Rajasthan High Court - Jodhpur
Global Pharmacy College vs The State Of Rajasthan on 14 October, 2025
[2025:RJ-JD:44028]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 10763/2025
Global Pharmacy College, Kuchaman City, District Nagaur Under
Management Of The Global Management And Technology
Sansthan, Station Road, Kuchaman City, Nagaur, Through Its
Secretary Sultan Singh Thalor S/o Rameshwar Lal, Aged About
42 Years, R/o Raghunath Pura, Khood, Khoor, Sikar, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through State Additional Chief
Secretary, Department Of Medical Health And Family
Welfare, Government Of Rajasthan, Secretariat, Jaipur.
2. Secretary, Medical Education Department, Govt. Of
Rajasthan, Saket Colony, Adarsh Nagar, Jaipur, Rajasthan.
3. Additional Director, Directorate Of Medical Education,
Chikitsa Shiksha Bhawan, Govind Marg, Jaipur Rajasthan.
4. Pharmacy Council Of India, Nbcc Centre, 3Rd Floor, Plot
No. 07, Community Centre, Maa Anandamai Marg, Okhla
Phase-I, New Delhi Through Its Registrar Cum Secretary.
5. Rajasthan Pharmacy Council, Through Its President, Govt.
Dispensary Campus, Near Sahkar Bhawan, Sardar Pate
Marg, Jaipur.
6. Rajasthan University Of Health Sciences, Kumbha Marg,
Tonk Road, Jaipur Through Its Registrar.
----Respondents
For Petitioner(s) : Mr. Shreyansh Mardia.
Mr. Mayank Rajpurohit.
For Respondent(s) : Mr. N.S. Rajpurohit, AAG with
Ms. Kanchan Jodha.
Mr. Nishant Gaur.
Mr. Sajjan Singh Rathore, AAG with
Mr. Pravin Kumar Choudhary
Ms. Akshiti Singhvi
Mr. Mahendra Vishnoi
Mr. Shagun Mathur
Mr. Tanishq Bafila
HON'BLE MR. JUSTICE SUNIL BENIWAL
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Order
Reportable
Reserved on : 07/10/2025
Pronounced on : 14/10/2025
1. This writ petition has been filed by the petitioner - Institution
with the following prayer :-
A. By appropriate writ, order or direction the order
dated 26.04.2025 (Annex.12) issued by Government of
Rajasthan Medical education "Group-I" department
deserves to be declared illegal and be quashed and set
aside.
B. That the respondent State may kindly be directed to
grant NOC to the Petitioner institution for academic year
2025-26 and subsequent year;
C. By appropriate writ, order or direction the decision
taken by Pharmacy Council of India in its 423th Execution
Committee held on 12.02.2025 may kindly be declared
illegal and be quashed and set aside.
D. By appropriate writ, order or direction the respondent
State Government may kindly be directed to grant NOC in
favour of the Petitioner institution to undertake the
B.Pharmacy course for academic year 2025-26 and for
subsequent academic years.
E. That the Rajasthan University of Health Sciences be
directed to grant and continue affiliation for the academic
year 2025-26 and for subsequent academic years.
F. Any other order or direction, which this Hon'ble
Court deems fit and proper in the facts and circumstances of
the case may kindly be passed in favour of the humble
petitioner;
G. The costs of the writ petition may kindly be awarded
in favour of the petitioner.
2. Brief Facts :
2.1 The petitioner - Institution applied for starting degree course
of B-Pharmacy and sought grant of affiliation so also NOC from the
State Government. The inspection of the college premises was not
conducted and in these circumstances a writ petition being SBCWP
No.9008/2024 was filed and the same came to be disposed of vide
order dated 23.05.2024 while granting liberty to the petitioner to
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approach the respondent authorities. In compliance of the said
order, the inspection was conducted and report was submitted on
28.08.2024 (Annexure-3). The said report was in favour of the
petitioner - Institution. Despite the said report, no action was
taken, then the petitioner-Institution filed another writ petition
being SBCWP No.3340/2025, wherein interim order dated
06.02.2025 came to be passed and directions were issued to grant
consent of affiliation of the petitioner - Institution on provisional
basis.
