Delhi High Court
Shaheed Teg Bahadur College Of ... vs Pharmacy Council Of India on 7 March, 2022
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 07th March, 2022
+ W.P.(C) 175/2021
SHAHEED TEG BHADUR
COLLEGE OF PHARMACY ..... Petitioner
versus
PHARMACY COUNCIL OF INDIA ..... Respondent
with W.P.(C) 176/2021, W.P.(C) 177/2021, W.P.(C) 178/2021,
W.P.(C) 179/2021 & CM APPL. 525/2021,
W.P.(C) 180/2021 & CM APPL. 526/2021,
W.P.(C) 182/2021 & CM APPL. 530/2021,
W.P.(C) 183/2021 & CM APPL. 532/2021,
W.P.(C) 184/2021 & CM APPL. 533/2021,
W.P.(C) 185/2021 & CM APPL. 534/2021,
W.P.(C) 188/2021 & CM APPLs. 537-539/2021,
W.P.(C) 189/2021 & CM APPL. 540/2021,
W.P.(C) 190/2021 & CM APPL. 541/2021,
W.P.(C) 191/2021 & CM APPL. 542/2021,
W.P.(C) 193/2021, W.P.(C) 194/2021 & CM APPL. 545/2021,
W.P.(C) 195/2021 & CM APPL. 546/2021,
W.P.(C) 196/2021 & CM APPL. 547/2021,
W.P.(C) 197/2021 & CM APPL. 548/2021,
W.P.(C) 198/2021 & CM APPL. 549/2021,
W.P.(C) 199/2021 & CM APPL. 550/2021,
W.P.(C) 200/2021 & CM APPL. 551/2021,
W.P.(C) 201/2021 & CM APPL. 552/2021,
W.P.(C) 202/2021 & CM APPL. 553/2021,
W.P.(C) 203/2021 & CM APPL. 554/2021,
W.P.(C) 204/2021 & CM APPL. 555/2021,
W.P.(C) 206/2021 & CM APPL. 559/2021,
W.P.(C) 212/2021 & CM APPL. 568/2021,
W.P.(C) 213/2021 & CM APPL. 569/2021,
W.P.(C) 215/2021 & CM APPL. 572/2021,
Signature Not Verified
Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
23:18:05 W.P.(C) 175/2021 & Connected Matters Page 1 of 38
W.P.(C) 217/2021 & CM APPL. 574/2021,
W.P.(C) 218/2021 & CM APPL. 576/2021,
W.P.(C) 219/2021 & CM APPL. 579/2021,
W.P.(C) 229/2021 & CM APPL. 610/2021,
W.P.(C) 230/2021 & CM APPL. 620/2021,
W.P.(C) 231/2021 & CM APPL. 621/2021,
W.P.(C) 232/2021 & CM APPL. 622/2021,
W.P.(C) 233/2021 & CM APPL. 623/2021,
W.P.(C) 234/2021 & CM APPL. 625/2021,
W.P.(C) 235/2021 & CM APPL. 627/2021,
W.P.(C) 236/2021 & CM APPL. 629/2021,
W.P.(C) 237/2021, W.P.(C) 239/2021, W.P.(C) 240/2021,
W.P.(C) 241/2021, W.P.(C) 242/2021, W.P.(C) 244/2021,
W.P.(C) 245/2021, W.P.(C) 250/2021 & CM APPL. 645/2021,
W.P.(C) 251/2021, W.P.(C) 252/2021, W.P.(C) 253/2021,
W.P.(C) 254/2021, W.P.(C) 255/2021, W.P.(C) 256/2021,
W.P.(C) 257/2021, W.P.(C) 259/2021,
W.P.(C) 260/2021 & CM APPL. 649/2021,
W.P.(C) 262/2021, W.P.(C) 264/2021 & CM APPL. 651/2021,
W.P.(C) 265/2021, W.P.(C) 269/2021,
W.P.(C) 270/2021 & CM APPL. 667/2021,
W.P.(C) 271/2021 & CM APPL. 674/2021,
W.P.(C) 274/2021, W.P.(C) 279/2021, W.P.(C) 280/2021,
W.P.(C) 282/2021, W.P.(C) 283/2021,
W.P.(C) 284/2021 & CM APPL. 724/2021,
W.P.(C) 288/2021, W.P.(C) 314/2021, W.P.(C) 321/2021,
W.P.(C) 6643/2020 & CM APPLs. 23138-40/2020,
W.P.(C) 10972/2019 & CM APPL. 2369/2021,
W.P.(C) 12348/2019 & CM APPLs. 27116/2020, 2316/2021,
W.P.(C) 12957/2019 & CM APPL. 18219/2020,
W.P.(C) 13293/2019 & CM APPL. 18210/2020,
W.P.(C) 13307/2019 & CM APPLs. 28148/2020, 1919/2021,
W.P.(C) 13319/2019 & CM APPL. 18213/2020,
W.P.(C) 13440/2019 & CM APPLs. 18225/2020, 25303-
25304/2020,
W.P.(C) 13442/2019 & CM APPLs. 18318/2020, 25378-
25379/2020,
W.P.(C) 13659/2019 & CM APPLs. 19848-19849/2020,
Signature Not Verified
Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
23:18:05 W.P.(C) 175/2021 & Connected Matters Page 2 of 38
W.P.(C) 13834/2019, W.P.(C) 13924/2019,
W.P.(C) 13963/2019 & CM APPLs. 55847/2019, 23627/2020,
W.P.(C) 6795/2020, W.P.(C) 7331/2020 & CM APPLs. 24645-
47/2020.
Appearances:-
For the Petitioners:-
Mr. Sanjay Sharawat, Advocate.
Mr. R.K. Ruhil and Mr. Sumit Bishnoi, Advocates.
Mr. Mayank Manish and Mr. Ravi Kant, Advocates.
Mr. Abhishek Singh and Ms. Madavaram Priyanka, Advocates.
Mr. Shivam Singh, Advocate with Mr. Sahil Raveen, Mr. Jaideep
Khanna, Mr. Vidur Dwivedi, Mr. Harpreet Singh Gupta and Mr.
Harsh Choudhary, Advocates.
Mr. Chandrashekhar Singh, Advocate.
