Ravi Bhushan Puri Son Of Shri ... vs The Union Of India
2022 Latest Caselaw 6826 Raj/2

                HIGH COURT OF JUDICATURE FOR RAJASTHAN
                            BENCH AT JAIPUR

                        S.B. Civil Writ Petition No. 4231/2021

        Ravi Bhushan Puri Son Of Shri Rajendra Pal Puri, Aged About 80
        Years, Resident Of 60/182, New Sanganer Road, Mansarovar,
        Jaipur.
                                                                                       ----Petitioner
                                                    Versus
        1.        The Union Of India, Through Its Secretary, Health
                  Department (Ministry Of Health And Family Welfare),
                  Nirman Bhawan, New Delhi.
        2.        Pharmacy Council Of India, Through Its Registrar-Cum-
                  Secretary, NBCC Center, 3rd Floor, Plot No. 2, Community
                  Center, Maa Anandmai Marg, Okhla Phase-I, New Delhi-
                  110020.
        3.        Rajasthan         Pharmacy            Council,        Through          Its    Registrar,
                  Government Dispensary Campus, Sardar Patel Marg,
                  Jaipur.
                                                                                  ----Respondents

For Petitioner(s) : Mr.R.K.Mathur, Sr.Advocate assisted by Mr.Aditya Kiran Mathur, Advocate.

For Respondent(s) : Ms.Anuradha Upadhyay, Mr.Amrit Kumar Surolia & Mr.Aditya Surolia, Advocates.

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

20/10/2022 REPORTABLE

This writ petition has been filed by the petitioner challenging

the communications/letters dated 27.11.2020 (wrongly typed as

27.11.2019 in the writ petition), 04.12.2020 and 04.06.2021

whereby the respondent-Pharmacy Council of India has not

accepted the nomination of the petitioner to represent the

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(2 of 24) [CW-4231/2021]

Rajasthan Pharmacy Council in the Central Council-Pharmacy

Council of India.

2. The petitioner also prays for issuing a Notification notifying

that the petitioner is a representative of the Rajasthan Pharmacy

Council to represent in Pharmacy Council of India under Section

3(g) of the Pharmacy Act, 1948 (hereinafter referred to as "the

Act of 1948").

3. The facts, in nutshell, as pleaded in the writ petition are that

the petitioner is a registered Pharmacist with the Rajasthan

Pharmacy Council in terms of Section 32(1)(a) of the Act of 1948

having registration No.7895 dated 31.07.1986. The petitioner is

having the membership of the Rajasthan Pharmacy Council from

1987 to 31.12.2027, except for the period from 2008 to 2013. The

petitioner also remained Vice President of the Rajasthan Pharmacy

Council from 1987 to 1991 and thereafter elected as President,

Rajasthan Pharmacy Council from 1991 to 1997 and further the

petitioner remained President of the Rajasthan Chemists

Association since 1984.

4. The petitioner has pleaded in the writ petition that the Act of

1948 under Chapter-II Section 3 provides for constitution and

composition of Central Council known as the Pharmacy Council of

India and as per Section 3(g) of the Act of 1948 each State

Pharmacy Council has to elect one member (from amongst

themselves), who shall be a registered Pharmacist, as its

representative in the Pharmacy Council of India.

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(3 of 24) [CW-4231/2021]

5. The petitioner has pleaded that one incumbent-Mr.Ajay

Phatak who had a term of five years ceased to be a member of the

Rajasthan Pharmacy Council on 20.07.2019 and as such, in his

place, new member was to be elected to represent the Rajasthan

Pharmacy Council in the Pharmacy Council of India.

6. The petitioner has pleaded that General Body meeting of the

Rajasthan Pharmacy Council was held on 29.07.2020 and in the

said meeting, the petitioner was elected to represent the

Rajasthan Pharmacy Council in the Pharmacy Council of India and

accordingly, due intimation was given to the Secretary, Pharmacy

Council of India by letter dated 29.07.2020 regarding election of

the petitioner as Member, Pharmacy Council of India to represent

the Rajasthan Pharmacy Council. The petitioner has pleaded that

on the same day i.e. 29.07.2020, the Rajasthan Pharmacy Council

also informed the Pharmacy Council of India to provide all

privileges to the petitioner in place of the earlier incumbent

Mr.Ajay Phatak.

7. The petitioner has pleaded that the Pharmacy Council of

India sent a letter dated 30.07.2020 to the Registrar, Rajasthan

Pharmacy Council and asked them to forward the pharmacy

registration certificate and qualification certificate of the petitioner

and in response thereto, the Registrar, Rajasthan Pharmacy

Council vide letter dated 04.08.2020, forwarded the desired

documents.

