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IN THE HIGH COURT OF DELHI
Vikas Mahajan, J.
Tila Institute of Pharmaceutical Science - Appellant
Versus
Union of India - Respondent
W.P.(C) 16965 of 2022
Decided On : 24-12-2022
A show-cause notice must maintain an open mind and not indicate a predetermined outcome; failure to do so invalidates the proceedings under the Pharmacy Act.
Headnote:(A) Pharmacy Act, 1948 - Section 13 - Withdrawal of approval of a D.Pharm course - The petitioner college challenged the notice and subsequent order to withdraw approval, claiming a predetermined mind by the respondent - The court found the notice vitiated due to a lack of open-mindedness and held that appropriate procedural safeguards were not followed (Paras 3-32).
(B) Principles of Natural Justice - A show-cause notice must not convey a predetermined conclusion, as established in Master Singham v. DoE (2019) and Oryx Fisheries Private Limited v. Union of India (2010) - A closed mind vitiates such a notice ab initio (Paras 13-32).
Facts of the case:
The petitioner college sought to continue admitting students for its D.Pharm course after being advised not to do so by the respondent PCI, who had issued notices leading to the withdrawal of approval (Paras 4-5).
Findings of Court:
The show-cause notice and subsequent order were set aside, restoring the recognition of the college and allowing it to admit students for the academic session 2022-23 (Paras 15-16).
Issues: The court addressed whether the notice indicated a predetermined decision by the PCI to withdraw approval and whether the process adhered to principles of natural justice (Paras 2, 7, 10, 12).
Ratio Decidendi: The court emphasized that a fair and open-minded approach is essential in issuing a show-cause notice, and a sign of bias invalidates the proceeding (Paras 13-32).
Result: Writ petition allowed.
| Table of Content |
|---|
| 1. challenge to approval withdrawal and notice issuance. (Para 3 , 4 , 5 , 6) |
| 2. determination of pre-determined mind in notice. (Para 7 , 8 , 9) |
| 3. principles of fair notice and open-mindedness. (Para 10 , 11 , 12 , 13 , 14) |
| 4. set aside flawed show-cause notice. (Para 15) |
| 5. restoration of recognition and permission to admit students. (Para 16 , 17 , 18) |
JUDGMENT
Vikas Mahajan, J.
CM APPL.No.53763/2022 (exemption)
1. Allowed, subject to all just exceptions.
2. The application stands disposed of.
W.P.(C) 16965/2022 & CM APPL. 53762/2022 (for stay)
3. The petitioner is an existing college in the State of Jharkhand which was granted approval by the respondent-Pharmacy Council of India (PCI) to undertake admissions for 60 seats of D.Pharm course with effect from academic session 2019-2020.
4. The petitioner in this case is aggrieved by the order dated 02.12.2022 issued by the respondent-(PCI) whereby a decision was taken by the Executive Council of the PCI in its 380th meeting held on 31.10.2022, which was communicated to the petitioner. The operative part of the said decision reads as under:
"In view of above, it was decided as under:
a) Notice u/s 13 of the Pharmacy Act, 1948 for withdrawal of approval will remain in force and institution be advised-
i) not to make admissions from 2022-2023 academic session.
ii) forward their representation, if any, through the State Government per return of mail
b) It was further decided to convey the above decision to all concerned in compliance of order dt.20.10.2022 passed by Hon'ble Delhi Court by 1.11.2022 positively."
5. The passing of aforesaid order was preceded by an issuance of notice dated 21.01.2022 by the respondent-PCI under Section 13 of the Pharmacy Act, 1948. The relevant part of the said notice reads as under:
"In view of above, notice u/s 13(1) of the Pharmacy Act, 1948 is hereby issued for withdrawal of approval of D.Pharm course and examination further advising you-
a) not to make admission to D.Pharm course w.e.f. 2022-2023 academic session.
b) Route your representation in the matter if you wish to make any within 3 months of receipt of this notice through the State Government.
c) Submit a copy of Income Tax Return in respect of Principal and teaching faculty since inception of the course along with your representation through the State Government."
6. Challenge is also laid to the aforesaid notice dated 21.01.2022 in the present petition.
7. The only ground of challenge articulated by Mr. Rakesh Khanna, the learned senior Advocate, for the petitioner in the present petition is that the notice under Section 13 of the Act, insofar as it advices the petitioner not to make admissions to its D.Pharm course with effect from 2022-23 academic session, shows the pre-determined mind of the respondents to withdraw the approval granted to the petitioner and the passing of the subsequent order was a mere formality.
8. Mr. Rakesh Khanna, learned Senior Advocate for the petitioner submits that the operative direction in the final order is the same as the one indicated in the notice issued under Section 13 of the Act viz., not to make admissions to D.Pharm course with effect from 2022-23 academic session.
9. Mr. Abhishek Singh, the learned counsel for the respondent-PCI submits that there is no infirmity in the notice dated 21.01.2022 or in the final order dated 02.11.2022 as Section 13 of the Act contemplates expressing of intention to take action of withdrawal of approval. According to the learned counsel, the advice to the petitioner in the notice that it should not make any admissions for D.Pharm course for academic session 2022-23 is only an indication that the respondent-PCI proposes to withdraw the approval and it cannot be said that the respondent had taken any decision.
10. As the question involved in the present case is to be decided with reference to the provisions of Section 13 of the Pharmacy Act, 1948, it is apposite to reproduce the same, w