Mr. Amitesh Kumar, Ms. Priti Kumari and Ms. Binisa Mohanty,
Advocates.
Mr. Laksh Khanna, Mr. Mehul M. Gupta and Ms. Smriti Maheshwari,
Advocates.
For the Respondents:-
Mr. Maninder Singh, Senior Advocate with Mr. Zoheb Hossain,
Mr.Prabhas Bajaj, Mr. Vivek Gurnani and Mr. Piyush Goyal,
Advocates for Pharmacy Council of India.
Mr. Ram Niwas Buri & Mr. Rishabh Sharma, Advocates for
impleaded R3 in W.P.(C) 10972/2019 & W.P.(C) 12348/2019.
%
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
JUDGMENT
1. This batch of 88 writ petitions is directed against
communications dated 17.07.2019 and 09.09.2019 addressed by the
Signature Not Verified
Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
respondent/ Pharmacy Council of India [hereinafter, "PCI"] to State
Governments and Union Territory Administrations.1 By the impugned
letter dated 17.07.2019, the PCI communicated a decision taken at its
meeting held on 09/10.04.2019 to impose a moratorium on the
opening of new pharmacy colleges for a period of five years with
effect from the academic year 2020-21. The letter dated 09.09.2019
conveyed the resolution taken at the meeting held on 05/06.08.2019,
providing certain exemptions to the aforesaid moratorium.
Facts
2. The writ petitions proceed on a substantially similar factual
basis. The petitioners claim to be desirous of establishing pharmacy
colleges, for which they require prior approval of the PCI. It is stated
that the petitioners procured land and physical infrastructure required
prior to submission of their applications. In the normal course, they
would have been required to submit applications for establishment of
colleges in the year 2020-21 in October/ November of the preceding
year. However, their applications could not be submitted due to the
impugned decision of the PCI.
3. In the present batch of petitions, the extent of investment in land
and infrastructure has not been clearly elaborated, except for a
statement in one of the writ petitions2 to the effect that the petitioner's
investment amounts to ₹2.5 crores, including a building of
approximately 15,000 sq. ft.
The same communications have also been challenged in approximately 2500 other writ petitions,
in which orders will be passed separately.
W.P.(C) 10972/2019
Signature Not Verified
Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
Impugned communications of the PCI
4. Before adverting to the contentions of the parties, it is necessary
to appreciate the scope and effect of the impugned communications. In
the letter dated 17.07.2019, the PCI noted that establishment of six
different courses of varying durations were being approved by it under
Section 12 of the Pharmacy Act, 1948 [hereinafter, "the Act"], and
thereafter adverted to the decision taken in the meeting of
09/10.04.2019, to place a moratorium on establishment of new
pharmacy colleges. The relevant extracts of the communication dated
17.07.2019 read as follows:-
" xxxx xxxx xxxx
th
During the 106 Central Council meeting of the PCI held
on 9th& 10th April, 2019, a concern was expressed about
the mushrooming of pharmacy colleges in the country.
The issue was threadbarely deliberated. It was noted
that-
a) There are approximately 1,985 D.Pharm and 1,439
B.Pharm institutes in the country. The annual intake of
students in these institutes (both D.Pharm and B.Pharm)
is 2,19,279.
b) This available workforce is enough to meet the
current pharmacist-to-population needs of the country.
c) The rapid increase in the number of pharmacy
colleges over the last decade may result in shortage of
trained and qualified teaching faculty which may affect
the quality of education imparted to students.
d) The pass out students are not getting reasonably paid
job opportunities in public as well as in private sector.
Considering the above facts, the House passed the
following resolution unanimously:-
Signature Not Verified
Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
RESOLUTION
"Taking into consideration the availability of sufficient
qualified pharmacist work force, the House unanimously
resolved to put a moratorium on the opening of new
pharmacy colleges for running Diploma as well as
Degree course in pharmacy for a period of five years
beginning from the academic year 2020-2021. This
moratorium shall not be applicable in the North Eastern
region of the country where there is a shortage of
pharmacy colleges."
The said Resolution has been communicated to Ministry
of Health and Family Welfare, Government of India on
17.7.2019 for information under intimation to All India
Council for Technical Education (AICTE) and also
posted on the Council's website."3
5. The communication dated 09.09.2019 was stated to be in
continuation of the earlier communication dated 17.07.2019, and
pursuant to representations received by the PCI for clarification of the
moratorium imposed. It granted certain exemptions from the
moratorium. The PCI, in the communication dated 09.09.2019, stated
as follows:-
" xxxx xxxx xxxx
The matter was placed before the 107th Central Council
in its meeting held on the 5th& 6th August, 2019 which
noted that the spirit of the moratorium is to ensure-
• quality assurance in pharmacy education.
•availability of job opportunities to already
available pharmacist workforce which is enough to
meet the current pharmacist-to-population needs of
the country as there are approximately 1,985
D.Pharm and 1,439 B.Pharm institutes in the
country with an annual intake of more than 2.19
lakhs,
Emphasis supplied.
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Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
• that there is no shortage of qualified faculty.
It was unanimously decided that moratorium on the
opening of new pharmacy colleges for running Diploma
as well as Degree course in pharmacy for a period of
five years beginning from the academic year 2020-2021
will be subject to following conditions -
a) The moratorium will not apply to the
Government institutions.
b) The moratorium will not apply to the
institutions in North Eastern region.
c) The moratorium will not apply to the States /
Union Territories where the number of D.Pharm
and B.Pharm institutions (both combined) is less
than 50.
d) 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.
e) 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)."4
6. The objectives of the moratorium, as stated in these decisions,
was to ensure that the pharmacists-to-population ratio in the country
does not exceed a level where job opportunities are not available to
trained pharmacists, to ensure the maintenance of quality education in
the field and to prevent a shortage of qualified faculty consequent
upon increase in the number of colleges. It is with these objectives in
mind that the moratorium was imposed, however, with certain
Emphasis supplied.
Signature Not Verified
Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
exemptions, as enumerated in the communication dated 09.09.2019,
extracted above.
Relevant provisions of the Pharmacy Act, 1948
7. The relevant sections of the Act are set out below:-
"THE PHARMACY ACT, 1948
xxxx xxxx xxxx
An Act to regulate the profession of pharmacy.