2.2 The petitioner - Institution was granted provisional consent
of affiliation on 25.02.2025 (Annexure-10) by the respondent -
RUHS. However, on account of non-submission of NOC and
consent of affiliation before the Pharmacy Council of India ('PCI'),
the application filed by the petitioner for starting degree course of
B-Pharmacy was rejected on 12.02.2025 (Annexure-11).
2.3 The State Government thereafter passed an order dated
26.04.2025 (Annexure-12) imposing ban on grant of NOC to the
colleges intending to start B.Pharmacy Course operating in the
State of Rajasthan so also for establishment of new colleges
seeking to impart B-Pharmacy course. In these circumstances, the
earlier writ petition being SBCWP No.3340/2025 was withdrawn by
the petitioner on 14.05.2025 with liberty to file afresh. Hence, the
present writ petition has been filed challenging the impugned
order dated 26.04.2025 (Annexure-12).
3. Learned counsel for the petitioner while arguing the writ
petition made the following submissions :-
(i)- The impugned order dated 26.04.2025, whereby the State
Government has imposed ban, has been made applicable only on
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private colleges. Such action is not only arbitrary but also
discretionary as well. The ban has been imposed for starting new
pharmacy course by private colleges, however, at the same time,
Government colleges / universities are allowed to admit students
for B-Pharma course. That being so, the impugned order is
required to be quashed and set-aside being arbitrary and
discriminatory and such action is nothing but a colourable exercise
of power.
(ii)- The reason for passing the impugned order dated 26.04.2025
is that there is mushroom growth of unemployed B-Pharma
degree-holders and therefore, such ban was required. The
respondents on one hand have imposed such ban and parallelly,
new advertisements are being issued in frequent interval which
rather indicate that there is requirement of B-Pharma degree-
holders in different departments, at different places and at
different positions.
(iii)- The ban would remain applicable on private institutes for
starting new Pharmacy course, however, the Government / private
universities would continue to admit students as there is no
requirement of NOC. Based on such facts, the State Government
has adopted a discriminatory approach which is bad in eyes of law.
(iv)- The impugned order has been made applicable only on those
private colleges, which are affiliated to RUHS and that too, the
institutes which are proposing to start new pharmacy course. The
said action is in complete violation of Article 14 of the Constitution
of India as the existing colleges would be allowed to continue and
petitioner - Institution would be deprived of running such course.
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(v)- Decision has been taken without collecting any empirical data
on the requirement of B-Pharma degree holders in the working
field.
(vi)- As per the note-sheet annexed with the additional affidavit,
the respondent has given combined figure of 19000 students for
being awarded degree / diploma-holder. As a matter of fact, in the
present case the issue pertains to grant of NOC for B. Pharma
courses and therefore, the combined figure as highlighted shows
that the authority has not taken the decision while actually
considering the figures of the candidates obtaining degree courses.
As a matter of fact, this further reflects that decision has been
taken without due application of mind.
(vii)- Another reason for imposing ban on starting new pharmacy
course is that there were shortage of admissions in the existing
institutes, which varies from 10% to 25%. This reason cannot be a
ground to impose such ban, more particularly in the case of the
petitioner. The petitioner is proposing to start B-Pharma course in
District Nagaur and to the best of petitioner's knowledge, there is
no other Institute in Nagaur District which imparts B-Pharma
degree and that being so, the reason assigned by the respondent
in imposing ban is totally contrary to the record. No demographic
study has been done and such ban has been imposed without
considering the fact that a person who obtains B-Pharma degree is
not only eligible to seek employment under the Government sector
but have ample opportunities in private sector such as Pharmacist
in Hospital, Drug Inspector, Research Institutes, Quality Control /
Assurance Officer, Teaching positions, Medical Representatives,
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Retail Pharmacist, Clinical Research Associate, Vigilance Officer
etc.
In view of the requirement in various positions in private
sector, the decision to impose ban cannot be said to be justified in
any manner.
