonje ] s/o Gokul Sonje ] Through his father and natural guardian ] Gokul Sonje ] Residing at and post Shevade ] Tal.Shindkheda, Dist. Dhule ]... Petitioner. Versus 1 Kalyani Charitable Trust’s ] R G Sapkal College of Pharmacy ] Anjaneri, Nashik ] ] 2 Directorate of Technical Education ] Competent Authority ] State of Maharashtra, 3, Mahapalika ] Marg, Mumbai-400001 ] ] 3 State of Maharashtra ] Mantralaya, Mumbai. ] ] 4 The Pharmacy Council of India ] Combined Council’s Building, ] Kotla Road, Aiwan-E-Ghalib Marg, ] New Delhi-110002 ] Respondents. 3 WITH WRIT PETITION NO.2454 OF 2010 Ashwini Rupchand Ahire ] Adult, Occ. Student ] Residing at Suviraj Sadan ] Kusumba Road, Dayane, ] Malegaon, Dist. Nashik ]... Petitioner. Versus 1 K.B.H.S.S. Trust’s ] Institute of Pharmacy, ] Bhaygaon Road, Opp. ] Jajuwadi, Malegaon Camp, ] Nashik ] ] 2 Directorate of Technical Education ] State of Maharashtra, 3, Mahapalika ] Marg, Mumbai-400001 ] ] 3 State of Maharashtra ] Mantralaya, Mumbai. ] ] 4 The Pharmacy Council of India ] Combined Council’s Building, ] Kotla Road, Aiwan-E-Ghalib Marg, ] New Delhi-110002 ] Respondents. 4 WITH WRIT PETITION NO.2455 OF 2010 Manoj Ashok Vaishnav ] Adult, Occ. Student ] R/at Pathare, Taluka Sinnar, ] Dist. Nashik ]... Petitioner. Versus 1 K.B.H.S.S. Trust’s ] Institute of Pharmacy, ] Bhaygaon Road, Opp. ] Jajuwadi, Malegaon Camp, ] Nashik ] ] 2 Directorate of Technical Education ] State of Maharashtra, 3, Mahapalika ] Marg, Mumbai-400001 ] ] 3 State of Maharashtra ] Mantralaya, Mumbai. ] ] 4 The Pharmacy Council of India ] Combined Council’s Building, ] Kotla Road, Aiwan-E-Ghalib Marg, ] New Delhi-110002 ] Respondents. Mr. P B Shah for the Petitioners. Mr. S R Nargolkar, GP, for the Respondents/State. CORAM : A M KHANWILKAR & R M SAVANT, JJ Judgement Reserved on : 19/04/2010 Judgement Delivered on : 07/05/2010 5 JUDGMENT : [PER R M SAVANT, J]. 1 Heard counsel for the Parties. 2 Rule. Rule made returnable forthwith by consent. Mr.Nargolkar, Government Pleader, waives notice for Respondents/State. 3 As short question is involved, the Petitions are taken up for final disposal forthwith by consent. 4 The above Petitions filed under Article 226 of the Constitution of India raise a challenge to Regulation 15 of the Education Regulations 91 of the Respondent No.4 – Pharmacy Council of India. In so far as said Regulation 15 is concerned, it prescribes that only a student who has secured 60% marks in a single attempt in the Diploma of Pharmacy examination would be entitled to direct admission to the 2nd year degree course in pharmacy. The Regulation is challenged on the ground that the same is arbitrary, unreasonable and discriminatory in nature, 6 inasmuch as it discriminates between the students who have secured 60% marks in the single attempt and the students who have secured the same percentage but not in a single attempt. The Petitions also challenge two communications i.e. communication dated 1st February 2010 issued by the Respondent No.1 to the Petitioners and the communication dated 30th January 2010 addressed by the Respondent No.2 to Respondent No.1 thereby the admissions of the Petitioners to the Degree Course in Pharmacy has been cancelled. 4 Since the Petitions involved identical facts and raise common issue, the same are heard together and disposed of. 5 For the sake of convenience, Writ Petition No.2452 of 2010 is treated as a lead matter. 6 The petitioner enrolled himself for the Diploma in Pharmacy at Jamia College of Pharmacy and appeared for the First Year Summer Examination, 2007 conducted by the Maharashtra 7 State Board of Technical Education. The Petitioner obtained First Class in the said First Year Examination. The Petitioner thereafter appeared for the Final Year Summer Examination, 2008 and the Petitioner was declared as failed as he secured 13 marks under the subject head “TH” and 31 marks under the subject head “AG”. The Petitioner thereafter appeared for the Final Year Winter Examination again in the year 2008 for the said subjects in which he had failed and obtained 22 marks under the subject head “TH” and 40 marks under the subject head “AG” and was declared as having passed the said Diploma Examination. The total marks obtained by the petitioner in the said examination were shown as 641 out of 1000 i.e. more than 60%. The process of granting admission to the degree course in Pharmacy was commenced by the Director of Technical Education under the aegis of the Higher and Technical Education Department of the Government of Maharashtra. A Brochure was