Vivek Chaudhary, J.:— As counselling was due Supreme Court required this court to decide the matter on the date it is listed. Therefore, on 21.10.2020 the present bunch of petitions was heard and operative portion was pronounced in court providing that reasons shall follow, hence present detailed judgment.

2. I have heard Dr. L.P. Mishra, learned Advocate assisted by Sri Utsav Mishra, learned counsel for petitioners in leading case, Sri Rajat Rajan Singh, Sri Dharm Raj Mishra, Sri Piyush Kumar Agarwal, Sri Paavan Awasthi, learned counsels for petitioners in connected cases, learned standing counsel for State of UP, Sri Atul Kumar Dwivedi, learned counsel for respondent No. 3-Dr. APJ Abdul Kalam Technical University and Sri Ravi Singh, learned counsel for Pharmacy Council of India (PCI).

3. Petitioner pharmacy colleges have approached this Court against the recommendation/decision dated 15.05.2020 of the Review Affiliation Committee of the State of UP refusing No Objection Certificate (NOC) to the petitioner institutions for recognition of additional course of Bachelor in Pharmacy. The review committee consists of senior officers of State of UP and of the affiliating university. The said decision of the Review Affiliation Committee is later approved by the State Government. Petitioners are pharmacy colleges who were granted approval for running diploma courses in Pharmacy for academic year 2019-20 by the PCI. In its 106 Central Council meeting held on 9 and 10 April, 2019, PCI resolved to put a moratorium on the opening of a new pharmacy colleges for running diploma as well as degree course in pharmacy for a period of five years, beginning from the academic year 2020-21. The said decision was duly circulated to all the concerned by a communication dated 17.07.2019. In its 107 Central Council meeting held on 5 and 6 August, 2019, PCI carved out certain exceptions to the said policy. The same were also circulated by PCI through its communication dated 09.09.2019. Relevant exception for our purposes is “(e) Existing approved pharmacy institutions will be allowed to apply for increase in intake capacity as per P.C.I. norms and/or to start additional pharmacy courses.” Petitioners, who were already running Diploma courses under approval of PCI, applied for approval of Bachelor of Pharmacy course from the academic year 2020-21, which was also granted by PCI, it being subject to consent of Affiliation of Examining Authority and No Objection Certificate and approval of the State Government. The State Review Committee rejected the proposals of the petitioners by the impugned decision dated 15.05.2020 on the ground that colleges in surplus of present requirement are being run in the State and new colleges should be permitted only in districts which do not have such Colleges or where admission of students is in excess of 80% of the capacity.

4. The submission on behalf of petitioners is that once PCI has taken a policy decision, taking into consideration the difficulties being faced by Pharmacy colleges due to excess number of colleges coming into place and has prescribed the norms on the said issue for the entire country, it is beyond the purview of the State Government or its Committee to prescribed different norms. Any policy decision which stands pronounced for the entire country by the PCI, apex statutory body, has to be complied by the State Government in letter and spirit. Counsel for PCI supports the contention of the petitioners.

5. Learned Standing Counsel and learned counsel for University strongly dispute the same and place reliance upon the approval letter of PCI which provides that the same is subject to consent of Affiliation of Examining Authority and No Objection Certificate/approval of the State Government. Respondents argue that thus State Government has sufficient power to place any conditions, including those divergent to the policy of the PCI, while granting approval for new courses in the existing colleges also.

6. The dispute with regard to power of the State Government to take policy decisions viz-a-viz the apex statutory body, All India Council for Technical Education(AICTE) in the given case, with regard to technical education came up for consideration before the Supreme Court in the Case of Jaya Gokul Educational Trust v. Commissioner & Secretary to Government Higher Education Department, Thiruvananthapuram, Kerala State1. In the said case, the State of Kerala had taken a policy decision, not to grant approval for establishment of further more engineering colleges in the State, which was at variance with the decision of AICTE. The relevant paragraph 27 of the judgment, settling the issue, reads:

“27. The so-called “policy” of the State as mentioned in the counter affidavit filed in the High Court was not a ground for refusing approval. In Thirumuruga Kirupananda & Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust v. State of T.N., (1996) 3 SCC 15, which was a case relating to medical education and which also related to the effect of a Central law upon a law made by the State under Entry 25 List III, it was held (at SCC p. 35, para 34) that the “essentiality certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now vests with the Central Government alone”.