(viii)- The controversy with regard to imposition of moratorium in
starting fresh pharmacy course came up for consideration before
the Hon'ble Apex Court in the case of Pharmacy Council of
India vs. Rajeev College of Pharmacy & Ors., reported in AIR
2022 SC 4321 wherein it has been observed that imposing such
restriction amounts to violation of Article 19(1)(g) of the
Constitution of India. Further such ban / imposition of moratorium
amounts to violation of fundamental right to establish educational
institutions. The establishment of educational institutions can
always be subject to reasonable restrictions, which are found to be
necessary in the public interest. However, even in those cases it is
to be seen whether the authority imposing such restriction is
competent to do so in accordance with law or not.
In view of the aforesaid judgment passed by the Hon'ble
Apex Court, the impugned order deserves to be quashed and set-
aside on this ground alone.
(ix)- Such ban cannot be imposed by an executive order as the
Pharmacy Act, 1948 does not provide for any provision conferring
power to impose such ban in issuing NOCs and therefore, without
any legislative backing, the impugned order could not have been
passed.
(x)- The impugned order has been passed by the Medical
Education Department in furtherance of decision taken in the
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meeting conducted on 24.03.2025 in the presence of Health
Minister, however, by an executive order, such ban cannot be
imposed.
4. Per contra, learned Additional Advocate General Mr. N.S.
Rajpurohit appearing for the respondent-State and Mr. Mahendra
Bishnoi appearing for the respondent - RUHS made following
submissions:-
(i)- The impugned order is perfectly justified and has been
passed in accordance with law. This decision is a conscious policy
decision and not merely an executive instruction. The decision
cannot be said to be arbitrary or discriminatory in any manner,
more particularly when such decision has been taken in a meeting
presided by the Health Minister and has been applied uniformly on
all private colleges.
(ii)- As mentioned in the Minutes of Meeting, data was collected
by the Rajasthan Pharmacy Council and based on said data, the
decision was taken. The Rajasthan Pharmacy Council is the
governing body, which is a regulatory authority on the State level
and has all the data. Based on the data obtained from Rajasthan
Pharmacy Council, the State Government took a conscious
decision and the impugned order was passed. Further, the order
has been passed in the larger public interest and therefore, no
interference is required and the writ petition is required to be
dismissed at the threshold.
(iii)- So far as judgment cited by the learned counsel for the
petitioner is concerned, the Hon'ble Apex Court in paras 56 & 57
therein has observed that in case it is needed to impose such
restrictions so as to prevent mushroom growth of pharmacy
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colleges, such restrictions can be imposed in the larger public
interest. Granting of NOC is not a mere formality and the State
authorities/Council can always examine the case and may allow or
reject application seeking grant of NOC. It is further stated that
merely because an institution has a right to establish an
educational institution does not mean that such an application has
to be allowed. If in a particular area there are more than sufficient
number of institutions already existing, the Central Council can
always take into consideration as to whether it is necessary or not
to increase the number of institutions in such area.
Based on above submissions, it was prayed that writ petition
be dismissed.
5. Heard learned counsel for the parties and perused the
material available on record.
6. There are three questions which primarily require
consideration in the present writ petition, firstly, whether the State
Government is competent to impose ban on grant of NOC for
degree course of B-Pharmacy by passing an executive order in
absence of legislative competence to do so; secondly, whether the
action of the State Government in confining the ban on private
colleges alone amounts to arbitrary and discriminatory exercise of
power; and thirdly, whether the State Government can impose ban
in entire State on grant of NOC considering mushrooming of
B.Pharma degree-holders and limited scope of employment ?
7. It would be appropriate to first examine the judgment cited
by learned counsel for the petitioner as passed by the Hon'ble
Apex Court in the case of Pharmacy Council of India (supra).
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For ready reference paras 7, 9, 34, 37, 41, 42, 43, 48, 55, 56 & 57
are reproduced as under :-
"7. Shri Maninder Singh, learned Senior Counsel submits that
the decision was taken by the Appellant-PCI after a subcommittee
of experts was appointed to study the issue. It is submitted that
after the sub-committee recommended moratorium in view of
mushrooming growth of pharmacy colleges, the Central Council of
the Appellant-PCI, after taking into consideration all these
aspects, recommended a moratorium. He submits that this was
done in order to prevent a situation which would lead to
uncontrolled growth of pharmacy colleges, resultantly producing
many pharmacists, who will be without any employment. It is
submitted that these factors have not been taken into consideration
by the High Courts in the impugned judgments.