8. The petitioner has pleaded that in spite of sending the letter

dated 04.08.2020 by the Rajasthan Pharmacy Council, when the

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(4 of 24) [CW-4231/2021]

name of the petitioner did not find place as representative of the

Rajasthan Pharmacy Council, the Registrar, Rajasthan Pharmacy

Council vide letter dated 25.08.2020 requested the Pharmacy

Council of India to notify the name of the petitioner as Member

under Section 3(g) of the Act of 1948 without further delay.

9. The petitioner has pleaded that the respondent-Pharmacy

Council of India instead of notifying the name of the petitioner as

representative of the Rajasthan Pharmacy Council, again sent an

email dated 28.08.2020 to the Registrar, Rajasthan Pharmacy

Council questioning about registration of the petitioner as

Pharmacist. However, the Registrar, Rajasthan Pharmacy Council

again submitted a detailed reply vide letter dated 30.09.2020

requesting to issue Notification regarding membership of the

petitioner under Section 3(g) of the Act of 1948.

10. The petitioner has pleaded that the respondent-Pharmacy

Council of India issued the impugned communication dated

27.11.2020 intimating that the issue regarding membership of the

petitioner was considered by 336th Executive Committee of the

Pharmacy Council of India which found that the petitioner was not

holding the approved qualification under Section 32(1)(a) of the

Act of 1948 and his nomination was not found in accordance with

the provisions of the Act of 1948.

11. The petitioner has pleaded that by another communication

dated 04.12.2020, the Pharmacy Council of India again reiterated

that the petitioner was not holding the approved qualification and

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(5 of 24) [CW-4231/2021]

his nomination was not in accordance with the provisions of the

Act of 1948.

12. The petitioner has further pleaded that the Registrar,

Rajasthan Pharmacy Council informed the Pharmacy Council of

India that they had no power to negate the registration of the

petitioner as a Pharmacist or to deny his registration under

Section 3(g) of the Act of 1948 and further reference was made of

the judgment passed by the Division Bench of this Court in

D.B.Civil Special Appeal No.319/1984 (Rajasthan Pharmacists

Association & Anr. Vs. State of Rajasthan & Ors.), giving power to

the Rajasthan Pharmacy Council to register those Pharmacists

whose applications were received on or before 31.08.1981. The

Rajasthan Pharmacy Council again made a request to issue

Notification regarding membership of the petitioner under Section

3(g) of the Act of 1948.

13. The petitioner has pleaded in the writ petition that he

submitted representations before the respondent-authorities but

no heed was paid by the respondent-authorities. Finally, the

petitioner sent a legal notice through his counsel for issuance of

proper Notification in favour of the petitioner to represent the

Rajasthan Pharmacy Council in the Pharmacy Council of India.

14. The respondent-Pharmacy Council of India, after issuance of

notice in the writ petition, filed an additional affidavit and placed

on record communication dated 04.06.2021 whereby the issue of

membership of the petitioner was again considered by the

Executive Committee in its 346th meeting held in May, 2021 and it

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(6 of 24) [CW-4231/2021]

was found that the petitioner did not fulfill the prescribed

requirement for registration as a Pharmacist and as such, the

nomination of the petitioner was not accepted.

15. The petitioner filed amendment application in the writ

petition and permission was granted to amend the writ petition, as

such, the amended writ petition was filed and the petitioner in the

amended writ petition, has challenged the communication dated

04.06.2021.

16. Learned Senior Counsel Mr.R.K.Mathur appearing for the

petitioner has made following submissions while assailing the

action of the respondents:-

16A. The impugned communications and decision of the

Pharmacy Council of India, declining election of the

petitioner as representative of the Rajasthan Pharmacy

Council in the Pharmacy Council of India, on the ground of

not holding the approved qualification under Section 32(1)

(a) of the Act of 1948, is ex-facie illegal, arbitrary and

against the provisions of the Act of 1948.

16B. The General Body meeting of Rajasthan Pharmacy

Council held on 29.07.2020 had elected the petitioner as

Member under Section 3(g) of the Act of 1948 to represent

the Rajasthan Pharmacy Council and due intimation was also

sent by the Rajasthan Pharmacy Council about petitioner's

eligibility and his registration as Pharmacist, the Pharmacy

Council of India has no power to negate the registration of

the petitioner as Pharmacist.

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(7 of 24) [CW-4231/2021]

16C. The petitioner has duly been registered, as per the

qualification prescribed under Section 31(d) of the Act of

1948 and his name being entered in the register, as per

Section 32 of the Act of 1948, the respondent-Pharmacy

Council of India has no power to question the eligibility of

the petitioner.