WHEREAS it is expedient to make better provision for
the regulation of the profession and practice of
pharmacy and for that purpose to constitute Pharmacy
Councils;
xxxx xxxx xxxx
3. Constitution and composition of Central
Council.-The Central Government shall, as soon as may
be, constitute a Central Council consisting of the
following members, namely:-
(a) six members, among whom there shall be at least
one teacher of each of the subjects, pharmaceutical
chemistry, pharmacy, pharmacology and pharmacognosy
elected by the University Grants Commission from
among persons on the teaching staff of an Indian
University or a College affiliated thereto which grants a
degree or diploma in pharmacy;
(b) six members, of whom at least four shall be person
possessing a degree or diploma in, and practising
pharmacy or pharmaceutical chemistry, nominated by the
Central Government;
(c) one member elected from amongst themselves by
the members of the Medical Council of India;
(d) the Director General, Health Services, ex officio or
if he is unable to attend any meeting, a person authorised
by him in writing to do so;
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Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
(dd) The Drugs Controller, India, ex officio or if he is
unable to attend any meeting, a person authorised by him
writing to do so;
(e) the Director of the Central Drugs Laboratory, ex
officio;
(f) a representative of the University Grants
Commission and a representative of the All India Council
for Technical Education;
(g) one member to represent each State elected from
amongst themselves by the members of each State
Council, who shall be a registered pharmacist;
(h) one member to represent each State nominated by
the State Government, who shall be a registered
pharmacist.
Provided that for five years from the date on which
the Pharmacy (Amendment) Act, 1976 (70 of 1976),
comes into force the Government of each Union territory
shall, instead of electing a member under clause (g),
nominate one member, being a person eligible for
registration under section 31, to represent that territory.
xxxx xxxx xxxx
10. Education Regulations.- (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 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;
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Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
(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 sub-section (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 the
Central Council such amendments thereof as it may think
fit.
11. Application of Education Regulations to States.-
At any time after the constitution of the State Council
under Chapter III and after consultation with the State
Council, the State Government may, by notification in the
Official Gazette, declare that the Education Regulations
shall take effect in the State:
Provided that where no such declaration has been
made, the Education Regulations shall take effect in the
State on the expiry of three years from the date of the
constitution of the State Council.
12. Approved course of study and examinations.- (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
Signature Not Verified
Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
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.
xxxx xxxx xxxx
18. Power to make regulations.- (1) The Central
Council may, with the approval of the Central
Government, by notification in the Official Gazette,
make regulations consist with this Act to carry out the
purposes of this Chapter.
xxxx xxxx xxxx
(4) Every regulation made under this Act, shall be laid,
as soon as may be after it is made, before each House of
Parliament, while it is in session, for a total period of
thirty days which may be comprised in one session or in
two or more successive sessions, and if, before the expiry
of the session immediately following the session or the
successive sessions aforesaid, both the Houses agree in
making any modification in the regulation or both Houses
agree that the regulation should not be made, the
regulation shall thereafter have effect only in such
modified form or be of no effect, as the case may be; so,
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Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
however, that any such modification or annulment shall
be without prejudice to the validity of anything previously
done under that regulation."5
8. In exercise of the power conferred under Section 10 of the Act,
the PCI has made the PCI Education Regulations, 1991. The said
Regulations contain detailed provisions regarding the qualification of
pharmacists, the various approved courses of study, etc. The contents
of the said Regulations are, however, not relevant for the adjudication
of the present dispute.
Summary of submissions of learned counsel for the parties
9. Mr. Sanjay Sharawat, learned counsel appearing for the
petitioners in several of these writ petitions, led the arguments on
behalf of the petitioners. His arguments were supplemented by Mr.
Shivam Singh, learned counsel appearing for the petitioners in
W.P.(C) 252/2021 and other petitions. Other learned counsel for the
petitioners adopted Mr. Sharawat's submissions. Mr. Maninder Singh,
learned Senior Counsel, and Mr. Zoheb Hossain, learned counsel,
made submissions on behalf of the PCI.
10. Learned counsel for the parties have referred to the voluminous
record and have also cited various judgments in support of their
contentions. The propositions advanced on each side are summarised
here, and will be elaborated, with reference to the necessary
documents and authorities, later in this judgment.6
Emphasis supplied.
Although several judgments on each point have been placed in compilations filed by learned
counsel for the parties, it was made clear during the course of hearing that, only those authorities
cited during oral arguments would be considered.
Signature Not Verified
Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
11. The arguments of the petitioners can be summarized under the
following heads:-
a) The right to establish an educational institution is a fundamental
right guaranteed by Article 19(1)(g) of the Constitution of India.
b) Such a right cannot be abridged or abrogated, except in
compliance with Article 19(6) of the Constitution.
c) The impugned decisions of the PCI are, at best, in the nature of
an executive action, and do not constitute 'law' within the
meaning of Article 19(6) read with Article 13 of the
Constitution.
d) The impugned communications, being policy decisions of the
PCI, are ultra vires the statutory powers of the PCI and cannot
be traced to any authority conferred upon it by statute.
e) The basis upon which the PCI has come to the conclusion that a
moratorium is required is unsupported by any reasonable factual
foundation.
f) The impugned decisions do not satisfy the tests of
reasonableness and proportionality, which must attach to any
decision of state authorities, more particularly, one which
concerns the exercise of citizens' fundamental rights.
g) The exemptions provided in the impugned decisions fail the
constitutional test of classification, as they are based neither
upon intelligible differentia, nor bear any rational nexus with
the avowed objective of the decision.
h) A judgment of a learned Single Judge of the Karnataka High
Court in Shifa College of Pharmacy & Anr. vs. Pharmacy
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Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
Council of India & Ors.7 was also placed, whereby the learned
Single Judge has quashed the impugned communications of the
PCI dated 17.07.2019 and 09.09.2019. CM APPL. No.
41337/2021 was filed by the petitioner in W.P.(C) 175/2021,
after judgment was reserved, to place on record the judgment of
a Division Bench of the Karnataka High Court dated 09.11.2021
in W.A. No. 746/20208 by which the appeal of the PCI against
the aforesaid judgment was dismissed. Against the view taken
by the Karnataka High Court, PCI has filed Special Leave
Petition (C) No. 19671/2021, in which the Supreme Court
issued notice on 17.12.2021.
