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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ALOK ARADHE, S. VISHWAJITH SHETTY, JJ.
Pharmacy Council Of India – Appellant
Versus
Rajeev College Of Pharmacy – Respondent
W.A. No.746 of 2020 (EDN-REG) In W.P. No.52868 of 2019 (EDN-REG)
Decided on : 09-11-2021
Pharmacy Council of India - Moratorium on Opening of New Pharmacy Colleges - Pharmacy Act, 1948, Section 3, 10, 12 - The Pharmacy Council of India imposed a moratorium on opening new pharmacy colleges for a period of five years, which was challenged in court. The court held that the PCI's decision to impose the moratorium was not permissible under the Act and suspended the operation of Section 12 of the Act, and therefore, the appeal was dismissed.
Fact of the Case:
The Pharmacy Council of India (PCI) imposed a moratorium on opening new pharmacy colleges for a period of five years, which was challenged in court. The court held that the PCI's decision to impose the moratorium was not permissible under the Act and suspended the operation of Section 12 of the Act.
Finding of the Court:
The court found that the PCI's decision to impose the moratorium was not permissible under the Act and suspended the operation of Section 12 of the Act. As a result, the appeal was dismissed.
Issues: The issues before the court were: (i) Whether the PCI could impose a moratorium on opening new pharmacy colleges for a period of five years; (ii) Whether the PCI suspended the operation of Section 12 of the Act for the consideration of application for grant of approval for diploma and degree courses; (iii) Whether the PCI's decision satisfied the requirement of the statute; (iv) Whether the PCI acted arbitrarily and discriminatorily in selectively providing for exceptions and violated the mandate contained in Article 14 of the Constitution of India.
Ratio Decidendi: The court held that the PCI's decision to impose the moratorium was not permissible under the Act and suspended the operation of Section 12 of the Act, which was not allowed. The court also emphasized that the operation of a statutory provision cannot be restricted by issuing executive instructions and that the executive instructions cannot supplant or supersede the statutory provision.
Final Decision: The court dismissed the appeal, finding that the PCI's decision to impose the moratorium was not permissible under the Act and suspended the operation of Section 12 of the Act.
JUDGMENT :
This intra court appeal has been filed against the order dated 19.11.2020 passed by the learned Single Judge in W.P.No.52868/2019, by which communications dated 17.07.2019 and 09.09.2019 issued by the PCI (hereinafter referred to as 'the PCI' for short) have been quashed and the writ petition preferred by the respondent Nos.1 and 2 has been allowed. The respondent No.4 - Rajiv Gandhi University of Health Sciences (hereinafter referred to as 'the University' for short) has been directed to issue No Objection Certificate (NOC) to respondent Nos.1 and 2 for establishment of new pharmacy colleges within a period of four weeks. The PCI has also been directed to receive the applications submitted by respondent Nos.1 and 2 for establishment of new pharmacy colleges and process the same within a period of four weeks from the date of receipt of grant of NOC by University. In order to appreciate PCI's grievance, relevant facts need mention, which are stated infra.
2. The PCI is a body constituted under Section 3 of the Pharmacy Act, 1948 (hereinafter referred to as 'the Act' for short). The PCI has been constituted with an object to regulate the profession as well as education in pharmacy.
3. The University vide communication dated 29.10.2018 invited applications from eligible and interested institutions for starting new courses in various streams to seek consents for affiliation for academic year 2020-21. The respondent Nos.1 and 2 having provided an established requisite infrastructure in order to obtain permission for resorting pharmacy course from the academic session 2020-21 submitted an application to the University for processing the same for grant of consent of affiliation. The PCI in its 106th Central Council Meeting held on 09/10.04.2019 resolved to put a moratorium on opening of new pharmacy college for Diploma in Degree Courses in Pharmacy for a period of five years commencing the academic year 2020-21. The Local Inspection Committee of University conducted an inspection on 25.06.2019 in pursuance of the application submitted by the respondent Nos.1 and 2 and after having satisfied itself with regard to requirement of infrastructure and faculty/staff submitted a recommendation for affiliation of respondent Nos.1 and 2. The University in the 142nd meeting of the syndicate held on 29.06.2019 accepted the recommendation of the committee for grant of consent of affiliation to start B-Pharma course with an intake capacity of 100 sets for the academic session 2020-21.
4. The aforesaid resolution was circulated to all State Governments/Union Territories for information and necessary action vide letter dated 17.07.2019. The PCI received representations seeking clarification on various aspects of the moratorium. Thereupon the Central Council in its 107th meeting held on 05.08.2019 and 06.08.2019 decided that moratorium shall be subject to conditions mentioned therein. The aforesaid decision was circulated to various State Governments/Union Territories for information and necessary action vide communication dated 09.09.2019.
5. The respondents 1 and 2 challenged the validity of the aforesaid communications dated 17.07.2019 and 09.09.2019 in a writ petition before the learned Single Judge. An interim order dated 27.12.2019 was passed by learned Single Judge by which PCI was directed to permit respondent Nos.1 and 2 to file the applications for opening new college for academic sessions 2020-21 and the aforesaid applications were directed to be processed. It was further directed that no final decision will be taken on the applications, which may be submitted by respondent Nos.1 and 2. The learned Single Judge vide order dated 19.11.2020 inter alia held that PCI has the power to regulate, but not prohibit the opening of new colleges. The communications dated 17.07.2019 and 09.09.2019 were quashed and the PCI was directed to rece
The main legal point established in the judgment is that the Pharmacy Council of India's decision to impose a moratorium on opening new pharmacy colleges for a period of five years was not permissibl....
The PCI cannot impose a moratorium on the establishment of new pharmacy colleges by way of an executive decision without framing Regulations under Section 10 of the Pharmacy Act, 1948. The impugned d....
Opening of new Pharmacy Colleges – Merely because an institution has a right to establish an educational institution does not mean that such an application has to be allowed – In a particular area, i....
The State lacks competence to impose a ban on NOCs for educational institutes via executive order, which violates fundamental rights under Articles 14 and 19(1)(g) of the Constitution.
Non-speaking orders and lack of opportunity to rectify deficiencies in the approval process for pharmacy colleges, and the need for compliance with statutory provisions under the Pharmacy Act, 1948.
The main legal point established in the judgment is the exclusive authority of the Pharmacy Council of India (PCI) in regulating pharmacy education, as per the provisions of the Pharmacy Act, 1948. T....
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