published for admission to the said degree course for the year 2009-10. A candidate could secure admission by applying for the same online. The Petitioner accordingly secured admission to the said degree course in 8 Pharmacy directly to the 2nd year in the category of a candidates having secured first class in the first attempt. The Petitioner whilst seeking admission had submitted all his original documents. The Petitioner was allowed to fill up the form online on the computer at the Application Form Receipt Centre. The Petitioner received Option form for Round-I in the Centralised Admission Process, since the Petitioner was in merit, he was given General Merit No. 2280. The Petitioner was admitted for the said degree course in the MGVM’s Samajshri Prashantdada Hiray College of Pharmacy, Malegaon Camp, Malegaon. The Petitioner was granted admission directly to the Second Year of four year degree course in Pharmacy. 7 As mentioned herein above, the Petitioner has secured 641 marks out of 1000 but the class mentioned in the certificate issued by the Maharashtra Technical Board was mentioned as “Pass” Class. It appears that the Respondent No.2 issued a letter to the Respondent No. on 30th January 2010 informing the Respondent No.1 that the above Petitioner and the Petitioners in the companion Writ Petitions were not eligible for admission as per 9 Rule 2.1 of the Rules of Admission as contained in the brochure. Acting on the said letter dated 30th January 2010, the Respondent No.1-College by its letter dated 1st February 2010 cancelled the admission of the Petitioner on the ground that the Petitioner was not eligible to be admitted directly to the Second Year Degree Course in Pharmacy. As indicated above, the said two communications are the subject matter of challenge in the above Petitions. 8 Since the Petitioner in the above Petition and the Petitioners in the companion Petitions are held ineligible for admission in view of Rule 2.1 of the Rules of Admission to the degree course. It would be relevant to reproduce the said Rule 2.1 which reads thus :- “2.1 Education Qualification : The candidate must be Indian National and should have passed HSC Examination with Physics, Chemistry and Biology/Mathematics (or both) from Board of Higher Secondary Examination, Maharashtra State. Candidates who have not offered either Mathematics or Biology at XII Std Examination shall have to appear and 10 pass in the particular subject at the Examination of XII Std conducted by the Higher Secondary Board in Maharashtra State. AND The Candidate should have passed in First Class/First Class with condonation, post HSC Diploma Course in Pharmacy (as per ER-91 Regulation of PCI) from an Institution Approved by AICTE and of the Maharashtra State of Technical Education (MSBTE) OR Any other Recognized Diploma Equivalent to the Diploma awarded by the Maharashtra State Board of Technical Education (MSBTE) with English as the medium of instruction at Diploma Level OR Any other AICTE approved Institution which has been granted Academic Autonomy by the Government of Maharashtra or University in the State of Maharashtra. 9 Some other students who were aggrieved by similar communications as the ones in the instant Petitions had filed Writ Petition No.1775 of 2010 and Writ Petition No.1776 of 2010. The said Writ Petitions were dismissed by us by orders dated 25th March 2010 and the action of the Respondents herein, who were also the Respondents in the said Writ Petitions, of cancelling the 11 admission on the ground of the Petitioners being not eligible were upheld. The said action was upheld in the context of Education Regulations 91 of the Respondent No.4 and especially Regulation 15 thereof which inter-alia provides that candidate to be eligible for admission directly to the second year degree course has to pass Diploma Examination in the first attempt. The said Regulation 15 is reproduced herein under and reads thus :- 15 Minimum marks for passing the examination : A student shall not be declared to have passed Diploma in Pharmacy examination unless he/she secures at least 50% marks in each of the subject separately in the theory examinations, including sessional marks and at least 50% marks in each of the practical examinations including sessional marks. The candidats securing 60% marks or above in aggregate in all subjects in a single attempt at the Diploma in Pharmacy (Part-I) or Diploma in Pharmacy (Part-II) examinations shall be declared to have passed in first class the Diploma in Pharmacy (Part-I) or Diploma in Pharmacy (Part-II) examinations, as the case may be Candidates securing 75% marks or above in any subject or subjects shall be declared to have passed with distinction in the subject or those subjects provided he/she passes in all the subjects in a single attempt. 