16D. The petitioner was registered as a Pharmacist, as he

had submitted his application before the cut-off date, fixed

by the Division Bench of this Court and the Rajasthan

Pharmacy Council, was fully satisfied about eligibility of the

petitioner, Pharmacy Council of India cannot treat him as a

'Pharmacist wrongly registered' with the Rajasthan Pharmacy

Council or not having the requisite qualification, as

prescribed under Section 31(d) of the Act of 1948.

16E. The power, if any, available for removal of name of the

person-petitioner, as a registered Pharmacist, can only be

invoked, as per Section 36 of the Act of 1948 by the

Executive Committee and such power has not been exercised

by the Rajasthan Pharmacy Council, even after receiving

communication from the Pharmacy Council of India, on the

ground of ineligibility of the petitioner or lack of qualification,

as prescribed under the Act of 1948, therefore, no such

power is vested with the Pharmacy Council of India to refuse

to accept the nomination of the petitioner to represent the

Rajasthan Pharmacy Council in the Pharmacy Council of

India.

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(8 of 24) [CW-4231/2021]

17. The respondent-Pharmacy Council of India has filed counter

affidavit and pleaded that after entering into various

correspondences with the Rajasthan Pharmacy Council and

receiving information about eligibility and registration of the

petitioner, a meeting was held of the Executive Committee of

Pharmacy Council of India on 12.11.2020 and it was decided that

the petitioner was not holding the approved qualification

prescribed under Section 32(1)(a) of the Act of 1948 and as such,

the nomination of the petitioner was not in accordance with the

provisions of the Act of 1948.

18. The respondent-Pharmacy Council of India has pleaded that

after receipt of legal notice from the counsel of the petitioner, the

matter was again placed before the 44 th Law Committee meeting

of the Pharmacy Council of India on 24.02.2021 regarding

registration of the petitioner and it was decided to ask the

Registrar of the Rajasthan Pharmacy Council to file certain

information. The recommendation of the Law Committee was

placed in the Executive Committee of the Pharmacy Council of

India and thereafter decision was taken not to accept the

nomination of the petitioner as he did not fulfill the prescribed

requirement for registration as a Pharmacist.

19. The respondent-Pharmacy Council of India, after amendment

of the writ petition, has filed another counter affidavit and has

reiterated the contentions which were raised earlier.

20. The counsel appearing for the respondent-Pharmacy Council

of India, Mrs.Anuradha Upadhyay has submitted as under:-

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(9 of 24) [CW-4231/2021]

20A. The Pharmacist Council of India is the Apex Body and it

is duty bound to verify the eligibility of any person for

registration as a Pharmacist and it has to ensure that only

eligible and qualified persons are registered as Pharmacists

and enter in the profession which is related to public health.

20B. The petitioner did not fulfill the qualification for

entering his name in the first register as prescribed under

Section 31(d) of the Act of 1948. The documents relating to

working of the petitioner in a dispensary where drugs are

dispensed on prescriptions, the petitioner was not having the

prescribed five years experience on the submission of his

application to the Rajasthan Pharmacy Council on

29.08.1981 and he was having only three years and one

month experience and he is also alleged to be working with

one Hansa Medical Hall which was not licensed under the

Drugs and Cosmetics Act for dispensing all medicines on the

prescription of Medical Practitioners.

20C. The Pharmacy Council of India being Apex Body will not

induct any member of State Council who is not a registered

Pharmacist in a proper manner and lacking the requisite

qualification and the Pharmacy Council of India has every

right to consider his eligibility and qualification of any

member to represent any State Pharmacy Council, even

after he is elected, by the State Pharmacy Council.

20D. Under Section 7 of the Act of 1948, the act of the

respondent-Pharmacy Council of India cannot be called in

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(10 of 24) [CW-4231/2021]

question merely because of the existence of any vacancy, if

the properly nominated person is not available to fill the

vacancy and as such, its action is immune from judicial

scrutiny.

20E. Section 45 of the Act of 1948 gives power of

appointment of commission of enquiry and the Pharmacy

Council of India has every right to question the eligibility of

any member and hold enquiry in the matter.

21. The respondent-Rajasthan Pharmacy Council has filed reply

to the writ petition and pleaded that the petitioner was duly

elected to represent the Rajasthan Pharmacy Council as a member

before the Pharmacy Council of India.

22. The respondent-Rajasthan Pharmacy Council has pleaded

that they in response to the various queries raised by the

Pharmacy Council of India, they replied back and had sent all the

requisite documents relating to registration of the petitioner as

Pharmacist. The respondent-Rajasthan Pharmacy Council has also

placed on record the various documents which were submitted by

the petitioner at the time of registration.