9. Shri Maninder Singh further submitted that the power to
regulate would also include a power to prohibit. He relies on the
judgments of this Court in the case of Madhya Bharat Cotton
Association Ltd. v. Union of India and Anr. : AIR 1954 SC 634 and
in the case of Star India Private Limited v. Department of
Industrial Policy and Promotion and Ors. : (2019) 2 SCC 104 in
this regard.
34. It will be relevant to refer to the following observations of the
Constitution Bench, consisting of 11 Judges, of this Court in the
case of T.M.A. Pai Foundation (supra):
"18. With regard to the establishment of educational
institutions, three articles of the Constitution come into
play. Article 19(1)(g) gives the right to all the citizens to
practise any profession or to carry on any occupation,
trade or business; this right is subject to restrictions that
may be placed Under Article 19(6). Article 26 gives the
right to every religious denomination to establish and
maintain an institution for religious purposes, which
would include an educational institution. Article 19(1)(g)
and Article 26, therefore, confer rights on all citizens and
religious denominations to establish and maintain
educational institutions...."
37. It could thus be seen that the Constitution Bench in Islamic
Academy of Education (supra) holds that the State would be
entitled to impose restrictions and make Regulations both in terms
of Article 19(1)(g) and Article 30 of the Constitution of India for
maintaining excellence in the standard of education. It has been
held that regulatory measures are necessary for ensuring orderly,
efficient and sound administration.
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41. It is thus clear that though there is a fundamental right to
establish educational institutions, the same can be subject to
reasonable restrictions, which are found necessary in the general
public interest. However, the question that requires to be answered
is as to whether the same can be done by executive instructions or
not.
42. The question is directly answered by this Court in the case of
State of Bihar and Ors. v. Project Uchcha Vidya, Sikshak Sangh
and Ors. : (2006) 2 SCC 545 in paragraph 69, which reads thus:
"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."
[emphasis supplied]
43. It could thus be seen that this Court has categorically held
that a citizen cannot be deprived of the said right except in
accordance with law. It has further been held that 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. It has been held that such a law
must be one enacted by the legislature.
48. It could thus be seen that the Constitution Bench holds that
even an Executive cannot do something to infringe the rights of the
citizens by an executive action, though the State Legislature has
legislative competence to legislate on the subject.
55. Since we have held that the Resolutions/communications dated
17th July 2019 and 9th September 2019 of the Central Council of
the Appellant-PCI, which are in the nature of executive
instructions, could not impose restrictions on the fundamental
right to establish educational institutions Under Article 19(1)(g) of
the Constitution of India, we do not find it necessary to consider
the submissions advanced on other issues. We find that the
Resolutions/communications dated 17th July 2019 and 9th
September 2019 of the Central Council of the Appellant-PCI are
liable to be struck down on this short ground.
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56. Before parting, we may observe that there could indeed be a
necessity to impose certain restrictions so as to prevent
mushrooming growth of pharmacy colleges. Such restrictions may
be in the larger general public interest. However, if that has to be
done, it has to be done strictly in accordance with law. If and when
such restrictions are imposed by an Authority competent to do so,
the validity of the same can always be scrutinized on the
touchstone of law. We, therefore, refrain from considering the rival
submissions made on that behalf.
57. It is further to be noted that the applications seeking approval
for D. Pharm and B. Pharm courses are required to be
accompanied by a "No Objection Certificate" ("NOC") from the
State Government and consent of affiliation from the affiliating
bodies. While scrutinizing such applications, the Council can
always take into consideration various factors before deciding to
allow or reject such applications. Merely because an institution
has a right to establish an educational institution does not mean
that such an application has to be allowed. In a particular area, if
there are more than sufficient number of institutions already
existing, the Central Council can always take into consideration as
to whether it is necessary or not to increase the number of
institutions in such an area. However, a blanket prohibition on the
establishment of pharmacy colleges cannot be imposed by an
executive resolution."
7.1. A perusal of the above judgment, more particularly paras as
referred above, clearly indicate that the Hon'ble Apex Court had an
occasion to examine similar issue as raised in the present writ
petition. The moot question as framed in para 33 was "whether
the moratorium, as imposed by the Central Council of the
Appellant-PCI, could have been imposed by the said Resolution,
which is in the nature of an executive instruction of the Central
Council."