10 Confronted with the situation of having to answer the Regulation 15 of the said Educational Regulation and also faced with the situation where challenge to cancellation of admission 12 communicated by similar letters having failed before this Court, the Petitioner in the above Petition and the Petitioners in other companion Petitions seek to now lay a challenge to the said Regulation-15 on the ground of the same being arbitrary, unreasonable and discriminatory, though the said Regulation was not challenged initially when the Petitions were filed, the above Petitions were amended by incorporating the challenge to the said Regulation-15. 11 The said Regulation has been challenged on the ground that the said Regulation makes a classification between the students who have secured 60% marks in a single attempt and the students who have secured 60% marks but not in a single attempt. The said classification, according to the Petitioner, has no nexus with the object sought to be achieved viz. admission of a student on merit directly to the Second Year. It is also averred that the reasonable chances are required to be granted to a candidate like various others examinations. 13 12 The said Regulation is also challenged on the ground that different States have laid down different qualification for direct admission to the second year degree course in Pharmacy which has resulted in discrimination between the students who were all similarly situated. It is contended that in so far as State of Karnataka is concerned, the qualification required is that a candidate should be having a Diploma in Pharmacy and obtained not less than 40% in the aggregate. Similarly in the State of Kerala the requirement is that Diploma in Pharmacy with 50% marks, unlike in the present case wherein the student is required to pass Diploma Examination in a single attempt with first class. 13 On behalf of the Respondents an affidavit in reply has been filed by one Vinod Mahadeorao Mohitkar – Deputy Director, Directorate of Technical Education, Maharashtra State, Mumbai. In para 3 of the said affidavit the reasons for cancellation of the Petitioner’s admission have been mentioned. It has been stated in the said para 3 that only a candidate who had secured First Class/First Class with condonation in Post HSC Diploma Course in 14 Pharmacy is eligible for securing direct admission in the Second Year Degree Course in Pharmacy. Since the Petitioner in the above Petition and the Petitioners in the companion Petitions have not secured First Class/First Class with condonation in Post HSC Diploma Course in Pharmacy, the Petitioner is not eligible for securing direct admission to the Second Year Degree Course in Pharmacy. It has been further stated that while submitting the application form, the Petitioner has filled the on line application form showing the class with which he has passed Diploma as First Class. It has been further stated that the Director of Technical Education, M.S. Mumbai has pointed out the deficiency to the Office of the Pravesh Niyantran Samiti, Bandra (East) Mumbai pointing out that the Petitioner is not eligible as per Clause 2.1 of the Brochure. The Petitioner’s admission to the second year Pharmacy Degree Course was accordingly cancelled. 14 The Respondents have not filed any additional affidavit to the amended petition which now lays a challenge to the Regulation 15 of the said Education Regulations 91, however, they 15 preferred to make oral submissions. 15 We have heard the learned counsel for the Petitioner Mr. P B Shah and the learned GP for the State Mr. S R Nargolkar. 16 On behalf of the Petitioner the submission were advanced only as regards the challenge to the Regulation 15 as the challenge on the ground of estoppel, had failed in the earlier round of litigation being Writ Petition Nos.1775/10 and 1776/10. 17 On behalf of the Petitioner it was contended that the said Regulation 15 is arbitrary and discriminatory inasmuch as it differentiates between a student who has secured First Class in the first attempt in the Diploma Examination and a student who has secured 60% marks but not in a single attempt. It creates an unreasonable classification between the persons who are similarly situated. It is further submitted that the said classification has no nexus with the object sought to be achieved viz. granting admission directly to the Second Year Degree Course in Pharmacy 16 to a meritorious student. 