12. The arguments of the PCI were on the following lines:-
a) The petitioners have not made out any factual basis for the
reliefs sought.
b) The moratorium is referrable to the power of the PCI to
"regulate" the pharmacy sector, which is conferred by the Act,
and therefore constitutes "law" within the meaning of Article 13
of the Constitution.
c) The impugned moratorium is not a prohibition, but in the nature
of a temporary suspension, which is contemplated within the
power to regulate.
d) The primacy of the PCI in regulation of pharmacy has been
established by the judgment of the Supreme Court in Pharmacy
Judgment dated 19.11.2020 in W.P.(C) 52314/2019 and connected matters.
Pharmacy Council of India vs. Rajeev College of Pharmacy & Ors.
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Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
Council of India vs. Dr. S.K. Toshniwal Educational Trusts
Vidarbha Institute of Pharmacy & Ors.9.
e) In a statutory scheme, where an expert regulator has been
established, particularly one dealing with human health, the
views of the regulator are determinative, even when power vests
in the Union of India [hereinafter, "the UoI"].
f) The decisions of the PCI have been duly communicated to the
UoI as well as to all State Governments, and no objections have
been raised thereto. In fact, the composition of the PCI itself
includes representatives of all relevant authorities, including the
UoI and State Governments.
g) The moratorium is supported by ample empirical data, which
has been considered by the expert regulator, and has not been
challenged. It has been imposed keeping in mind the statutory
obligation of the PCI to ensure minimum standards.
h) Each of the exemptions notified in the communication dated
09.09.2019 is based upon a reasonable classification which
bears a nexus with the objectives of the PCI.
i) The PCI is undertaking a regular review of the moratorium, and
is duty-bound to make such adjustments from time to time as it
considers necessary.
Litigation history
13. During the pendency of some of these writ petitions, interim
orders were passed with regard to the petitioners' applications for
(2021) 10 SCC 657
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Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
approval. In several other petitions, no ad interim orders were passed.
The matters were taken to the Division Bench, which disposed of the
appeals by a judgment dated 22.12.202010. In the appeals before the
Division Bench, the petitioners/appellants had been granted
permission to file their applications for approval with the PCI, but no
final decision was to be rendered. In the meantime, the petitioners
sought further direction for the PCI to take a final decision and to
grant approval for admitting students in the academic session 2020-21.
The decision of the learned Single Judge to decline such relief was
affirmed by the Division Bench. However, the Division Bench
directed expeditious hearing of the writ petitions and appropriate
moulding of interim relief.
14. Although the hearing of the writ petitions commenced in
January, 2021, unfortunately, they could not be disposed of within the
desired time, owing to some delays due to the COVID-19 pandemic
and the heavy board of the Court.
15. In the meanwhile, the petitioners filed CM APPL. No.
16660/2021 and CM APPL. No. 41337/2021 for certain directions in
respect of admissions for the years 2021-22 and 2022-23 respectively.
Those applications were disposed of by orders dated 24.05.2021 and
23.12.2021 respectively. In the order dated 24.05.2021, it was
observed that appropriate reliefs would be considered at the stage of
disposal of the petitions, rather than by way of an interim order.
Further interim relief was also declined by the order dated 23.12.2021.
In LPA 317/2020 (Jagannath Institute of Pharmacy vs. Pharmacy Council of India & Anr.) and
connected matters.
Signature Not Verified
Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
It may be noted that the petitioners also placed on record an order
dated 09.12.2021 passed by the Chhattisgarh High Court in W.P. (C)
3766/202111 wherein the Division Bench decision of the Karnataka
High Court dated 09.11.2021 has been relied upon to permit the
petitioner therein to submit the application for admission for academic
year 2022-23.12
16. During the pendency of the petition, the PCI has also conducted
a review of the moratorium, and an additional affidavit has been
placed before the Court alongwith a report of a sub-committee
constituted for the purpose.
Analysis
A. Requirement of framing Regulations - the decision in
Krupanidhi
17. At the very outset, it may be noted that by the impugned
decision dated 17.07.2019, the PCI has placed an embargo "on the
opening of new pharmacy colleges for running diploma as well as
degree courses in pharmacy" for a period of five years. The resolution
of the PCI is thus, directed against the establishment of new pharmacy
colleges for the reasons enumerated in the resolution. The second
impugned communication, dated 09.09.2019, makes the moratorium
subject to various exemptions.
Chouksey College of Pharmacy & Anr. vs. Pharmacy Council of India & Ors.
It had been submitted on behalf of the PCI that a Special Leave Petition had been filed against
the order dated 09.12.2021. During the course of preparation of this judgment, I find that by an
order dated 07.02.2022 in Special Leave Petition (Civil) No. 1050/2022 [Pharmacy Council of
India vs. Chouksey College of Pharmacy & Ors.], the Supreme Court has stayed the operation of
the order of the Chhattisgarh High Court dated 09.12.2021.
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18. It is in this context that the legality of the actions of the PCI
must be considered, bearing in mind that the decision is by way of an
executive act, and not by way of a statutory provision or the
formulation of any Regulations under Sections 10 or 18 of the Act.
19. A Division Bench of this Court in Krupanidhi Education Trust
(Regd.) And Anr. vs. The Secretary, Pharmacy Council of India and
Ors.13 had occasion to consider the powers of the PCI to make a policy
decision, as opposed to framing Regulations under Section 10 of the
Act. The PCI had decided to disallow any increase in the number of
seats in a pharmacy college, by way of a general policy decision dated
12.12.1989. The petitioner-institution, which had permission to
conduct its course with an intake of 60 students, had applied to
increase the strength to 120 students. The PCI rejected the request on
the basis of its "policy decision".
20. The Division Bench noted the provisions of Sections 10 and 12
of the Act, as well as the Education Regulations, 1981 and came to the
conclusion that such a policy decision would have to form part of the
Education Regulations, with compliance of the requirements of
Section 10 of the Act. Therefore, even while rejecting the petitioner's
contention that the PCI has no power to prescribe the number of seats
in an approved course, the Division Bench held as follows:-
"10. 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
AIR 1992 Delhi 238
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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
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pharmacy so long the conditions prescribed in
Appendix-B of the Regulations are not fulfilled. 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(1) of the Act fulfils all the conditions laid by
the Act and the Education Regulations.
