Chh HC | Whenever substantive obligation/rights/ interests are impaired/adversely affected through any piece of subordinate legislation, then its source must be traced within express provisions in four corners of parent enactment

Chhattisgarh High Court: Sam Koshy P, J., allowed the petition and quashed the impugned orders imposing a moratorium on the establishment of new Pharma colleges and institutions for 5 years.

The facts of the case are such that the petitioners are a private unaided Self Financing Institution and a part of charitable trust which has educational institutions which impart other educational courses with an intention of the opening of an institution imparting courses of Pharmacy i.e. B. Pharm (Bachelor Pharmacy courses) and D. Pharm (Diploma of Pharmacy courses) approached the PCI wherein they were informed of the impugned moratorium order. The Pharmacy Council of India i.e. PCI has put a moratorium on the opening of new Pharmacy Colleges for running Diploma as well as Degree courses in Pharmacy for a period of 5 years beginning from the Academic Session 2020-21. The validity and legality of these two orders/resolutions is under challenge in the present writ petition.

It was remarked that in the State of Chhattisgarh, there is admittedly lack of basic medical facilities and basic infrastructure required for providing the medical facilities to the general public particularly in the Semi-Urban, Rural and the Interior Areas of the State. There is an acute shortage of Doctors, Paramedical Staff and People with Pharmacy background and in the backdrop of the COVID-19 Pandemic; the State has also witnessed the alarming need and necessity of Doctors, Paramedical Staffs and People with Pharmacy background throughout the State of Chhattisgarh, particularly into the Rural and Interior Areas which are predominantly tribal belts. Thus, the State of Chhattisgarh has its own peculiar demands and necessities when it comes to issues relating to health, medical and Pharma care. Thus the blanket moratorium imposed by the PCI would further create a vacuum in the field of Pharma Care in the State of Chhattisgarh.

Reasons/ submissions for challenge

1. If it is a regulation framed and issued by the PCI under Section 10 of Pharmacy Act, it needs to be published in an official Gazette failing which, it cannot be accepted to be a regulation in terms of Section 10, and in turn would not have a force of law.
2. The power conferred upon the PCI to regulate the profession of Pharmacy would not automatically include the power to prohibit as well.
3. The two orders being violative of Article 14 of the Constitution of India as it has led to ex facie discrimination particularly in the light of the relaxation that was given in the impugned order.
4. The impugned order is violative of Article 19(1) (g) of the Constitution of India as it infringes the right of the petitioners of practicing any profession or to carry on any occupation, trade or business i.e. establishment of an educational institution in the instant case.
5. The resolution passed by the respondent Pharmacy council is also violative of Section 10 & Section 11 of the Pharmacy Act as there has been no consultation done with Central Government or the State of Chhattisgarh or any of the State Government before imposing the said ban.

Submissions by Respondent PCI

1. The very purpose of having the Pharmacy Act was to to regulate the institutions imparting pharmacy courses and it includes the power of prohibition in the event circumstances so require.
2. It was a policy decision of the PCI to impose moratorium and the decision was to ensure that legislative object of regulating entry into the profession of Pharmacy with minimum standard of education is fulfilled.
3. The resolutions passed by the Pharmacy Council have been duly communicated to the Government of India, Ministry of Health who have till now not raised any objection in respect of the two resolutions.
4. The policy decision imposing a moratorium of 5 years would itself review its decision so far as the extending of the moratorium is concerned. Since almost 2 ½ -3 years have already passed there is no scope of judicial interference at this juncture. Thus, as the moratorium is only for 5 years, it would establish that it is not an absolute prohibition.
5. Various statutory expert bodies, officials and representatives of the Central Govt. and each of the State Pharmacy Council, each of the State Govt. have taken the decision. Therefore, for all practical purposes it has to be presumed that it has all the concurrence and approval of the Central Govt. as also of the State Govt.

The Court remarked the very object and reason behind framing of the Pharmacy Act, 1948 was to ensure that only persons with a minimum standard of professional education should be permitted to practice the profession of pharmacy.

Issue 1

Whether the two resolutions of the PCI can be considered to be regulation under Section 10 of the Pharmacy Act and if be made applicable in the entire country, then the requirement as is otherwise laid down under Section 11 has been met or not?

The plain reading of Sections 10 and 11 would clearly indicate that the regulations under Section 10 must get the approval of the Central Govt. so as to make it enforceable.

The Court observed that In the instant case admittedly there is no such official approval received from the Central Govt. at the first instance nor is there any such notification published in the official Gazette by the State Govt. In the absence of either the approval from the Central Govt. or the required notification under Section 11 by the State Govt., it would be difficult to presume that a resolution passed by the Central Council automatically becomes enforceable. It was further observed that Once when the resolutions are made applicable for the entire country, the same gets a colour of subordinate legislation and it cannot be treated as directory nor can the requirement as is envisaged under Section 10 & 11 be treated as directory.

Issue 2

Does the Pharmacy Council of India have the power to pass Regulation of the nature of moratorium for the establishment of new Colleges and Institutions imparting the pharmacy courses?

After perusing various provisions of the Pharmacy Act, it is evidently clear that nowhere does the Act empower the Pharmacy Council of India to take decisions banning the individuals in establishing new Institutions with an aim of imparting the courses relating to pharmacy or the power to ban or restrict establishment of new colleges for Pharmacy.

The Court observed that 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. It is trite law that whenever substantive obligation, rights or interests are being impaired or adversely affected by the decisions/orders of delegatee under enactment or through any piece of subordinate legislation, then its source must be traced within express provisions in the four corners of the parent enactment, in the absence of which, it cannot be sustained.

The Court in regards to the arguments of violation of constitutional provisions observed that any restriction and embargo so far as establishment and commencement of educational institutions are concerned; the same can only be imposed by State. Thus, such, regulations and resolutions in the nature of executive instructions issued by the PCI amounts to impingement upon the fundamental right of citizen and or a juristic person.

The Court thus held “two resolutions under challenge in the present writ petition Annexure P-3 and P-4 dated 17.07.2019 and 09.09.2019 are also not sustainable in the eye of law and the same deserves to be and are accordingly quashed/set aside with consequences to follow.” [Chouksey College of Pharmacy v. Pharmacy Council of India, 2022 SCC OnLine Chh 762, decided on 22-04-2022]

Appearances

For Petitioners: Mr. Siddharth R. Gupta and Mr. Pranjal Agrawal

For Respondents: Mr. Rajkumar Mishra and Mr. Tushar Dhar Diwan

Arunima Bose, Editorial Assistant has reported this brief.