18 The learned counsel for the Petitioner submitted that in other States particularly State of Karnataka qualification for being eligible for admission directly to the Second Year of the Degree Course was Diploma in Pharmacy with not less than 40% whereas in the State of Kerala it was 50% . Our attention was drawn by the learned counsel for the Petitioner to the Rules of Admission for the Degree Course of the said two States. The Regulation 15, therefore in so far as it stipulates that a candidate should pass First Class in the single attempt was arbitrary, unreasonable and discriminatory. 19 Lastly it is submitted that in view of the fact that the State of Maharashtra has fixed higher percentage of marks for admission directly to the second year Pharmacy Degree Course in a single attempt, the same would result in depriving the candidate of equal employment opportunities, as a candidate from Maharashtra though having Diploma but not having passed 17 examination in a single attempt would be deprived of acquiring higher qualification of Degree in Pharmacy which would result in affecting his employment opportunities. 20 Per contra, it was submitted on behalf of the Respondents/State by the learned GP Shri Nargolkar that the qualification prescribed by Clause 2.1 of having passed Diploma Examination with First Class in a single attempt has been so prescribed as an exception. That exception is carved out in favour of the candidate, inasmuch as such a candidate is admitted directly to the second year of the Degree Course. The learned GP further submitted that there is no question of carving out two classes between the persons similarly situated as contended on behalf of the Petitioners, the learned GP contended that a student who has secured first class in a single attempt stands on a different footing than a student who has secured first class or 60% marks but not in a single attempt. The learned Government Pleader submitted that with a view to lay emphasis on merit, that the State Government thought it fit to prescribe the said qualification or eligibility 18 condition for direction admission to the second year of the degree course relying upon the said Regulation 15. 21 The learned GP, in so far as reliance placed by the Petitioner on the qualification or requirements of the other States are concerned, submitted that in so far as State of Maharashtra is concerned, taking into consideration the relevant factors that the said condition of having passed Diploma Examination in the first attempt with 60% marks has been prescribed, merely because in some other States the qualifications prescribed are lower would not make the Regulation 15 arbitrary, unreasonable or discriminatory as is sought to be contended by the learned counsel for the Petitioner. It is further submitted by the learned GP that there is no question of denial of equal opportunity as what is sought to be done is that the admission directly to the second year of the Degree Course is sought to be restricted to only those candidates who have secured first class in a single attempt. Therefore, ultimately if such a candidate secures admission to the Degree Course and passes the Degree Course, his prospects would 19 undoubtedly be much better than a candidate who has not passed the examination in the single attempt and thereby does not have academic excellence. The learned GP submitted that Regulation 15 is reasonable and therefore no interference was called for with the impugned letters. 22 We have heard the learned counsel for the Petitioner and and the learned Government Pleader for the Respondents/State and have bestowed our anxious consideration to the rival contentions. 23 In the instant Petition as well as in the companion Petitions, as can be seen from the facts narrated above that though the Petitioners were admitted directly to the Second Year of the Degree Course. The admissions of the Petitioners were cancelled later on, after having discovered that the Petitioners were not entitled to admission as per Rule 2.1. of the Rules of Admission reproduced herein above which incorporated Regulation 15 of the Education Regulations 1991. 20 24 The ground of estoppel which was urged by the students who were similarly situated as the present Petitioners and who had filed Writ Petition Nos.1775/10 and 1776/10 has been negatived by us by rejecting the said two Petitions in view of the requirement of Regulation 15 of the Educational Regulations 91. As mentioned herein above, the said grounds are therefore now not available for the Petitioners for being urged in the present Petitions. 