11. 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 as 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."14
21. I am of the view that the aforesaid judgment, inasmuch as it
holds that the PCI cannot control increase in the number of seats by
way of an executive decision de hors the Education Regulations,
Emphasis supplied.
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would apply a fortiori to the impugned communication, whereby an
absolute embargo has been placed upon the establishment of new
colleges/courses.
22. Mr. Singh distinguished the judgment of this Court in
Krupanidhi15 on the ground that the policy decision of the PCI in that
case was not approved by the UoI. He referred to the communications
exchanged between the PCI and UoI in the present case to argue that
the decision of the PCI has, in fact, been approved by the UoI. In
support of this contention, Mr. Singh submitted that the Division
Bench of this Court in Dr. N. K. Garg & Ors. vs. I.I.T. Delhi & Ors.16
has held that the exercise of power by a statutory authority, of which
the UoI is fully aware, is sufficient to vest the decision with the
authority of the UoI itself. According to Mr. Singh, once the decision
is taken and approved, it in fact partakes the character of subordinate
legislation, the emphasis being on substance and not on form. Mr.
Singh emphasised that the Division Bench in Krupanidhi expressly
held that it was not going into the question whether the PCI could take
a policy decision at all. In the alternative, Mr. Singh submitted that the
decision in Krupanidhi is no longer good law, in view of the decision
of the Supreme Court in J.N. Medical College, Belgaum vs. Medical
Council of India & Ors.17.
23. I am unable to agree with the aforesaid contentions of Mr.
Singh. Taking the last contention first, the decision of the Supreme
Supra (note 13)
1995 SCC OnLine Del 626 : (1995) 35 DRJ 218 : (1995) 60 DLT 214 (DB)
(2010) 15 SCC 801
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Court in J.N. Medical College, Belgaum18 was concerned with a
challenge to a decision of the Medical Council of India [hereinafter,
"MCI"] to permit the appellant therein to increase its intake capacity
to 150, instead of 200 as sought by it. Section 10-A of the MCI Act,
195619 was considered by the Court to vest the MCI with the power to
regulate the admission capacity of the college. A similar power -
whether relating to admission capacity or the imposition of a
moratorium - is not found in the Act for the field of pharmacy.
Consequently, the decision in Krupanidhi20 correlating such power, if
at all, to the Regulations framed under Section 10 of the Act, cannot
be held to be impliedly overruled by the decision in J.N. Medical
College, Belgaum.
24. With regard to Mr. Singh's submission that Krupanidhi21 turns
upon the non-approval of the policy decision in that case by the UoI, I
find that Krupanidhi adverts to the question of approval by UoI
because it is one of the requirements of Section 10 of the Act. It is in
this context that the Court laid emphasis upon the fact that the
decision had not been approved by the UoI. In the present case, even if
the impugned decision of the PCI is held to be approved by the UoI as
required by Section 10(1) of the Act, the requirements of Section
10(3) [inviting comments of State Governments], Section 10(4)
[publication in the Official Gazette] and Section 18(4) [laying of the
Regulations before Parliament] have admittedly not been fulfilled. The
Supra (note 17)
Introduced by way of The Indian Medical Council (Amendment) Act, 1993.
Supra (note 13)
Supra (note 13)
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Division Bench in Krupanidhi has specifically held that the policy
decision in question would have to form part of the Education
Regulations, and necessary compliance with the requirements of
Section 10 of the Act is therefore required in the present case also.
25. Mr. Singh also relied upon a judgment of the Division Bench of
the Bombay High Court (Aurangabad Bench) in Sayali Charitable
Trust's College of Pharmacy vs. Pharmacy Council of India22. The
Bombay High Court was considering a challenge to fixation of the
intake capacity in Diploma of Pharmacy courses by a decision of the
PCI. The Court has referred to justifications analogous to those
advanced in the present case23, and also to the moratorium, which is
the subject matter of the present petitions. The Bombay High Court,
however, dismissed the writ petitions on the basis that the policy
decision of the PCI to fix the number of seats cannot be interfered
with.24 It may be mentioned that although the judgment of the
Division Bench in Krupanidhi25 was cited before the Bombay High
Court, it has not been adverted to in the discussion. It appears to me
that the view taken by the Bombay High Court is, in fact, at variance
with the ratio of Krupanidhi. Krupanidhi, being a Division Bench
judgment of this Court, is binding upon me. I am therefore
respectfully unable to follow the view taken in Sayali Charitable
Trust's College of Pharmacy.
W.P.(C) 4919/2020 and connected matters, decided on 06.11.2020.
Ibid., paragraph 9
Ibid., paragraphs 16 to 18
Supra (note 13)
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26. A statutory body must trace the source of its power to a
statutory provision. It has no general or inherent powers which enable
it to exercise plenary jurisdiction. This position is made clear by the
judgments of the Supreme Court in Shrimati Hira Devi & Ors. vs.
District Board, Shahjahanpur26 and Ramchandra Keshav Adke (Dead)
by LRs & Ors. vs. Govind Joti Chavare & Ors27.
27. In Ramchandra Keshav Adke28, the Supreme Court cited the
rule in Taylor vs. Taylor29 and observed that where a power is given to
do a thing in a particular manner, it must be done in that manner or not
at all. In addition to his reliance upon Krupanidhi30, Mr. Sharawat
relied upon this proposition to argue that, even in the event the PCI is
held to be vested with the power to restrict the establishment of
educational institutions altogether, that power must be exercised only
by framing Regulations under Section 10 of the Act. A clear
enunciation of this principle is found in Chief Settlement
Commissioner, Punjab & Ors. vs. Om Parkash & Ors.31. The
aforesaid judgment was also relied upon by the Division Bench of this
Court in Birla Higher Secondary School vs. Lt. Governor Delhi &
Ors.32 wherein the Court held that, notwithstanding the wide powers
vested in the Director of Education under the Delhi Education Code,
(1952) SCR 1122, at 1130
(1975) 1 SCC 559, paragraph 25
Supra (note 27)
(1876) 1 Ch D 426, followed by the Privy Council in Nazir Ahmad vs. The King-Emperor AIR
1936 PC 253 : LR 63 IA 372 and the Supreme Court in several later judgments.
Supra (note 13)
(1968) 3 SCR 655, at 660-661
ILR (1973) 1 Del 634 : 1972 SCC OnLine Del 291 (C.W. No. 562/1972, decided on 08.12.1972)
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1965, the Director was not empowered to direct reinstatement of a
teacher in a particular school.