23. Counsel for the respondent-Pharmacy Council of India, in

support of her submissions, placed reliance on the judgment

rendered by the Apex Court in the case of Pharmacy Council of

India Vs. Dr.S.K.Toshniwal Educational Trusts Vidarbha

Institute of Pharmacy & Ors. reported in (2021) 10 SCC 657.

24. I have heard learned counsel for the parties and with their

assistance perused the material available on record.

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(11 of 24) [CW-4231/2021]

25. The core issue to be decided by this Court in the present

case is with regard to power of Pharmacy Council of India to

refuse to accept one member of a State Pharmacy Council, who is

elected by them and is duly registered with them.

26. This Court, before proceeding further in the matter, deems it

proper to quote the relevant provisions of the Act of 1948, which

read ad infra:-

"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) to (f) XX XX XX.

(g) one member to represent each State elected [from amongst themselves] by the members of each State Council, who shall be a registered pharmacist;

7. Term of office and casual vacancies.--(1) to (4) XX XX (5) No act done by the Central Council shall be called in question on the ground merely of the existence of any vacancy in, or any defect in the constitution of, the Central Council.

19. Constitution and composition of State Councils.-- Except where a Joint State Council is constituted in accordance with an agreement made under Section 20, the State Government shall constitute a State Council consisting of the following members, namely:--

(a) six members, elected from amongst themselves by registered pharmacists of the State;

(b) five members, of whom at least [three] shall be persons possessing a prescribed degree or diploma in pharmacy or pharmaceutical chemistry or [registered pharmacists], nominated by the State Government;

(c) one member elected from amongst themselves by the members of each Medical Council or the Council of Medical Registration of the State, as the case may be;

(d) the chief administrative medical officer of the State ex-officio or if he is unable to attend any meeting, a person authorised by him in writing to do so;

[(dd) the officer-in-charge of drugs control organisation of the State under the [Drugs and Cosmetics Act, 1940 (23 of 1940)], ex officio or if he is unable to attend any meeting, a person authorised by him in writing to do so;] (D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(12 of 24) [CW-4231/2021]

(e) the Government Analyst under the [Drugs and Cosmetics Act, 1940 (23 of 1940)], ex officio, or where there is more than one, such one as the State Government may appoint in this behalf:

Provided that where an agreement is made under clause (b) of sub-section (1) of section 20, the agreement may provide that the State Council to serve the needs of the other participating States also shall be augmented by not more than two members, of whom at least one shall at all times be a person possessing a prescribed degree or diploma in pharmacy or pharmaceutical chemistry or a [registered pharmacist], nominated by the Government of each of the said other participating States, and where the agreement so provides, the composition of the State Council shall be deemed to be augmented accordingly.

30. Preparation of first register.--(1) For the purpose of preparing the first register, the State Government shall by notification in the Official Gazette constitute a Registration Tribunal consisting of three persons, and shall also appoint a Registrar who shall act as Secretary of the Registration Tribunal.

(2) The State Government shall, by the same or a like notification, appoint a date on or before which application for registration, which shall be accompanied by the prescribed fee, shall be made to the Registration Tribunal. (3) The Registration Tribunal shall examine every application received on or before the appointed date, and if it is satisfied that the applicant is qualified for registration under section 31, shall direct the entry of the name of the applicant on the register.

(4) The first register so prepared shall thereafter be published in such manner as the State Government may direct, and any person aggrieved by a decision of the Registration Tribunal expressed or implied in the register as so published may, within sixty days from the date of such publication, appeal to an authority appointed by the State Government in this behalf by notification in the Official Gazette.

(5) The Registrar shall amend the register in accordance with the decision of the authority appointed under sub-section (4) and shall thereupon issue to every person whose name is entered in the register a certificate of registration in the prescribed form.

(6) Upon the constitution of the State Council, the register shall be given into its custody, and the State Government may direct that all or any specified part of the application fees for registration in the first register shall be paid to the credit of the State Council.

