Krupanidhi Education Trust ... vs The Secretary, Pharmacy Council ...
1991 Latest Caselaw 679 Del

ORDER

D.P.Wadhwa, J.

1. The petitioner is a trust at Bangalore in the State of Karnataka. It is an authority under Section 12(l) of the Pharmacy Act, 1948 (for short the Act) for conducting a course of study for pharmacists and is duly approved for this" course by the Pharmacy Council of India constituted under the Act. It has filed this petition challenging the action of the respondent Pharmacy Council of India in refusing to grant permission to the petitioner to increase the seats in its college of pharmacy from 60 to 120 and it has Pharmacy Council of India also sought an appropriate writ or direction to declare that Resolution Ref. No. 14-48/ 88- dated 12 December 1989 of the Pharmacy Council of India as illegal and void.

2. The petitioner started its college of pharmacy in the year 1985. It was accorded approval for 60 seats. In December 1988 the petitioner applied for increase in the number of seats from 60 to 120 which request was rejected by the Pharmacy Council of India on 25 May 1989. Earlier also a similar request for increase in the number of seats was rejected. The petitioner again approached Pharmacy Council of India for the same purpose by its letter dated 6 November 1989 but meanwhile, it appears, the Pharmacy Council of India took a policy decision which was communicated to all concerned on 12 December 1989. On that account the request of the petitioner met the same fate. This led to filing of the present writ petition.

3. At this stage it will be appropriate to set out relevant provisions of the Act to understand the controversy which has been raised in the writ petition. As the preamble of the Act shows the Act was made to make better provision for the regulation of the profession and practice of pharmacy and for that purpose to constitute Pharmacy Councils. Under clause (b) of section 2, approved means approved by the Central Council under Section 12 or section 14. The Central Council has been defined to mean the Pharmacy Council of India constituted under section. 3 of the Act. Under Section 4, Pharmacy Council of India is a body corporate having perpetual succession and a common seal, with power to acquire and hold property and shall by the said name sue and be sued. There is a Executive Committee as well which is constituted within the member of the Central Council as per Section 9 of the Act- Then Section 10 is quite relevant. It provides for promulgation of Education Regulations and it would be proper to set out this section which is as under:

"10. (1) Subject to the provisions of this section, the Central Council may, subject to the approval of the Central Government, make regulations, to be called the Education Regulations, prescribing the minimum standard of education required for qualification as a pharmacist.

(2) In particular and without prejudice to the generality, of the foregoing power, the Education Regulations may prescribe-

(a) the nature and period of study and of practical training to be undertaking before admission to an examination;

(b) the equipment and facilities to be pro- 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.

(3) Copies of the draft of the Education Regulations and of all subsequent amendments thereof shall be furnished by the Central Council to all State Governments , and the Central Council shall before submitting the Education Regulations or any amendment thereof, as the case may be, to the Central Government for approval under subsection (1) take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.

(4) The Education Regulations shall be published in the Official Gazette and in such other manner as the Central Council may direct.

(5) The Executive Committee shall from time to time report to the Central Council on the efficacy of the Education Regulations and may recommend to which means the Pharmacy Council of India. This section may also be set out in full and is as under:-

12. (1) Any authority in a State which conducts a course of study for pharmacists may apply to the Central Council for approval of the course, and the Central Council, if satisfied, after such enquiry as it thinks fit to make, that the said course of study is in conformity with the Education Regulations, shall declare the said course of study to be an approved course of study for the purpose of admission to an approved examination for pharmacists.

(2) Any authority in a State which holds an examination in pharmacy may apply to the Central Council for approval of the examination, and the Central Council, if satisfied, after such enquiry as it thinks fit to make, that the said examination is in conformity with the Education Regulations, shall declare the said examination to be an approved examination for the purpose of qualifying for registration as a pharmacist under this Act.

(3) Every authority in the States which conducts an approved course of study or holds an approved examination shall furnish such information as the Central Council may, from time to time, require as to the courses of study and training and examination to be undergone, as to the ages at which such courses of study and examination are required to be undergone and generally as to the requisites for such courses of study and examination.