Therefore, the State could not have any “policy” outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. We may however add that if thereafter, any fresh facts came to light after an approval was granted by the AICTE or if the State felt that some conditions attached to the permission and required by the AICTE to be complied with, were not complied with, then the State government could always write to the AICTE, to enable the latter to take appropriate action.

Decision of University in not granting further or final affiliation wrong on merits.”

7. The aforesaid judgment of Jaya Gokul Educational Trust (supra) was again followed by the Supreme Court in the case of State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya2. In paragraphs 63, 64, and 68 of the said judgment, the Supreme Court again retreating its earlier view that final authority lies with the apex technical body (NCTE) only.

8. The said paragraphs read:

“63. In the instant case, admittedly, Parliament has enacted the 1993 Act, which is in force. The Preamble of the Act provides for establishment of National Council for Teacher Education (NCTE) with a view to achieving planned and coordinated development of the teacher-education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher-education system and for matters connected therewith. With a view to achieving that object, National Council for Teacher Education has been established at four places by the Central Government. It is thus clear that the field is fully and completely occupied by an Act of Parliament and covered by Entry 66 of List I of Schedule VII. It is, therefore, not open to the State Legislature to encroach upon the said field. Parliament alone could have exercised the power by making appropriate law. In the circumstances, it is not open to the State Government to refuse permission relying on a State Act or on “policy consideration”.

64. Even otherwise, in our opinion, the High Court was fully justified in negativing the argument of the State Government that permission could be refused by the State Government on “policy consideration”. As already observed earlier, policy consideration was negatived by this Court in Thirumuruga Kirupananda Trust, as also in Jaya Gokul Educational Trust.

68. In view of the fact, however, that according to us, the final authority lies with NCTE and we are supported in taking that view by various decisions of this Court, NCTE cannot be deprived of its authority or power in taking an appropriate decision under the Act irrespective of absence of No Objection Certificate by the State Government/Union Territory. Absence or non-production of NOC by the institution, therefore, was immaterial and irrelevant so far as the power of NCTE is concerned.”

9. So far as the status of PCI is concerned, in the case of The Pharmacy Council of India v. Dr. S.K. Toshiwal Educational Trusts Vidarbha Institute of Pharmacy3, the issue, whether PCI or AICTE shall be the apex body in the field of pharmacy education, came up before supreme court. Supreme Court after detailed consideration both the Acts concerned, in paragraph 87 concluded:

“87. In view of the above and for the reasons stated above, it is held that in the field of Pharmacy Education and more particularly so far as the recognition of degrees and diplomas of Pharmacy Education is concerned, the Pharmacy Act, 1948 shall prevail. The norms and regulations set by the PCI and other specified authorities under the Pharmacy Act would have to be followed by the concerned institutions imparting education for degrees and diplomas in Pharmacy, including the norms and regulations with respect to increase and/or decrease in intake capacity of the students and the decisions of the PCI shall only be followed by the institutions imparting degrees and diplomas in Pharmacy. The questions are answered accordingly.”

10. Nothing displacing the aforesaid judgments has been placed by the respondents before this court. In view of the aforesaid settled legal position, there is no dispute that PCI is the final authority for Pharmacy education whose decisions are to be followed by all concerned. Once PCI had taken a policy decision with regard to norms for opening new pharmacy institutions or permission for new pharmacy courses in the existing approved pharmacy institutions, it was beyond the ambit of the State Government or any of its committees to take a stand at variance with that of PCI. The State Government and all other concerned are bound to follow the policy of PCI.

11. In view of above, all the writ petitions are allowed.

12. The impugned decision dated 15.05.2020 is set aside to the extent the same relates to the petitioner institutions only. The petitioner institutions are permitted to participate in the counselling being conducted for admission to Bachelors of Pharmacy course for the academic year 2020-21. The respondents are directed to immediately take required steps for the same.