7.2. While noting the elaborate submissions made by the
respective parties, the Hon'ble Apex Court went on to consider the
earlier judgment passed by the Hon'ble Apex Court in T.M.A. Pai
Foundation & Ors. Vs. State of Karnataka & Ors, reported in
(2002) 8 SCC 481 so also the Constitution Bench judgment in the
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case of Islamic Academy of Education & Anr. Vs. State of
Karnataka & Ors., reported in (2003) 6 SCC 697 and came to
the conclusion that right to establish educational institutions is a
fundamental right, however, the same is subject to reasonable
restrictions, which are found to be necessary in the larger public
interest.
7.3. While stating it to be a fundamental right, the Hon'ble Apex
Court went on to examine the competence of the authority in
imposing such ban by executive instructions and concluded that
such executive ban can be imposed only if it has legislative
competence.
8. As argued by learned counsel for the petitioner, under the
Pharmacy Act, 1948 there is no power either with the Pharmacy
Council of India or with the State Government to impose such ban
and that being so, the State Government was not competent to
pass the impugned order.
8.1. It is noted that learned counsel for the respondents have
relied on paras 56 & 57 of the above cited judgment. A perusal of
the said paras clearly indicates that the decision as to impose ban
in order to prevent mushrooming growth of pharmacy colleges can
be taken in the larger public interest. However, the same is to be
done strictly in accordance with law.
8.2. It is further observed in para 57 of the said judgment that
Council can always take into consideration various factors before
deciding to allow or reject applications seeking grant of NOC.
However, the decision as to whether it is necessary or not to
increase the number of institutions in a given area can be taken by
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the Council, however, a blanket prohibition on the establishment of
pharmacy colleges cannot be imposed by an executive resolution.
8.3. The Allahabad High Court also had an occasion to deal with
similar issue in the case of Karmyog Sewa Samiti Vs. State of
U.P. and Ors. (WRIT C No. 7273/2025), which has been
decided on 19.08.2025. The Allahabad High Court while following
the aforementioned judgment passed by the Hon'ble Apex Court,
held as under:
"11. Considering the law, it is fairly well settled that the right to
establish institution is a part of Article 19(1)(g) of the Constitution
and that the technical institutes including the Pharmacy Council
established under the Pharmacy Council of India Act have
supremacy.
...
15. With regard to the moratorium imposed by the State
Government through a policy decision till the Deloitte India
Consultant gives a report, the same is also violative of the
judgment of the Supreme Court in the case of Rajeev College of
Pharmacy (supra) wherein a moratorium was enforced by PCI
and was repelled by the Supreme Court in the light of rights
enshrined under Art. 19(1)(g) of the Constitution. Once the right
of placing the pharmacy education under moratorium by the
authority which is empowered has been repelled, a similar stand
taken by the State Government which does not have any
supremacy with regard to pharmacy courses cannot be held to be
justified.
16. In view of the settled position, the position of the State
Government declaring the academic session 2025 - 26 as zero
period is clearly without jurisdiction and also violative of the
rights enshrined under Article 19(1)(g) of the Constitution.
Besides the same, the said decision with regard to establishing the
course or declaring the zero period is also vested in the PCI by
virtue of Section 11.
17. Thus, for all the reasons recorded above, the action of the
State Government for declaring the academic session 2025 - 26
for the B.Pharma and D.Pharma as zero period is clearly
violative of Article 19(1)(g) of the Constitution and is
accordingly set aside."
8.4. Similarly, in another case wherein issue was raised qua
imposition of moratorium by the State Government on grant of
NOC for nursing courses, the Allahabad High Court in the case of
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Babban Singh Memorial Education Sewa Trust Vs. State of
U.P.; Writ - C No.9010/2024 (decided on 26.09.2025) while
deciding the matter relied on the judgment passed by the Hon'ble
Apex Court in the case of Pharmacy Council of India (supra).