31. Qualifications for entry on first register.--A person who has attained the age of eighteen years shall be entitled on payment of the prescribed fee to have his name entered

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(13 of 24) [CW-4231/2021]

in the first register if he resides, or carries on the business or profession of pharmacy, in the State and if he--

(a) holds a degree or diploma in pharmacy or pharmaceutical chemistry or a chemist and druggist diploma of an Indian University or a State Government, as the case may be, or a prescribed qualification granted by an authority outside India, or

(b) holds a degree of an Indian University other than a degree in pharmacy or pharmaceutical chemistry, and has been engaged in the compounding of drugs in a hospital or dispensary or other place in which drugs are regularly dispensed on prescriptions of medical practitioners for a total period of not less than three years, or

(c) has passed an examination recognised as adequate by the State Government for compounders or dispensers, or

(d) has been engaged in the compounding of drugs in a hospital or dispensary or other place in which drugs are regularly dispensed on prescriptions of medical practitioners for a total period of not less than five years prior to the date notified under sub-section (2) of section 30.

32. Qualifications for subsequent registration.--(1) After the date appointed under sub-section (2) of section 30 and before the Education Regulations have, by or under section 11, taken effect in the State, 3 [a person who has attained the age of eighteen years shall on payment of the prescribed fee] be entitled to have his name entered in the register if he resides or carries on the business or profession of pharmacy in the State and if he--

(a) satisfies the conditions prescribed with the prior approval of the Central Council, or where no conditions have been prescribed, the conditions entitling a person to have his name entered on the first register as set out in section 31,

36. Removal from register.--(1) Subject to the provisions of this section, the Executive Committee may order that the name of a registered pharmacist shall be removed from the register, where it is satisfied, after giving him a reasonable opportunity of being heard and after such further inquiry, if any, as it may think fit to make,--

(i) that his name has been entered in the register by error or on account of misrepresentation or suppression of a material fact, or

(ii) that he has been convicted of any offence or has been guilty of any infamous conduct in any professional respect which in the opinion of the Executive Committee, renders him unfit to be kept in the register, or

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(14 of 24) [CW-4231/2021]

(iii) that a person employed by him for the purposes of his business of pharmacy 2 [or employed to work under him in connection with any business of pharmacy] has been convicted of any such offence or has been guilty of any such infamous conduct as would, if such person were a registered pharmacist, render him liable to have his name removed from the register under clause (ii):

Provided that no such order shall be made under clause (iii) unless the Executive Committee is satisfied--

(a) that the offence or infamous conduct was instigated or connived at by the registered pharmacist, or

(b) that the registered pharmacist has at any time during the period of twelve months immediately preceding the date on which the offence or infamous conduct took place committed a similar offence or been guilty of similar infamous conduct, or

(c) that any person employed by the registered pharmacist for the purposes of his business of pharmacy [or employed to work under him in connection with any business of pharmacy] has at any time during the period of twelve months immediately preceding the date on which the offence or infamous conduct took place, committed a similar offence or been guilty of similar infamous conduct, and that the registered pharmacist had, or reasonably ought to have had, knowledge of such previous offence or infamous conduct, or

(d) that where the offence or infamous conduct continued over a period, the registered pharmacist had, or reasonably ought to have had, knowledge of the continuing offence or infamous conduct, or

(e) that where the offence is an offence under the [Drugs and Cosmetics Act, 1940 (23 of 1940)], the registered pharmacist has not used due diligence in enforcing compliance with the provisions of that Act in his place of business and by persons employed by him [or by persons under his control].

(2) An order under sub-section (1) may direct that the person whose name is ordered to be removed from the register shall be ineligible for registration in the State under this Act either permanently or for such period as may be specified.

(3) An order under sub-section (1) shall be subject to confirmation by the State Council and shall not take effect until the expiry of three months from the date of such confirmation.

(4) A person aggrieved by an order under sub-section (1) which has been confirmed by the State Council may, within thirty days from the communication to him of such confirmation, appeal to the State Government, and the order of the State Government upon such appeal shall be final.

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(15 of 24) [CW-4231/2021]

(5) A person whose name has been removed from the register under this section or under sub-section (2) of section 34 shall forthwith surrender his certificate of registration to the Registrar, and the name so removed shall be published in the Official Gazette.

45. Appointment of Commission of Enquiry.--(1) Whenever it appears to the Central Government that the Central Council is not complying with any of the provisions of this Act, the Central Government may appoint a Commission of Enquiry consisting of three persons, two of whom shall be appointed by the Central Government, one being the Judge of a High Court, and one by the Council; and refer to it the matters on which the enquiry is to be made.

(2) The Commission shall proceed to enquire in such manner as it may deem fit and report to the Central Government on the matters referred to it together with such remedies, if any, as the Commission may like to recommend.

(3) The Central Government may accept the report or remit the same to the Commission for modification or reconsideration.