25 In so far as challenge to Regulation 15 on the ground that it creates two classes between the persons similarly situated is concerned, we do not find any merit in the said submission. The Respondent No.4 Pharmacy Council of India as a Regulatory Body is entitled to lay down and prescribe the standards of education in so far as studies in Pharmacy are concerned. The Respondent No. 4-Pharmacy Council, in so far as admission to the Pharmacy Degree Course is concerned, has provided an avenue of admission directly to the second year Pharmacy Degree Course, however, that 21 avenue in terms of Regulation 15 is available to those students who have passed Diploma Examination with First Class in a single attempt. Hence an exception is carved out by the Respondent No. 4 in favour of the said category of students. The said students, therefore, stand on a different footing than the students who have passed Diploma Examination with 60% marks or First Class but not in a single attempt. The second category of students therefore cannot be equated with the first category as the entry to the Second Year of the Degree Course can be granted to only the students belonging to the first category. The State of Maharashtra through Directorate of Technical Education has accepted the said Regulation 15 and incorporated it in Clause 2.1 of the Rules of Admission. The said Regulation 15 has the effect of laying emphasis on merit, which, in our view, has a nexus with the object sought to be achieved viz admission to be granted directly to the Second Year Pharmacy Degree Course to a student having merit i.e. having passed Diploma Examination with First Class in a single attempt. We, therefore, do not find any merit in the said submission advanced on behalf of the Petitioners. 22 26 Now coming to the next submission that in view of the fact that lower standards have been fixed by other States and therefore the said Regulation 15 in so far as it fixes a higher standard of having passed Diploma Examination with First Class in a single attempt is arbitrary, unreasonable and discriminatory, in our view, is a submission which cannot be countenanced. For, just because in some other States some different standards have been prescribed that by itself would not make the said Regulation 15 arbitrary, unreasonable and discriminatory as is sought to be contended by the Petitioners. The State of Maharashtra has taken conscious decision of implementing the said Regulation 15 in so far as admission directly to the Second Year of the Degree Course is concerned. The said decision, we have to assume, has been taken by the State Government taking all the relevant factors into consideration. Therefore, in so far as State of Maharashtra is concerned, if a student is interested in direct admission to the Second Year of the Degree Course, he would have to pass Diploma Examination with First Class in a single attempt. The said 23 requirement as prescribed by Regulation 15 would, in our view, not make the said Regulation 15 arbitrary, unreasonable and discriminatory as is sought to be contended on behalf of the Petitioners on the grounds urged by the Petitioners. 27 In so far as the last submission of the learned counsel for the Petitioner viz. in view of the fact that an onerous condition has been prescribed for admission directly to the Second Year of the Degree Course, a student from Maharashtra would be deprived of equal opportunity in employment, is concerned, the same, in our view, is thoroughly mis-conceived. The said Regulation 15 prescribes the standard which a student would have to achieve for being admitted directly to the Second Year of the Degree Course. A student who secures admission through the said process and who completes Pharmacy Degree, in our view, would obviously have better prospects than a student who is less meritorious and who has completed his Degree Course in Pharmacy. In our view there is no question of the said 24 Regulation 15 having effect of depriving an equal opportunity to any student from Maharashtra in the matter of employment. In fact, the said Regulation 15 operates towards academic excellence. 29 In our view, therefore, there is no merit in any of the above Petitions. The Petitions are accordingly dismissed. Rule is discharged in all the Petitions, however, with no order as to costs. (R M SAVANT, J.) (A M KHANWILKAR, J)