The Allahabad High Court after discussing the provisions of the
Indian Nursing Council Act, 1947, held as under:
"36. On a plain reading of the provisions contained in the
Sections referred to above, it is plainly clear that it is the
Indian Nursing Council established at the Central and the
State level which are empowered to regulate the study of the
nursing courses for midwives, nurses and health visitors. In
the 1947 Act, no power has been conferred upon the State
except on the State Council established under law by the State
to regulate the registration of nurses, midwives and health
visitors.
37. It is essential to notice that on the lines of the Council
established under the 1947 Act, Pharmacy Council has been
established under the Pharmacy Act with powers which are
similar to the Council granted under the 1947 Act as well as
the Council established under the NCTE. The Councils
established under the Act came up for consideration before
the Supreme Court in the case of Pharmacy Council of India
v. Dr. S.K. Toshniwal Educational Trusts Vidharbha Institute
of Pharmacy and Ors.12 with regard to establishing an
institution being guaranteed under Art.19(1)(g) of the
Constitution of India and supremacy of the Councils
established under the Pharmacy Act to the following effect:
...
40. In the light of the provisions which are similar, the issue
as raised came up for consideration before the Supreme Court
in the case of Rajeev College of Pharmacy and Ors. (supra),
wherein the action of the PCI itself in imposing a moratorium
in opening of pharmacy colleges through executive
instructions was considered in the light of the rights flowing
from Art. 19(1)(g) of the Constitution of India and the
Supreme Court after considering the submissions including
the submission that there was a mushrooming of the
pharmacy colleges which required imposition of moratorium,
as was argued before the Supreme Court, observed that the
moratorium was imposed in exercise of executive powers and
not by framing any regulation as are prescribed under the Act
and the following was observed in Paras 33, 34, 35, 36, 38,
40, 41 & 42:
...
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41. In the present case, based upon the law as explained in
the case of Rajeev College of Pharmacy (supra) which flows
from the similar provisions contained in the Pharmacy Act, it
is clear that right to establish educational institutions is
guaranteed under Art. 19(1)(g) of the Constitution of India;
the same can be restricted only by taking recourse to Art.
19(6) of the Constitution of India by framing regulations. In
the present case, no regulations have been framed and the
imposition of moratorium is based upon executive instructions
which cannot substitute the requirement of Art. 19(6) of the
Constitution of India.
42. On a plain reading of the provisions of the Act, it is clear
that it is only the Indian Nursing Council which is empowered
to take decisions with regard to regulating and running of
courses under the Act in question and the State Government
has no authority to impose moratorium and certainly not
indefinitely and certainly not through executive instructions.
43. It is also essential to notice the foundation based upon
which the executive orders have been passed. The same also
cannot be termed as reasonable inasmuch as no data appears
to have been placed for taking a drastic decision of
imposition indefinite moratorium. The only recommendation
of the UPTSU without there being any data whatsoever either
being considered or at least recorded in either two orders,
cannot beheld to be justifiable exercise of powers. ...."
8.5. The Allahabad High Court in both the above-quoted
judgments has categorically held the action of State Government
imposing moratorium being without jurisdiction as the same had
been taken through executive instruction.
8.6. Further, in a similar controversy wherein moratorium was
imposed vide a resolution on grant of approval to new Law
Institutes by the Bar Council of India was put to challenge before
the Punjab and Haryana High Court on the ground that the same
was done without any legislative backing. In the case of
Chandigarh Education Society Vs. Bar Council of India &
Ors.; CWP No. 7441/2020 (decided on 04.12.2020) while
observing that though the Bar Council of India has power under
the Legal Education Rules, 2008 to issue guidelines however,
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under the garb of said Rules, a complete ban on new law colleges
could not be imposed. The Court in the said case, observed as
under:
" Counsel for respondents No. 1 and 2 has failed to point out
any provision in the Act that empowers the BCI to impose
complete ban on setting up new institutes for imparting Legal
Education under Section 7(1)(h) or any other provision in the
Act in execution of its functions to promote legal education
and lay down standards of such education.
...
No doubt, the BCI can issue guidelines/circulars etc. and
press for compliance thereof as well as 2008 Rules either at
the grant of approval to a New College or adherence thereof
by the Colleges/Institutes for Legal Education already
existing throughout the country but under that pretext it can
not impose a complete ban on opening of New Institutes for
imparting Legal Education. It is pertinent to mention here
that society has not approached this court to seek any relief
against issuance of any circulars/guidelines or 2008 Rules.