28. Particularly in cases where restrictions on fundamental rights
are sought to be imposed, the statutory mandate must be clear. I do not
find any clear power to be conferred by the Act upon the PCI to
impose the moratorium by way of a policy decision, unsupported by
any authority under the Education Regulations.
B. Restriction on a fundamental right under Article 19(1)(g)
29. Further, the right to establish an educational institution has been
held by the Supreme Court to be a fundamental right under Article
19(1)(g) of the Constitution. The 11-Judge Bench in T.M.A. Pai
Foundation & Ors. vs. State of Karnataka & Ors.33 clearly holds to
this effect. The same view has been taken in the subsequent decisions
in Islamic Academy of Education & Anr. vs. State of Karnataka &
Ors.34 and P.A Inamdar & Ors. vs. State of Maharashtra & Ors.35.
Quite apart from the issue with regard to Section 10 of the Act,
therefore, a further question arises as to whether an executive action
can impose a moratorium on the very establishment of institutions.
30. In Modern School vs. Union of India & Ors.36, the Supreme
Court held that any control or regulation over education or educational
institutions must be imposed only by a legislative act, and not by
executive instructions. This follows from the provisions of Article
19(6) of the Constitution, which permits reasonable restrictions on the
(2002) 8 SCC 481, paragraphs 18 to 25 of the judgment of six learned Judges, per Kirpal CJ.
(2003) 6 SCC 697, paragraph 120
(2005) 6 SCC 537, paragraph 92
(2004) 5 SCC 583, paragraph 41
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exercise of Article 19(1)(g) rights by virtue of "any law" made by the
State relating to the matters described therein. This position was
further elaborated, also in the context of establishment and
management of educational institutions, in State of Bihar & Ors. vs.
Project Uchcha Vidya, Sikshak Sangh & Ors.37 which held as
follows:-
"69. The right to manage an institution is also a right to
property. In view of a decision of an eleven-Judge Bench
of this Court in T.M.A. Pai Foundation v. State of
Karnataka [(2002) 8 SCC 481] establishment and
management of an educational institution has been held
to be a part of fundamental right being a right of
occupation as envisaged under Article 19(1)(g) of the
Constitution. A citizen cannot be deprived of the said
right except in accordance with law. The requirement of
law for the purpose of clause (6) of Article 19 of the
Constitution can by no stretch of imagination be
achieved by issuing a circular or a policy decision in
terms of Article 162 of the Constitution or otherwise.
Such a law, it is trite, must be one enacted by the
legislature."38
31. This position has also been considered by a coordinate bench of
this Court in Forum for Promotion of Quality Education for All,
Action Committee, Unaided Recognized Private Schools vs. Lt.
Governor of Delhi & Ors.39 where the Court has held as follows:-
"65. It is an equally well settled proposition of law that
no citizen can be deprived of his fundamental right
guaranteed under Article 19(1) of the Constitution in
pursuance to an executive action without any authority
(2006) 2 SCC 545
Emphasis supplied.
216 (2015) DLT 80
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of law. If any executive action operates to the prejudice
of any person, it must be supported by legislative
authority, i.e., a specific statutory provision or rule of
law must authorise such an action. Executive
instruction in the form of an administrative order
unsupported by any statutory provision is not a
justifiable restriction on fundamental rights.
xxxx xxxx xxxx
70. Consequently, this Court is of the opinion that Article
19(6) of the Constitution postulates and contemplates
restriction on a fundamental right by way of a law and
not by an administrative action in the form of an order or
a circular or a notification without any authority of
law."40
32. Mr. Singh did not dispute the applicability of the aforesaid
propositions, but contended that the PCI is clothed with power under
the Act to impose the impugned moratorium. He submitted in this
context that the preamble of the Act provides for "regulation of the
profession and practice of pharmacy", and traced the power to
institute a moratorium to the aforesaid objective of "regulation",
which can be exercised by means of a policy decision.41
33. Mr. Sharawat, on the other hand, cited the decision of the
Supreme Court in Laurel Energetics Private Ltd. vs. Securities and
Exchange Board of India42 to argue that the objectives of the
legislation, as enumerated in Statement of Objects and Reasons,
cannot control the meaning assigned to its substantive provisions,
Emphasis supplied.
Whether or not the impugned decisions of the PCI can be justified on the basis of a power
conferred upon UoI is dealt with later in this judgment.
(2017) 8 SCC 541 [paragraphs 24 and 25]
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although they may be used as an aid to interpretation in cases of
ambiguity.
34. The Statement of Objects and Reasons of the Act is reproduced
below:-
"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
approve courses of study and examinations for
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."
35. I am unable to agree with Mr. Singh that the PCI can claim the
authority to issue the impugned communications based upon the
Statement of Objects and Reasons, or the Preamble to the Act. Such a
reading would clothe the PCI with a general power to regulate the
profession, and the establishment of educational institutions, unlimited
by the substantive provisions of the statute.
36. The Statement of Objects and Reasons extracted above also
does not indicate the width of power which the PCI claims and in any
event, cannot control the meaning of clear substantive provisions, such
as Sections 10 and 18 of the Act, which confer regulation making
power upon the PCI.
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37. In the case of the preamble to the statute, which uses the word
"regulate", the position is similar. The preamble cannot be interpreted
to read such a power into the Act, but only to aid in the resolution of
any ambiguity in construction. Reference may be made in this
connection to the judgments of the Supreme Court in Tribhuban
Parkash Nayyar vs. Union of India43, Union of India vs. Elphinstone
Spinning and Weaving Co. Ltd. & Ors.44 and Maharishi Mahesh Yogi
Vedic Vishwavidyalaya vs. State of Madhya Pradesh & Ors.45.
C. Are the impugned communications justified on the basis of
approval by the UoI?
