The Chhattisgarh High Court recently comprising of a single bench of Justice P Sam Koshy while quashing the five year ban imposed by the Pharmacy Council of India (PCI) and Government of India (GOI) on the opening of new Pharmacy Colleges in India observed that the ban in question is unconstitutional, monopolistic and discriminatory in nature. (Chouksey College of Pharmacy & Another Vs. Pharmacy Council of India & Others)
Facts of the case
The PCI through a resolution on July 17, 2019 had put a moratorium on the opening of new pharmacy colleges for running diploma as well as degree courses in pharmacy for a period of 5 years beginning from the academic session 2020-21. This moratorium was not applicable in the North Eastern region of the country where there was a shortage of pharmacy colleges.
Taking into consideration mushrooming of pharmacy colleges in the country, the availability of sufficient qualified pharmacist workforce, and shortage of trained and qualified teaching faculty in the wake of rapid increase in the number of pharmacy colleges which might affect the quality of education imparted to students, the ban was imposed.
The said resolution was communicated to the Union ministry of health and family welfare, for information under intimation to All India Council of Technical Education (AICTE).
The PCI through a circular on September 9, 2019 modified the order. As per the circular, the moratorium will not apply to the government institutions, the institutions in the North Eastern region, States/Union Territories where the number of D. Pharm and B. Pharm institutions (both combined) are less than 50. The institutions which had applied for opening D. Pharm and/or B. Pharm colleges for 2019-20 academic session either to the PCI or to the AICTE and the proposal was rejected or not inspected due to some reason or the other will be allowed to apply for 2020-21 academic session and this relaxation is given only for one year i.e. for 2020-21 academic session only.
Existing approved pharmacy institutions will be allowed to apply for increase in intake capacity as per PCI norms and/or to start additional pharmacy course(s).
The colleges had challenged the 5-year ban order on multiple grounds including violation of Section 10 of the Pharmacy Act, 1948, creating a vacuum in the field of pharma care in Chhattisgarh facing medical facilities from qualified trained personnel.
Contention of the Parties
According to the petitioners, if at all if it is a regulation framed and issued by the PCI under Section 10 of the aforementioned Act of 1948, it needs to be published in an official Gazette. That, unless it is published in an official Gazette, it cannot be accepted to be a regulation and if it is not a regulation in terms of Section 10, the said orders would not have a force of law. Unless it is a properly issued regulation, as is required under Section 10 read with Section 15 of the Pharmacy Act, it cannot be accepted to have a force of law.
The second contention of the petitioners assailing the two orders/circulars of the PCI was that the power conferred upon the PCI to regulate the profession of Pharmacy does not provide the power to prohibit. According to the petitioners, the power to regulate would not automatically include the power to prohibit as well, except in exceptional cases and situations, which too should be spelt out under the statutes or the rules framed thereunder. In the absence of any such power empowering the PCI to impose a ban or a prohibition in establishment of new colleges and institutions the two impugned circulars issued by the PCI was not sustainable and the same deserves to be interfered by this Court, declaring it to be bad in law and arbitrary.
The third issue raised by the petitioners was that of the two orders being violative of Article 14 of the Constitution of India as it has led to ex facie discrimination particularly in the light of the relaxation that was given in the impugned order Annexure P/4 dated 09.09.2019.
The 4th ground on which the challenge has been made is that the two orders under challenge in the present writ petition issued by the PCI also is violative of Article 19(1)(g) of the Constitution of India. It infringes the right of the petitioners of practicing any profession or to carry on any occupation, trade or business, which in the instant case according to the petitioners was that of establishment of an educational institution from where he intends to impart courses related to Pharmacy.
Learned ASG representing the Union of India as also the Pharmacy Council of India laid emphasis on the objects and reasons leading to the enactment of the Pharmacy Act. According to the ASG the very purpose of having the Pharmacy Act was to ensure proper regulation of the institution imparting courses on Pharmacy. Learned counsel for the respondents submitted that the fact that Pharmacy council has been authorized to regulate the institutions imparting pharmacy courses includes the power of prohibition in the event circumstances so require. Further contention of the learned ASG was that it was a policy decision of the PCI to impose moratorium and the decision was to ensure that legislative object of regulating entry into the profession of Pharmacy with minimum standard of education is fulfilled.
It was further contention of the ASG that both the resolutions passed by the Pharmacy Council have been duly communicated to the Government of India, Ministry of Health who have till now not raised any objection in respect of the two resolutions. Therefore, it has to be presumed that the two resolutions had the requisite consent and approval of the Government of India also. Referring to the judgment of the Hon'ble Supreme Court in the case of Jawaharlal Nehru Technological University Registrar Vs. Sangam Laxmi Bai Vidyapeet and Others, (2019) 17 SCC 729, the learned ASG submitted that the Supreme Court in the said judgment taking into consideration the fact that paucity of well qualified Teachers in the field of Pharmacy had observed that in the given factual backdrop mushrooming growth of institutions could not be permitted. That it was for this reason that the Pharmacy Council of India taking into consideration the large number of students qualifying each year and considering the limited scope of providing employment to all the students passing out as on date have taken a policy decision imposing a moratorium of 5 years after which the PCI would itself review its decision so far as the extending of the moratorium is concerned. The ASG further submitted that since almost 2 ½ -3 years have already passed from the time these moratorium was first imposed, there was no scope of judicial interference at this juncture made out as after about in less than two years time the PCI in any case would be taking a decision so far as moratorium is concerned.
Learned ASG submitted that the right to regulate does not mean that there is no right to prohibit. According to the counsel for the respondents once when there is a power of regulation entrusted upon the PCI it would also have the power to impose restriction and also the power to prohibit and the fact that the moratorium is only for 5 years itself would establish that it was not an absolute prohibition.
Courts Observation and Judgment
The court said, "The parent act of the Pharmacy Act 1948 doesn't contain any substantive provision empowering the PCI to impose a ban or a moratorium of the kind imposed by it. The PCI as a delegatee of the Statute has to act within the four corners of the parent enactment and that it has acted ultra-vires the same whilst imposing the said ban."
The court further added, "The ban must be treated as a 'prohibitory order', and not a mere 'regulatory order' since it seeks to suspend the opening of new institutions for a long period of 5-yrs that too only for specific category of colleges, viz. the new colleges whilst leaving the existing colleges untouched. The Court in this regard distinguished between the 'power to regulate' and the 'power to prohibit' conferred by the parent enactment and when the Court can treat a 'power to regulate', as not including the 'power to prohibit'.The ban had been imposed by way of executive instructions, without any specific conferment by the parent act. Thus the Fundamental Right to open and run educational institutions stands through these executive instructions."
The court in view of Articles 13 and 19 of the Constitution of India, held that the PCI orders amount to denuding any entity of their fundamental right to Occupation, i.e. opening or establishing of a new pharmacy institution.
The court noted, "Even though the said restriction is for a limited period, i.e. 5 years, then also for the restriction to operate even for a minimal period of time, it has to figure within the four corners of Article 19(1)(g), Article 19(2) read with Article 13(3)(a) of the Constitution of India."
The Court further noted that the two impugned resolutions were already put to test in a bunch of writ petitions before the High Court of Delhi (Shaheed Teg Bhadur College of Pharmacy Vs. Pharmacy Council of India) and High Court of Karnataka (Shifa College of Pharmacy and Others Vs. Pharmacy Council of India and others) were set aside.
The court taking into account the above observation allowed the writ petition moved by the college.
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