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Chhattisgarh HC set aside orders passed by the Pharmacy Council of India (PCI) putting a ban on the opening of new Pharmacy Colleges for a period of 5 years.

The Chhattisgarh High Court has set aside the orders passed by the Pharmacy Council of India (PCI) in the year 2019 putting a ban on the opening of new Pharmacy Colleges for a period of 5 years in the country.

The single-judge bench of Justice P. Sam Koshy held that the two orders/resolutions were not sustainable in the eye of law. The decision has come in a petition moved by Chouksey College Of Pharmacy, Bilaspur Chhattisgarh. 

The validity and legality of two orders/resolutions passed by the respondent No.1-Pharmacy Council of India (PCI) dated 17.07.2019 and 09.09.2019 was under challenge in the present writ petition.

Through the first resolution dated July 17, 2019, on the ground that sufficient qualified pharmacists are available, the PCI had put a moratorium on the opening of new pharmacy colleges for running Diploma as well as Degree courses in pharmacy in the country for a period of five years beginning from the academic year 2020-21.

This resolution was modified on September 9, 2019 and the same was made non-applicable on certain categories of institutions and in respect of certain areas in the country such as Government institutions and the institutions in North-Eastern region.

When Chouksey College Of Pharmacy had approached the PCI for opening an institution for imparting courses in Pharmacy, it was informed about the mortarium. Aggrieved by the same, the college moved the High Court challenging PCI’s orders. 

Allowing college’s writ petition, Court took note of its contention that the two orders would not have a force of law. Court pointed out that the orders were neither published in the official gazette nor had received the approval of the Central Govt which is essential for any resolution issued under Sections 10 and 11 (of the Pharmacy Act, 1948), subordinate legislation or decision to be enforceable. Therefore Court held that the orders were not legally enforceable.

Pharmacy Act 1948 nowhere confers the power upon PCI to ban or put a moratorium so far as opening of new Pharmacy institution in the Country. The petitioners herein is a private unaided self financing institution with no financial obligation owed to the State Government.

The petitioner who intends to establish and commence and operate an institution imparting Pharmacy course would be otherwise bound by only the requirement of the various statutory provisions as also the regulations issued by the various statutory agencies otherwise required for the purpose of establishment and commencement of an institution related to the Pharmacy course.

Court also agreed with College’s other contention that PCI does not possed the power to pass such orders. Court held that nowhere does the entire Pharmacy Act, empower the Central Council ( or PCI) to frame Regulations without it being published in the Official Gazette and without having the approval of the Central Government.

Referring to Section 10(2), 12 and 13 of the Act, Court held that nowhere under the Act is any power conferred implicitly or explicitly on the PCI for imposing a blanket ban of the nature, which they imposed.

Court observed, “Since the impugned orders create a prohibition having the effect of affecting substantive and fundamental rights enjoined with the institutions or entities intending to open new pharmacy institutions, therefore they need to derive authority from the parent enactment or the rules framed thereunder.”

From the plain reading of Article 13 of Constitution of India it clearly reflects that anything which is inconsistent to the provisions of the Constitution shall be to the extent of such inconsistency would be void.

Further, Court rejected the reasoning put behind the decision by the PCI. The PCI had reasoned that during the 106th 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 and it was observed that 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. Thereafter, the decision over a moratorium was taken.

Court said, “The PCI thought of imposing moratorium in the entire country and at the same time it was resolved not to apply the said resolution in the North-Eastern Region of India.”

Court added that if non-availability of sufficient source of employment being one of the major reasons for putting an embargo, the PCI at the same breath is not justified when it permits the existing institutions imparting Pharmacy courses permitting them to apply for further increase of the intake capacity.

In view of Articles 13 and 19 of the Constitution of India, Court held that the PCI orders amount to denuding any entity of their fundamental right to Occupation, i.e. opening or establishing of a new pharmacy institution.

In Delhi Administration v. Shri Ram[(2000) 5 SCC 451] : AIR 2000 SC 2143, it has been ruled that it is a well recognised principle that the conferment of rule making power by an Act does not enable the rule making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto.

In Sukhdev Singh v. Bhagat Ram Sardar Singh Raghuwanshi (1975) 1 SCC (L&S) 101 : AIR 1975 SC 1331, the Constitution Bench has held that: the statutory bodies cannot use the power to make rules and regulations to enlarge the powers beyond the scope intended by the legislature. Rules and regulations made by reason of the specific power conferred by the statute to make rules and regulations establish the pattern of conduct to be followed.”

Even though the said restriction is for a limited period, i.e. 5 years, then also for the restriction to operate even for a minimal period of time, it has to figure within the four corners of Article 19(1)(g), Article 19(2) read with Article 13(3)(a) of the Constitution of India.

Since the ‘executive instructions’ failed to meet the basic character required to impinging upon the fundamental rights, therefore on the said ground, the ‘executive instructions’ cannot hit or adversely affect the fundamental rights of the Petitioners to start a new Pharmacy Institution at the time and moment of their choice. For this ground, therefore the impugned DO’s must be treated to be ineffective and bereft of any fangs”Court noted.

Lastly, Couer noted that the two impugned resolutions were already put to test in a bunch of writ petitions before the High Court of Delhi (the lead case Shaheed Teg Bhadur College of Pharmacy Vs. Pharmacy Council of India) and High Court of Karnataka (the lead case which being Shifa College of Pharmacy and Others Vs. Pharmacy Council of India and others) and were set aside. 

Therefore, for all the aforesaid reasons and the judicial pronouncements, Court allowed the writ petition moved by the college. 

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