4. Under Section 15, all declarations made under section 12, and section 13 or, section 14 shall be made by resolution passed at a meeting of the Central Council,. and shall have effect as soon as they are published in the Official Gazette. Under Section 16, Executive Committee is to appoint Inspector for the purpose of Chapter II relating to the Pharmacy Council of India. (Inspectors are also appointed by the Executive Committees of Respective State Pharmacy Councils for the purpose of various functions in other Chapters of the Act.) Then under sub-section (2) of Section 16, powers have been specified for the Inspectors to exercise, and one of such powers is to inspect any institution whose authorities have applied for the approval of its course of study or examination. The Executive Committee under sub-section (4) of this section is to forward a copy of every report of inspection the authority or institution concerned and shall also forward a copy together with any comments thereon which the authority or institution may have made, to the Central Government and to the Government of the State in which the authority or institution is situated. Chapter III deals with State Pharmacy Councils and is not very relevant for own purposes. Under Section 29 which falls in Chapter IV, there is to be register of pharmacists for each State and in other sections of this Chapter qualifications for entry in the register and registration are prescribed. It may be noted, however, that under subsection (1) of Section 12, the Central Council is to grant approval of the course to any authority applying for the purpose and under sub-section (2) the approval is to any authority for holding an examination in pharmacy.

5. Now in the exercise of its powers under Section 10 of the Act, the Central Council has framed Education Regulations, 1981, which have been duly approved by the Central Government and published in the Official Gazette. Regulation 5 prescribes all courses of study and detailed syllabus of each of the subjects have been set out in Appendix 'A' to the Regulations. Regulation 7 prescribes as to how the approval is to be granted for the course of study and requirements have been set out in Appendix 'B' to the Regulations. This regulation 7 is as under:

"7. Approval of course of study. The course of regular academic study given under regulation 5 shall be conducted by an authority in a State, which shall be approved by the Pharmacy Council of India under subsection (1) of Section 12 only if it provides adequate arrangements for teaching in regard to building, accommodation, equipment and teaching staff as, specified in Appendix-B to these regulations."

6. Regulation 12 prescribes conditions for approval of examination to be conducted by an authority and the conditions have been set out in Appendix-C to these regulations. This regulation 12 is again as under:

" 12. Approval of examination. The examinations mentioned in regulations 8 to 10 shall be held by an authority hereinafter referred to as the examining authority in a State which shall be approved by the Pharmacy Council of India under sub-section (2) of Section 12. Such approval shall be granted only if the examining authority concerned fulfills the conditions as specified in Appendix-C to these regulations."

Regulation 14 refers to practical training and sub-regulation (2) thereof provides that no institution referred to in sub-regulation (1) shall be eligible to impart practical training unless it fulfills the conditions specified in Appendix-D to these regulations. If we now refer to Appendix-B which pertains to the conditions to be fulfillled by the academic training institution, it provides that any auth- in India applying to the Pharmacy Council of India for approval of courses of study for pharmacists under sub-section (1) of Section 12 of the Act, shall provide for accommodation, staff and equipment including library as well. Appendix-C provides that Examining Authority shall be either a statutory Indian University or a body constituted by the Central or State Government. This Appendix further provides that such authority shall ensure that discipline and decorum of the examinations are strictly observed at the examination centres. Then certain conditions are prescribed for the authority conducting examination to be fulfillled. Appendix-D provides for conditions to be fulfillled by the institution to be recognised for giving practical training. For our purpose we need not refer to this appendix.

7. It would be, thus, seen that when Section 12 uses the expression authority in a State, it would refer to authority conducting the course under sub-section (1) thereof and to an authority holding examination in pharmacy as referred to in sub-section (2) of that section.

8. In the present case, when the petitioner applied for increase in number of seats an inspection was done as required under Section 16 of the Act. The inspection report was submitted and it provided for increase in the strength of staff by three numbers. This fact was well known to the petitioner and it appears in pursuance thereto: it even advertised for three posts and held interviews of the candidates to be appointed on the staff of the petitioner. The controversy, however, remained that while the petitioner wanted the sanction to be granted first and then to make the appointments, while the Central Council wanted the infrastructure to be completed first before according any sanction. In the letter rejecting the request of the petitioner no reason has been given and on that account that order was assailed by Mr. Nagpal. In the absence of the inspection report having been given to the petitioner we might have accepted his submission, but in the present case, the petitioner was left with no doubt as to what was the reason for the Central Council coming to the conclusion that the request of the petitioner for increase in number of seats be not accepted. However, this controversy need not detain us any further as it was submitted by Mr. Nagpal that the petitioner will appoint the staff first to meet the requirement of the inspection report and then the Central Council should accord its permission for increase in the number of seats. But then this does not still conclude the matter. The petitioner has to face the policy decision dated 12 December 1989 of the Pharmacy Council of India which was communicated to all the institutions conducting courses and examinations by letter dated 12 December 1989 of the Pharmacy Council of India. This letter reads as under: -

