Back
SUPREME COURT OF INDIA
B.R. GAVAI, PAMIDIGHANTAM SRI NARASIMHA, JJ.
Pharmacy Council Of India – Appellant
Versus
Rajeev College Of Pharmacy And Ors. – Respondents
CIVIL APPEAL NO. 6681 OF 2022 [Arising out of Special Leave Petition (Civil) No.19671 of 2021], CIVIL APPEAL NOS. 6682-6683 OF 2022 [Arising out of Special Leave Petition (Civil) Nos.1387-1388 of 2022], WRIT PETITION (CIVIL) NO.563 to 565 OF 2022, CIVIL APPEAL NOS. 6684-6685 OF 2022 [Arising out of Special Leave Petition (Civil) Nos.14295, 14296 of 2021], CIVIL APPEAL NO. 6686 OF 2022 [Arising out of Special Leave Petition (Civil) No.1050 of 2022], CIVIL APPEAL NO. 6687 OF 2022, [Arising out of Special Leave Petition (Civil) No.1887 of
2022], CIVIL APPEAL NO. 6688 OF 2022 [Arising out of Special Leave Petition (Civil) No.2570 of 2022], CIVIL APPEAL NO. 6690 OF 2022, [Arising out of Special Leave Petition (Civil) No.4862 of 2022], CIVIL APPEAL NO. 6689 OF 2022, [Arising out of Special Leave Petition (Civil) No.5673 of 2022], WRIT PETITION (CIVIL) NO.406 OF 2022, CIVIL APPEAL NO. 6691 OF 2022 [Arising out of Special Leave Petition (Civil) No.13792 of 2022]
Decided on : 15-09-2022
(A) Constitution of India – Article 19(1) (g) – Education – Right to impart education is a fundamental right under Article 19(1)(g) and subject to control by clause (6) of Article 19 – Such a right is subject to laws imposing reasonable restrictions in interest of general public – Laws may be enacted for prescribing professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business – Though there is a fundamental right to establish educational institutions, same can be subject to reasonable restrictions which are found necessary in general public interest. (Paras 39 and 41)
(B) Pharmacy Act, 1948 – Sections 3, 10, 12 and 18 – All India Council for Technical Education Act, 1987 – Section 10 – Constitution of India – Article 19(1) (g) – Pharmacy Colleges – Moratorium on opening of new pharmacy colleges for running Diploma as well as Degree courses in pharmacy for a period of five years – Sustainability of – Right to establish an educational institution is a fundamental right under Article 19(1)(g) of Constitution of India and reasonable restrictions on such a right can be imposed only by a law and not by an execution instruction – Moratorium was issued by Central Council of appellant-PCI in its executive powers and not by framing any regulation, as provided under Sections 10 and 18 of Pharmacy Act – State or its officers cannot exercise its executive authority to infringe rights of citizens merely because Legislature of State has power to legislate in regard to subject on which executive order is issued – Even an Executive cannot do something to infringe rights of citizens by an executive action, though State Legislature has legislative competence to legislate on the subject – Resolutions/communications dated 17th July 2019 and 9th September 2019 of Central Council of the appellant-PCI which are in nature of executive instructions, could not impose restrictions on fundamental right to establish educational institutions under Article 19(1)(g) of Constitution of India – Resolutions/communications dated 17th July 2019 and 9th September 2019 of Central Council of the appellant-PCI are liable to be struck down on this short ground – There could indeed be necessity to impose certain restrictions so as to prevent mushrooming growth of pharmacy colleges – Such restrictions may be in larger general public interest – It has to be done strictly in accordance with law – If and when such restrictions are imposed by an Authority competent to do so, validity of same can always be scrutinized on touchstone of law. (Paras 32, 47, 48, 54, 55 and 56)
(B) Pharmacy Act, 1948 – Sections 3, 10, 12 and 18 – All India Council for Technical Education Act, 1987 – Section 10 – Constitution of India – Article 19(1) (g) – Opening of new Pharmacy Colleges – Applications seeking approval for D. Pharm and B. Pharm courses are required to be accompanied by a “No Objection Certificate” (“NOC”) from State Government and consent of affiliation from affiliating bodies – While scrutinizing such applications, Council can always take into consideration various factors before deciding to allow or reject such applications – 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, if there are more than sufficient number of institutions already existing, Central Council can always take into consideration as to whether it is necessary or not to increase number of institutions in such an area – However, blanket prohibition on establishment of pharmacy colleges cannot be imposed by an executive resolution. (Para 57)
Facts of the case:
By impugned judgments and orders, three High Courts of Karnataka, Delhi and Chhattisgarh had allowed writ petitions filed by respondents-institutions, which were, in turn, filed challenging Resolutions/communications of appellant-PCI dated 17th July 2019 and 9th September 2019 and dismissed Writ Appeals filed by the PCI. Vide Resolution/Communication dated 17th July 2019, appellant-PCI had resolved to put a moratorium on the opening of new pharmacy colleges for running Diploma as well as Degree courses in pharmacy for a period of five years beginning from the Academic Year 2020-2021. Vide Resolution/communication dated 9th September 2019, the aforesaid moratorium was modified, thereby exempting its application to (i) Government Institutions; (ii) Institutions in North Eastern region; and (iii) States/Union Territories where the number of institutions offering D. Pharm and B. Pharm courses (both combined) is less than 50. Additionally, vide the said Resolution/communication dated 9th September 2019, the institutions which had applied for opening colleges offering D. Pharm and/or B. Pharm courses for 2019-2020 academic session were allowed to apply for conducting diploma as well as degree courses in Academic Session 2020-2021 and existing approved pharmacy institutions were allowed to increase the intake capacity as per PCI norms and/or to start additional pharmacy course(s). Moot question, therefore, that requires consideration, is as to whether the moratorium, as imposed by Central Council of the appellant-PCI, could have been imposed by said Resolution, which is in the nature of an executive instruction of the Central Council.