38. Mr. Singh further submitted that the facts of this case, showing
the approval of the decisions of the PCI by the UoI rendered the
decisions, for all practical purposes, those of the UoI. He argued,
relying upon the decision in Dr. N. K. Garg46 that exercise of a power
vested in the UoI by the PCI is sufficient; so long as the UoI had
knowledge of the decision taken by the PCI, this would tantamount to
ratification of the same. Mr. Singh submitted that the impugned
communications would come within the executive authority of the
UoI, co-extensive with its legislative competence under Article 73 of
the Constitution. For this purpose, he referred to the correspondence
between the PCI and the UoI dated 26.09.2019 and 05.03.2021 to
demonstrate that the UoI, apart from being represented in the
composition of the PCI, was also kept informed of the decisions made
(1969) 3 SCC 99, paragraph 6
(2001) 4 SCC 139 at 164, paragraph 17
(2013) 15 SCC 677, paragraphs 87 to 88
Supra (note 16)
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and accepted the same. Mr. Singh relied upon the decision of the
Supreme Court in Rai Sahib Ram Jawaya Kapur & Ors. vs. The State
of Punjab47 to submit that the executive power of the government
must be read in the same amplitude as its legislative powers.
39. While the above proposition is unexceptionable, the Court in
Ram Jawaya Kapur48 was not concerned with a case of an alleged
infringement of fundamental rights. That an encroachment upon
private rights would require a specific legislation to be adopted is, in
fact, expressly acknowledged in Ram Jawaya Kapur49. The
observations of the Court also make it clear that the assertion of
fundamental rights by the petitioners in that case was rejected by the
Supreme Court.50
40. The matter was considered in this perspective in Project
Uchcha Vidya51. The Supreme Court clarified, relying upon the
judgment in State of Madhya Pradesh & Anr. vs. Thakur Bhagat
Singh52, that executive action which was not supported by legislation
did not operate to the prejudice of any citizen. In the present case, as
the petitioners' fundamental rights under Article 19(1)(g) are
implicated by the impugned decisions, Mr. Singh's argument cannot
be accepted.
(1955) 2 SCR 225 : AIR 1955 SC 549
Supra (note 47)
Ibid., paragraph 17
Ibid., paragraphs 19 to 21
Supra (note 37) [paragraph 71]
(1967) 2 SCR 454 : AIR 1967 SC 1170
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D. Whether the wide powers of the PCI must include power to
regulate widespread "mushrooming" of pharmacy colleges?
41. Mr. Singh next submitted that the actions of the PCI were
motivated by its responsibility to regulate the standard of education
and the conduct of the profession. He drew my attention to the
concern expressed by the Supreme Court with regard to the
"mushrooming" of educational institutions and the concomitant
responsibilities of regulatory bodies to ensure that requisite standards
are maintained, both in the educational institutions and in the practice
of the profession (See: J.N. Medical College, Belgaum53 and
Jawaharlal Nehru Technological University Registrar vs. Sangam
Laxmi Bai Vidyapeet and Ors.54). Mr. Singh referred to the
composition of the PCI under Section 3 of the Act, which
contemplates representation of teachers and practicing pharmacists, as
well as representatives of the MCI, the Director General of Health
Services and other statutory bodies. According to Mr. Singh, an
executive decision taken by a broad-based and knowledgeable body
vested with statutory regulatory powers cannot be interdicted by the
Court on the grounds urged. He relied upon the judgments of the
Supreme Court in Medical Council of India vs. State of Karnataka &
Ors55, Ashok Kumar Das & Ors. vs. University of Burdwan & Ors.56,
J.N. Medical College, Belgaum and Dr. S.K. Toshniwal57, in support
Supra (note 17)
(2019) 17 SCC 729
(1998) 6 SCC 131
(2010) 3 SCC 616
Supra (note 9)
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of the contention that such regulatory bodies possess wide powers to
control the standard of education in the concerned disciplines. Mr.
Singh contended that, particularly where human health is implicated,
the Court should defer to the views of the expert regulator.
42. Even while accepting the wide powers of the PCI as laid down
in the aforesaid judgments, it bears emphasis that the power must be
exercised in a manner consistent with the statutory scheme. As held
above, in the context of educational institutions, Modern School58 and
Project Uchcha Vidya59 make it clear that the restriction on the
fundamental right to establish and administer an institution by way of
an executive order is impermissible. The decision of the Division
Bench in Krupanidhi60 - which concerns the powers of the PCI itself -
also indicates that no such action can be taken by way of an executive
policy decision.
43. Considerable emphasis was laid by Mr. Singh upon the
judgment in Jawaharlal Nehru Technological University61. In that
case, a decision taken by the State of Telangana to request the
concerned regulator62 to declare "a holiday" on the establishment of
new technical institutions was challenged. The Supreme Court
reversed the judgment of the High Court, by which the aforesaid
policy decision was set aside at the instance of the petitioner, which
wished to establish a new course in Pharmacy. The Court held that the
Supra (note 36)
Supra (note 37)
Supra (note 13)
Supra (note 54)
The All India Council for Technical Education
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decision of the State Government was based upon a survey and
supported by data, and disapproved the reasoning of the High Court
that existence of vacancies in educational institutions cannot justify
such a decision. However, it is clear from the decision of the Supreme
Court that the policy decision of the State in that case was traceable to
a specific power granted under Section 20(1) of the Telangana
Education Act, 1982. Section 20(1) provides for a survey to be
conducted to identify the educational needs of the locality, and Section
20(3) requires the authority to be satisfied that there is a need for
providing such educational facilities in the concerned locality. These
provisions have been specifically adverted to in paragraphs 14 and 15
of the judgment. In the absence of a corresponding statutory scheme
supporting the impugned decisions of the PCI in the present case, the
judgment in Jawaharlal Nehru Technological University is not
dispositive of the present matter.
E. Judgment of the Karnataka High Court
44. As noted above, the impugned order has also been considered
by the Division Bench of the Karnataka High Court63. The Division
Bench has affirmed the judgment of the learned Single Judge64 with
the following observations:-
"17. Thus, from perusal of Section 10 & 12 of the Act, it
is evident that functions of the PCI have been clearly
provided under the Act. The resolution dated 17.07.2019
was passed to put a moratorium on opening of new
pharmacy college for running diploma and degree
courses in pharmacy for a period of five years beginning
WA No. 746/2020, decision dated 09.11.2021.
