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2006 Supreme(Gau) 869
GAUHATI HIGH COURT
I.A.Ansari, J.
Indian Pharmaceutical Association -Appellant
Versus
State of Tripura -Resopndent
Civil Rule No. 400 of 1996
Decided On : 15-09-2006
N.Adhikary, S.Talapatra
The main legal point established in the judgment is that qualifications for registration as a pharmacist must adhere to the Education Regulations, 1991, and any conflicting qualifications prescribed by the State Government are ultra vires the Pharmacy Act.
Headnote:
Pharmacy Act - Qualifications for Registration - Section 29, Section 30, Section 31, Section 32 - The court analyzed the relevant provisions of the Pharmacy Act, particularly the qualifications required for registration as a pharmacist and the procedure for preparation of the first register. The court found that the qualifications prescribed under the Education Regulations, 1991, must be adhered to for registration, and any conflicting qualifications prescribed by the State Government are ultra vires the Pharmacy Act. The court held that the impugned Notification and order allowing registrations with conflicting qualifications cannot be sustained, and all such registrations are set aside and quashed.
Fact of the Case:
The case involved a challenge to the qualifications prescribed by the Government of Tripura for registration of pharmacists, which conflicted with the Education Regulations, 1991. The petitioners contested the legality and sustainability of the amendment of rule 72 and an advertisement allowing registrations with conflicting qualifications.
Finding of the Court:
The court found that the qualifications prescribed by the State Government were inconsistent with the Education Regulations, 1991, and therefore ultra vires the Pharmacy Act. The impugned Notification and order allowing registrations with conflicting qualifications were set aside and quashed.
Issues: The main issues were the legality of the qualifications prescribed by the State Government for registration of pharmacists and the sustainability of registrations made pursuant to conflicting qualifications.
Ratio Decidendi: The court held that the State Government has no power to prescribe qualifications for registration of pharmacists that are inconsistent with the Education Regulations, 1991. Registrations made with conflicting qualifications were deemed non est in law and set aside.
Final Decision: The impugned Notification and order were set aside and quashed, and all registrations made pursuant to them were also set aside and quashed.
2. Heard Mr. S. Talapatra, learned senior counsel, appearing on behalf of the petitioners, and Mr. N. Adhikary, learned Advocate General, Tripura.
3. In order to appreciate the controversy raised in the present writ petition, a careful analysis of the relevant provisions of the Pharmacy Act, 1948 ('the Pharmacy Act') is imperative. With this end in view, let me, point out, the object and the scheme of the Pharmacy Act.
4. What needs to be noted, at the very outset, is that the Pharmacy Act was enacted to regulate the profession of pharmacy. The statement of object and reasons of the Pharmacy Act succinctly describe the legislative intent behind this legislative enactment in these words :
"Statement of objects and Reasons : It is desirable that, as in most other countries, only persons who have attained a minimum standard of professional education should be permitted to practise the profession of Pharmacy. It is accordingly proposed to establish a Central Council of Pharmacy, which will prescribe the minimum standards of education and approved courses of study and examinations ibr Pharmacists and Provincial Pharmacy Councils, which will be responsible for the maintenance of provincial registers of qualified pharmacists. It is further proposed to empower provincial Governments to prohibit the dispensing of medicine on the prescription of a medical practitioner otherwise than by or under the direct and personal supervision of, a registered pharmacist."
5. A careful reading, as a whole, of the Pharmacy Act shows that section 3 empowers the Central Government to constitute, as soon as may be, a Pharmacy Council of India, which will be known, according to 2(c), as Central Council. Section 10 empowers the Central Council to make regulations subject to the approval of the Central Government. These regulations, which are to be known as Education Regulations, could prescribe the minimum standard of education required as pharmacist. The Education Regulations, so framed, under section 10, may, amongst others, prescribe not only the minimum standard of education required for qualification as a pharmacist, but also prescribe : (a) the nature and period of study and of practical training to be undertaken before admission to an examination ; (b) the equipment and facilities to be provided for students undergoing approved courses of study ; (c) the subjects of examination and the standards therein to be attained ; (d) any other conditions of admission to examinations."
6. There is no dispute that the Central Council has framed, with the approval of the Central Government, Education Regulations from time to time. The Education Regulations, 1991, provide that the minimum qualification required for registration as a pharmacist shall be a diploma in, pharmacy (Part-1 and Part-2) and satisfactory completion of diploma in pharmacy (Part-3) or any other qualification, which may be approved by the Pharmacy Council of India, as equivalent to such diploma.
7. Regulations 3 and 4 of the Education Regulations, 1991, prescribe requisite qualifications for being registered as a pharmacist as under :
"2. Qualification for Pharmacist. - The minimum qualification required for registration as a pharmacist shall be a pass in diploma in pharmacy (Part I & Part II and satisfactory completion of Diploma in Pharmacy (Part-Ill). Or Any other qualification approved by the Pharmacy Council of India as equivalent to the above. 3. Diploma in Pharmacy