Even in the resolution (Annexure P-12), the BCI has noted
that when the Bar Council of India has refused to grant
approval to more than 300 institutions which had obtained
NOC from the State Governments and affiliation by the
university, the institutes approached some of the High Courts
and adverse directions were issued to the BCI to consider the
proposals of New Law Colleges. Counsel for respondents
No.1 and 2 has failed to advance any arguments much less
meaningful to give legal justification in regard to
resolution/decision of the BCI to impose moratorium for a
period of three years for grant of approval to New Law
Colleges/Centers/Institutes."
8.7. In the present case although the issue of grant of NOC is
involved, however, this Court while dealing with the observations
made by the Punjab and Haryana High Court, finds that the action
of State Government imposing the ban is without any legislative
backing therefore, the same cannot stand touchstone of law.
8.8. In view of the above discussion and decision rendered in the
case of Pharmacy Council of India (supra), this Court has no
hesitation in holding that the State Government is not competent
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to impose such a ban, more particularly, when it does not has the
legislative competence to do so.
9. The another issue, which has been raised by learned counsel
for the petitioner is with regard to the arbitrary and discriminatory
approach. It is to be noted that by the impugned order, the ban
has been imposed on private colleges.
9.1. Learned counsel for the respondents have though relied on
the note-sheet as placed on record along with the additional
affidavit in order to justify the impugned decision, however, the
respondent authorities have not been able to justify the decision
with regard to ban being applied on private institutes alone.
Although attention of this Court has been brought to the minutes
of the meeting to show that the State Government is proposing to
communicate with regard to non-requirement of NOC by the
Universities, however, there is no positive direction to extend the
imposition of ban on such universities. That being so, if the
impugned order is allowed to exist, the order would be prohibiting
the private colleges to start fresh B-Pharma course, however, at
the same time the private universities or Government universities
would be at liberty to establish new pharmacy course. That being
the ultimate impact of the impugned order, would necessarily
amount to arbitrary and discriminatory action on part of the State
Government and that being so, there is no justification in imposing
such ban on the private colleges.
10. The State Government has the authority to issue NOC which
is only one of the steps before obtaining approval from the PCI.
The rationale behind such requisite is to ensure that the institution
has sufficient facilities and infrastructure to impart education. Such
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authority of State Government cannot override the existence and
power of the PCI which is the expert regulating authority
incorporated through a special law. The apex governing body
regulating the field of pharmacy is the PCI and the final decision to
grant approval to colleges also rests with it. True it is that the
State Government has authority to take policy decision, however,
such decision has to be rational and cannot be taken without
having jurisdiction to do so. The State Government can, in no
manner, without deriving authority through proper legislation
impose a blanket ban on grant of NOC, that too, taking only the
private colleges under the umbrella of such ban.
11. In view of the discussion made above, the writ petition
deserves acceptance and the same is allowed. The impugned order
dated 26.04.2025 (Annexure-12) restricting the petitioner -
Institution is held to be arbitrary and violative of Article 14 of the
Constitution of India.
12. Needless to observe that as an outcome of the above, the
necessary NOC is required to be issued to the petitioner-Institution
if it otherwise fulfills the requisite criteria.
13. It is noted that a submission was made by learned counsel
for the petitioner that the petitioner had already deposited the fee
for the present academic year which has not been refunded. As
the counseling for the present academic session is already over
therefore, it is requested, at this stage, by the learned counsel for
the petitioner-Institution that appropriate directions may be issued
to the State Government to consider the petitioner's case for the
subsequent year and the fee deposited for the current year may
be adjusted for the upcoming academic session.
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14. The request made by learned counsel for the petitioner
appears to be reasonable, more particularly, considering the fact
that writ petition was filed on 22.05.2025 i.e. within one month
from the date of passing of impugned order and therefore, if the
petitioner fulfills all the requisite norms as required under the
Pharmacy Act, 1948 and is entitled to establish pharmacy course,
the fees deposited for the academic year 2025-26 for grant of NOC
be adjusted for the subsequent year.
15. Pending application(s), if any, stand(s) disposed of.
(SUNIL BENIWAL),J
Rmathur/-
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