"Sir/Madam,

In continuation to this Councils letter of even file and dated 2nd June, 1989, on the subject cited above, I am directed to state that the council has taken a decision not to allow any raise in intake of admissions beyond a strength of 60 students to the first year and second year of the Diploma Course in Pharmacy respectively and also not to approve any additional class of 60 students for running the one year (final year) course of the Diploma in Pharmacy. Thus an institution conducting two years Diploma course in Pharmacy will admit 60 students in the first year who after passing the first year examination will be promoted to the second year, the total strength of both the years at a time in an academic year should not in any case exceed 120 students. No request for raising admission beyond the said intake of 60 will be entertained. This may please be noted.

Kindly acknowledge its receipt."

9. Mr. Tewari, learned counsel for the respondents said that in view of this letter now at this point of time no seat can be increased by the petitioner. This letter has been assailed by the petitioner on the ground that it is arbitrary in nature and is beyond the power of the Central Council and further that no approval of this policy decision was accorded by the Central Government and this was also not notified in the Official Gazette. In the return nothing has been said by the respondents to all these contentions of the petitioner except to say that the averments were wrong and baseless. We feel the petitioner has raised very valid points. For the time being we are not going into the question if the Central Council can take such a policy decision. The fact remains that there is no approval of any-, such policy decision by the Central Government which is requirement of Section 10 of the Act. In our view, this policy decision will form part of the Education Regulations and. for that purpose necessary formalities have to, be gone into. A point was also raised by Mr. Nagpal that Central Council has no power to accord or not to accord approval regarding the increase in number of seats. This arguments we are unable to accept. We find that Central Council, which is Pharmacy Council of India, has full power to prescribe not only the courses but to see that the education is properly imparted and all the infrastructure like the buildings, staff, equipment, library, etc. are available to the students who undergo the courses of study and then take the examination. Powers of the Council cannot be circumscribed. The Act and the Education Regulations fully empower the Central Council, i.e., the Pharmacy Council of India, to prescribe course of study for the purpose of admission to an approved examination for pharmacists and then to oversee the working of the authority conducting the approved course of study for pharmacists and also holding examination for them. Approval to an authority for conducting the course of study and to an authority for' conducting examination can be granted by the Pharmacy Council of India only if the authority conducts itself in conformity with the Education Regulations. The Pharmacy Council of India has power to restrict the number of seats for admission to an approved course of pharma so long the conditions prescribed in Appendix of the Regulations are not fulfillled. At the same time, the Regulations do not authorise the Pharmacy Council of India to ban altogether the increase in number of seats if the authority under Section 12(l) of the Act fulfills all the conditions laid by the Act and the Education Regulations.

10. We are, therefore, of the opinion that while the Pharmacy Council of India has power to accord or not to accord its approval to the increase in number of seats, but it cannot act on its policy decision referred to above and communicated by letter dated 12 December 1989. Since nothing has been said in the return for the basis of such a decision which would also appear to be outside the Education Regulations and is without the approval of the Central Government and has not been promulgated in accordance with Section 10 of the Act, it suffers from the vice of arbitrariness. That policy decision has, therefore, to be quashed. This bar having been removed, the petitioner will be entitled to increase in the number of seats subject to, however, that necessary staff is appointed at per the inspection report given under Section 16 of the Act. Accordingly, this writ petition is allowed. Rule is made absolute. On the petitioner communicating to the Pharmacy Council of India of the recruitment of the necessary staff and complying with other conditions of the inspection report, the Pharmacy Council of India shall accord its approval within sixty days thereof keeping in view the academic session. In the circumstances, there will be no order as to costs.

11. Order accordingly.