Findings of Court:
Applications seeking approval for D. Pharm and B. Pharm courses are required to be accompanied by a “No Objection Certificate” (“NOC”) from State Government and consent of affiliation from the affiliating bodies. While scrutinizing such applications, the Council can always take into consideration various factors before deciding to allow or reject such applications.
Result : Appeals dismissed.
JUDGMENT :
B.R. GAVAI, J.
1. Leave granted in all the Special Leave Petitions.
2. The appeals filed by the Pharmacy Council of India (hereinafter referred to as “PCI”) mainly challenge the (i) judgments dated 9th November 2021, passed by the Division Bench of the High Court of Karnataka at Bengaluru in Writ Appeal No. 746-748 of 2020; (ii) judgment dated 7th March 2022, passed by the learned Single Judge of the High Court of Delhi at New Delhi in Writ Petition (Civil) No.175 of 2021; and (iii) judgment dated 22nd April 2022, passed by the learned Single Judge of the High Court of Chhattisgarh at Bilaspur in Writ Petition (Civil) No.3766 of 2021. Several interim orders passed by these Courts during the pendency of these matters are also subject to challenge in some of the appeals. They are also being disposed of by the present judgment.
3. By the said judgments and orders, the aforesaid three High Courts of Karnataka, Delhi and Chhattisgarh had allowed the writ petitions filed by the respondents-institutions, which were, in turn, filed challenging the Resolutions/communications of the appellant-PCI dated 17th July 2019 and 9th September 2019 and dismissed the Writ Appeals filed by the PCI. Vide Resolution/Communication dated 17th July 2019, the appellant-PCI had resolved to put a moratorium on the opening of new pharmacy colleges for running Diploma as well as Degree courses in pharmacy for a period of five years beginning from the Academic Year 2020-2021. Vide Resolution/communication dated 9th September 2019, the aforesaid moratorium was modified, thereby exempting its application to (i) Government Institutions; (ii) Institutions in North Eastern region; and (iii) States/Union Territories where the number of institutions offering D. Pharm and B. Pharm courses (both combined) is less than 50. Additionally, vide the said Resolution/communication dated 9th September 2019, the institutions which had applied for opening colleges offering D.Pharm and/or B. Pharm courses for 2019-2020 academic session were allowed to apply for conducting diploma as well as degree courses in Academic Session 2020-2021 and existing approved pharmacy institutions were allowed to increase the intake capacity as per PCI norms and/or to start additional pharmacy course(s).
4. The writ petitions filed by the Institutions before the three High Courts challenged the validity of the said moratorium and also prayed for a direction to be issued to the appellant-PCI to grant approval for opening new pharmacy institutions imparting pharmacy courses for the ensuing academic year of 2022-2023 on the basis of inspection conducted by the PCI in February 2020 and to not insist on fresh applications from the institutions pursuant to the PCI’s circular of 3rd July 2022, which was issued in compliance of the interim order of this Court dated 31st May 2022 passed in Special Leave Petition (Civil) No.4862 of 2022.
5. We have heard Shri Maninder Singh, learned Senior Counsel appearing on behalf of the appellant-PCI and Shri Rakesh Dwivedi and Shri Vinay Navare, learned Senior Counsel, Shri Amit Pai, Shri Sanjay Sharawat, Shri Siddharth R. Gupta, and Shri Shivam Singh, learned counsel appearing on behalf of their respective respondent(s).
6. Shri Maninder Singh, learned Senior Counsel would submit that the High Courts have totally erred in interfering with the Resolution dated 17th July 2019 passed by the appellant-PCI. He submits that the perusal of the preamble of the Pharmacy Act, 1948 (hereinafter referred to as “the said Act”) read with Sections 3, 10 and 12 thereof would clearly reveal that the appellant-PCI has a power to regulate in the field of pharmacy education. He submits that the power to regulate would also include a power to put a moratorium for a certain period. The learned Senior Counsel submits that perusal of Section 3 of the said Act would reveal that the Central Council of the PCI consists of experts from various fields including teachers in the subject concern
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 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....
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.
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 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....
Existing educational institutions cannot be prohibited from expanding courses or intake without prior functional regulations by the State Council, as per Section 40 of the Act.
Educational institutions can continue to operate and expand programs in the absence of established regulatory frameworks under relevant legislation until such regulations are in place.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