W.P No. 52868/2019, decision dated 19.11.2020.
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from academic year 2020-21. By impugned resolutions,
the PCI has suspended the operation of Section 12 of the
Act insofar as it pertains to approved courses of study
and the examinations for a period of five years. Such a
course of action to put a statutory provision into
suspension animation for a period of five years by way of
executive fiat is not permissible in law.
18. The contention that the resolution has been passed
with a view to ensure quality of education is not worthy
of acceptance as detailed and exhaustive guidelines have
been prescribed by Section 10 of the Act as well as the
regulations framed to ensure the quality of education.
19. Even assuming that though PCI may have the power
to take a decision, dehors the provisions of the Act and
the Education Regulations, the same cannot be sustained
as it is violative of principles of audi alteram partem. Any
administrative decision has to be taken after giving an
opportunity of hearing to the aforesaid persons, in the
instant case, admittedly, no such opportunity of hearing
was afforded. Therefore, on this ground also the
impugned resolution cannot be sustained.
xxxx xxxx xxxx
21. A statute is the manifestation of legislative intent. It is
the positive declaration of law by the legislative in
exercise of legislative functions, as distinguished from
executive and judicial functions. The law duly enacted by
the legislature in respect of subject matter to which it
relates, operates until modified by legislature. The
provisions of a statute can be modified or put in
suspended animation by the Legislature alone and not by
an Executive fiat."
The Karnataka High Court also held that the judgments in Dr. S.K.
Toshniwal65 and Jawaharlal Nehru Technological University66, which
Supra (note 9)
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have also been cited before me, are not applicable to the case. For the
reasons stated above, I respectfully concur with the conclusions
reached by the Karnataka High Court.
F. Post-script
45. Having come to the conclusion in the present case that the
exercise of executive authority by the PCI is in excess of its powers,
the impugned decisions cannot be sustained. It may be emphasised,
however, that I have not considered it necessary to examine whether
the imposition of a moratorium is otherwise ultra vires the powers of
the PCI. As arguments were advanced by learned counsel on some of
these aspects, it is made clear that I have not rendered any finding on
the question of whether a complete prohibition can be imposed as a
facet of regulation (even by framing Education Regulations under
Section 10 of the Act), or whether the doctrines of reasonableness and
proportionality are attracted in the present case.
46. Although adjudication of the merits of the impugned decision is
not required in view of the above conclusion, Mr. Singh suggested that
the Court may wish to prescribe guidelines for any further
consideration by the authorities. Having heard learned counsel at
length on these points also, I consider it appropriate to make only the
following brief observations, intended at this stage as guidelines to be
borne in mind by the regulatory authorities:-
a) Regulatory decisions which have far reaching consequences
upon citizens require scientific study and supporting data. The
regulator must have sufficient material to support its decisions
Supra (note 54)
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and correlate the objective of the decision with the material
before it. The expectation is not of comprehensive or granular
empirical data in every case, but of material which can
demonstrate the reasonableness of the assumptions made and
the decision taken. While acknowledging that the regulatory
bodies are comprised of experts with relevant experience, it is
necessary to emphasise that sufficient factual basis of the
decision must be available, so that the authority is able to show
due application of mind.
b) The regulator must also show consistency in its approach and
analysis of the data. In the present case, for example, the PCI
has justified the moratorium inter alia on the ground of vacancy
in pharmacy colleges. However, the PCI's communication dated
26.09.201967, contemplates an addition of 2,00,000 pharmacists
to the workforce every year. There is prima facie an
inconsistency in these considerations, to the extent that it is
unclear whether such an addition would occur despite the
vacancies in pharmacy colleges. Similarly, despite the grounds
used to justify the moratorium, the PCI has, in fact, granted
permission for addition of 34,800 seats in exempted institutions
in the year 2020-21.68
c) The exemptions granted by the impugned communication dated
09.09.2019 are also, by their very nature, antithetical to the
Annexure R-10 to the counter affidavit of the PCI dated 14.01.2021.
Pages 22-23 of the written submissions filed by the petitioner in W.P.(C) 175/2021 dated
14.01.2021. I was also informed in the course of hearing that a further 13,000 seats were permitted
in exempted institutions in 2021-22.
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objectives of the moratorium. They must therefore bear close
scrutiny. Even where such classifications are required, they
must be reasonable and have a rational nexus with the objective
of the decision maker. In the present case, for example, the
exemption granted to the States with less than 50 pharmacy
colleges is independent of the size of the State. Consequently, it
bears no correlation to the pharmacist-to-population ratio
prevailing in the State, or to any other metric which has been
used to justify the moratorium in the first place. Similarly, the
exemptions granted to existing institutions for increase in
number of seats is also unsupported by any material on record.
d) As a matter of practice, regulatory bodies entrusted with
decisions which affect the establishment of institutions, such as
the present case, would do well to consider whether it is
possible to make their decisions known some time before they
come into effect. Although Mr. Singh submitted that the
petitioners have not laid any factual basis for their argument
that they have expended any amount by way of infrastructure,
such grievances can be minimised if such far-reaching decisions
are made effective after a reasonable lapse of time, rather than
immediately upon announcement.
Conclusion
47. For the reasons aforesaid, the impugned decisions of the PCI
dated 17.07.2019 and 09.09.2019 are set aside. The writ petitions are
allowed in the aforesaid terms, but without any order of costs.
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Signing Date:07.03.2022
48. I would like to record my sincere appreciation for the assistance
rendered by learned counsels in this case, particularly Mr. Sanjay
Sharawat and Mr. Maninder Singh. Due to the restricted functioning
of the Court from time to time, the hearings were regrettably
prolonged but learned counsel were painstaking in their efforts to
assist the Court with the requisite material on record, and the case law.
49. A copy of this judgment be kept in the file of each of the
petitions.
PRATEEK JALAN, J.
MARCH 07, 2022
'sc/sv/vp/pv/hkaur/bp'
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Digitally Signed By:SHITU
NAGPAL
Signing Date:07.03.2022