(4) After the report is finally accepted, the Central Government may order the Central Council to adopt the remedies so recommended within such time as may be specified in the order and if the Council fails to comply within the time so specified, the Central Government may pass such order or take such action as may be necessary to give effect to the recommendations of the Commission. (5) Whenever it appears to the State Government that the State Council is not complying with any of the provisions of this Act, the State Government may likewise appoint a similar Commission of Enquiry and pass such order or take such action as specified in sub-sections (3) and (4).

27. This Court on perusal of various provisions of the Act of 1948

finds that the Pharmacy Council of India consists of different

members and as per Section 3(g) of the Act of 1948, there has to

be one member to represent each State elected (from amongst

themselves) by the members of each State Council, who is

required to be a registered Pharmacist.

28. This Court finds that for registration of a Pharmacist, the

qualifications have been prescribed in Section 31 of the Act of

1948 and a person possessing any of the qualifications, prescribed

therein, can have his name entered in the first register.

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(16 of 24) [CW-4231/2021]

29. This Court finds that the Act of 1948, after preparation of the

first register for entering the name of registered Pharmacist,

under Section 32 of the Act of 1948, provides qualifications for

subsequent registration.

30. The facts, as have come on record, demonstrate that the

petitioner was registered as a Pharmacist by the Rajasthan

Pharmacy Council on 31.07.1986 under Section 32(1)(a) of the

Act of 1948. This Court finds that the issue with regard to

registration of Pharmacist in the State of Rajasthan was settled by

the judgment of the Division Bench of this Court vide judgment

dated 01.04.1986 passed in D.B.Civil Special Appeal No.319/1984

(Rajasthan Pharmacists Association & Anr. Vs. State of Rajasthan

& Ors.) and the Division Bench of this Court came to the

conclusion that all the applications which had been received upto

31.08.1981, were to be decided by the State Council in

accordance with the relevant Rules and Regulations.

31. This Court finds that the petitioner in the present case

submitted an application before the cut-off date i.e. on

29.08.1981 and as such, his name was entered in the register of

Pharmacist maintained by the Rajasthan Pharmacy Council under

Section 32(1)(a) of the Act of 1948.

32. This Court finds that registration of the petitioner as

Pharmacist is still in vogue and the same has been renewed upto

31.12.2027. This Court finds that the General Body meeting of the

Rajasthan Pharmacy Council was convened on 29.07.2020 and the

petitioner was elected to represent the Rajasthan Pharmacy

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(17 of 24) [CW-4231/2021]

Council as a member before the Pharmacy Council of India and till

date his name has not been removed from the register maintained

by the Rajasthan Pharmacy Council and no proceedings under

Section 36 of the Act of 1948, have been undertaken, questioning

the registration of the petitioner as a registered Pharmacist on any

of the grounds, which have been enumerated for removing the

name of a person from the register, like entering the name in the

register by error or on account of misrepresentation or

suppression of a material fact.

33. This Court finds that the respondent-Pharmacy Council of

India in various communications have communicated to the

Rajasthan Pharmacy Council that qualification held by the

petitioner was not approved qualification prescribed under Section

32(1)(a) of the Act of 1948 and his nomination is not said to be in

accordance with the provisions of the Act of 1948.

34. This Court finds that composition of the Pharmacy Council of

India needs to have one member representing each State, elected

by the members of State Council, who is a registered Pharmacist

and as such, there is no dispute that the petitioner was duly

elected by the General Body meeting of the Rajasthan Pharmacy

Council and on the date he was elected, he was a registered

Pharmacist as well.

35. The plea raised by the Pharmacy Council of India that the

petitioner did not hold the approved qualification under Section

31(1)(a) of the Act of 1948 and his nomination is not in

accordance with the provisions, cannot be accepted by this Court

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(18 of 24) [CW-4231/2021]

as once a member is elected by the State Pharmacy Council and

he is a registered Pharmacist and if the twin conditions are fulfilled

by a candidate, then denial to induct such candidate will be in

violation of composition of Central Council i.e. Pharmacy Council of

India, as has been envisaged under Section 3 of the Act of 1948.

36. The action of Pharmacy Council of India in questioning the

qualification of the petitioner as having not fulfilled as per the

Section 31(d) of the Act of 1948, cannot be a relevant

consideration while accepting the nomination of the petitioner in

the Central Council. The Pharmacy Council of India if had any

doubt or they questioned holding of basic qualification by the

petitioner, remedy as provided under the law was available to

them and as such, the Pharmacy Council of India being Apex

Body, was not denuded of its power to take the legal recourse.

37. This Court finds that if the respondent-Pharmacy Council of

India had raised the issue of qualification of the petitioner as not

being registered as a Pharmacist on any count, the power given to

remove the name of a registered Pharmacist from the register lies

with the Executive Committee, after following the due procedure,

as prescribed under the Act of 1948, after protection given to the

person concerned, it is always open to the authorities to exercise

their power as provided under the law.

38. This Court finds that registration as a Pharmacist and

removal of name from register, is duly regulated under the

provisions of the Act of 1948.

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(19 of 24) [CW-4231/2021]

39. This Court finds that the Apex Court in the case of Rajendra

Prasad Bagaria Vs. Pharmacy Council of State of Rajasthan

& Ors. reported in (2012) 3 SCC 212, has dealt with the power

given to the State Pharmacy Council to exercise its power as

provided under Section 36 of the Act of 1948 and to see that

Section 32 of the Act of 1948 entitles a registered Pharmacist to

practice. The extract of the judgment, being relevant for the

present controversy, is reproduced hereunder:-

"17. It is true that section 32 of the Act does entitle a registered pharmacist in one State to have his name entered in the register of another State. Section 33 of the Act, however, gives the power of scrutiny to the State Council and every enrolment is subject to the scrutiny. Thereafter, if the State Council receives any complaint concerning the eligibility of a person to function as a pharmacist, the Executive Committee of the Council does have the power to make necessary enquiry under Section 36 of the Act, and if satisfied, to remove the name of such a registered pharmacist though after giving him a reasonable opportunity of being heard. Sub-section (i) of Section 36 (1) gives the grounds on which a name can be removed from the register.

18. In the instant case, the Executive Committee was satisfied that there was an error in enrolling the appellant as a registered pharmacist. At that stage, the appellant has been called upon to give his explanation. In this enquiry, one State Council can certainly look into the prima-facie material on the basis of which registration was granted in another State. This is because the State Council is given the power to scrutinize such applications, and if such registration has been permitted by any error to that extent, it can certainly take the corrective step. Such a decision cannot amount to sitting in appeal over the decision of another State's Council. This is because the concerned State Council is answerable to the persons purchasing the medicines from the pharmacists in the State. It is its duty to see that pharmacists do have necessary educational qualifications or the experience as required.

19. In a country where there is so much illiteracy, the requirements concerning educational qualifications or experience of the pharmacist have to be scrupulously scrutinized. If the registration of the concerned pharmacist obtained from another state does not appear to be a justified registration, the transferee State Council can certainly decline to accept that registration for the purpose of carrying on the profession of a pharmacist in the transferee State, or cancel such registration once effected. Such scrutiny is

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(20 of 24) [CW-4231/2021]

permissible at the time of initial registration, and also later when complaints are received, leading to the enquiry for the purpose of removal from their register.

20. It was submitted on behalf of the appellant that in the instant case, the act did not provide a solution to this type of problem. The appellant relied upon the judgment of this Court in Maruti Wire Industries Pvt. Ltd. Vs. S.T.O. to submit that where the Legislature was silent about any particular aspect, the same could not be supplied by judicial interpretative process. As seen above, in the instant case, the provisions of the Act are sufficiently clear, and therefore, the actions of the respondent could not be faulted.

21. The purpose of a welfare statute cannot be permitted to be defeated by the methods such as the one employed by the appellant. As stated earlier, the Act is passed for making better provisions for the regulation of the profession and practice of pharmacy. As is seen, the primary qualification for such a person is to have a degree or diploma in pharmacy. It is only as an alternative qualification that some other degree with three years experience is permitted. The last alternative qualification is that of five years experience in dispensing drugs which has to be in the concerned State. This is because under Section 31 of the Act, the person who wants to be registered as a pharmacist has to be of 18 years of age, and he has to reside and carry on the business or profession of pharmacy in that particular state. The State Pharmacy Council which issues the certificate of registration ought to satisfy itself that the person concerned did have atleast five years of experience, and which experience has obviously to be in that State for the State Council to assess it.

22. In the instant case, the appellant did not reside or carry the business or profession of pharmacy or dispensing of drugs in Sikkim for more than five years. If any such method, as adopted by the appellant is permitted, persons who claim to have experience of five years in one State, will go to another State for a few months only to obtain registration in that State, and thereafter seek transfer of that registration to their own state. In the instant case, the first respondent did not have any opportunity to examine as to whether the appellant did have the experience of five years in Rajasthan. The only submission of the appellant is that the papers which concerned the so-called experience were submitted to the Sikkim Tribunal alongwith the certificate of employer of the appellant in Sikkim where he worked for just two months. The consequences of accepting appellant's plea will mean that the transferee State will have to accept a person as a pharmacist when it did not have the opportunity to examine the material with respect to his experience of more than five years. The requirement of five years experience in the registering State will be defeated if any such methods are permitted."

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(21 of 24) [CW-4231/2021]

40. The contention of learned counsel for the respondent that

the Pharmacy Council of India being the Apex Body has every

right to consider the eligibility of any member even if he is elected

by the State Pharmacy Council and registered Pharmacist as well

and if ineligible and disqualified person is recommended, then the

Pharmacy Council of India has its own power to refuse to accept

such nomination, suffice it to say by this Court that the Pharmacy

Council of India can exercise its power, however, for removal of a

person as a Pharmacist from the register which is maintained for

registered Pharmacist, the same has to be exercised in the

manner, which is prescribed under the law. However, this Court

may not be misunderstood to hold that the Central Council i.e.

Pharmacy Council of India will have no power to question the

eligibility or qualification of a person but such power can be

exercised in a manner, which has been prescribed under the

provisions of the Act of 1948.

41. This Court also finds that if any member of the State

Pharmacy Council, who is duly elected and a registered Pharmacist

as well, is declined to be accepted by the Apex Body, then the

same would result into defeating the very purpose of composition

of Central Council and it would also be against the democratic

right which is given to the State Pharmacy Council to elect its own

member to represent them in the Central Council.

42. The submission of learned counsel for the respondent-

Pharmacy Council of India that sub-section (5) of Section 7 of the

Act of 1948 gives them immunity and their action cannot be called

in question, this Court is afraid to accept such submission as

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(22 of 24) [CW-4231/2021]

Section 7 of the Act of 1948 deals with term of office and casual

vacancies and sub-section (5) of Section 7 of the Act of 1948 only

protects the act of Central Council if it works in spite of existence

of any vacancy or full quorum is not there. This Court finds that in

the present case, the action of the Central Council is not

challenged on account of leaving any vacancy unfilled and the

issue before this Court is with respect to non-acceptance of the

petitioner as a member of the Central Council-Pharmacy Council of

India in spite of recommendation in his favour by the Rajasthan

Pharmacy Council.

43. The submission of learned counsel for the respondent-

Pharmacy Council of India that Section 45 of the Act of 1948

provides for appointment of Commission of Enquiry and the

Pharmacy Council of India has accordingly exercised its power, this

Court is afraid to accept such submission of learned counsel for

the respondent as the said Section is not applicable at all in the

present facts of the case and moreover it is the power of Central

Government to appoint a Commission of Enquiry if the Central

Council is not complying with any of the provisions of the Act of

1948 and as such, Section 45 of the Act of 1948 is not attracted to

the facts of the present case.

44. As regards reliance placed by counsel for the respondent on

the case of Pharmacy Council of India Vs. Dr.S.K.Toshniwal

Educational Trusts Vidarbha Institute of Pharmacy & Ors.

(supra), this Court finds that the issue in the said case before the

Apex Court was with respect to applicability of the Act of 1948 vis-

à-vis the provisions contained in All India Council of Technical

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(23 of 24) [CW-4231/2021]

Education Act, 1987 (AICTE Act). The Apex Court came to the

conclusion that AICTE Act is a general law applicable to technical

institutions and technical education, whereas the Act of 1948 is a

special Act in the field of Pharmacy and as such, the Act of 1948

was to prevail in respect of the qualifications, which were

prescribed for Pharmacists and further their registration as

Pharmacist and regulation of future professional conduct, etc.

were the sole duty of the Pharmacy Council of India and not of

AICTE. The said case has not application to the issue involved in

the present case and the same is of no assistance.

45. This Court finds that the respondent-Pharmacy Council of

India has not acted in a fair manner and as such, they have acted

arbitrarily in refusing to accept induction of the petitioner as a

member in the Central Council-Pharmacy Council of India.

46. This Court accordingly, sets aside the impugned

communications dated 27.11.2020, 04.12.2020 and 04.06.2021

and directs that the petitioner is entitled to be inducted in the

Central Council-Pharmacy Council of India as a representative of

the Rajasthan Pharmacy Council and necessary Notification is also

required to be issued accordingly by the respondent-Pharmacy

Council of India. This Court further finds that the petitioner, who

was elected in the year 2020 has almost lost two years of his term

and as such, the respondent-Pharmacy Council of India will

undertake the exercise of notifying the name of petitioner as

representative of Rajasthan Pharmacy Council within a period of

four weeks from the date of receipt of copy of this Court.

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

(24 of 24) [CW-4231/2021]

47. Consequently, the instant writ petition stands allowed in

above terms.

(ASHOK KUMAR GAUR),J

Solanki DS, PS

(D.B. SAW/430/2021 has been filed in this matter. Please refer the same for further orders)

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