Case BriefsSupreme Court

   

Supreme Court: In an appeal alleging that the Bihar State Pharmacy Registration Council is issuing registration certificates on the basis of fake certificates, the Division Bench of M.R. Shah and M.M. Sundress, JJ., issued notice to the Bihar government asking why no steps had been taken to desist functioning of fake pharmacies in the State.

The appellants had also alleged that it was also alleged that the Council is granting certificates on the basis of experience gained by the person, which is completely against the provisions of the Pharmacy Act, 1948.

Noticeably, at the relevant time, the Pharmacy Council of India/Bihar State Pharmacy Council constituted a fact-finding committee, and its report was already forwarded to the State Government. However, nothing is on record regarding the steps taken by the State Government to stop the fake pharmacists functioning in the State.

The Court opined that permitting the fake pharmacists to run the medical stores and/or functioning, would be playing with the life of the citizens. Hence, the State ought to have been vigilant to curb and stop the fake pharmacists.

Resultantly, the Court directed the State to place on record by way of counter affidavit, what steps are taken to stop the fake pharmacists from functioning and more particularly, on the basis of the report submitted by the fact-finding Committee. Further, the Court granted leave to join the Bihar State Pharmacy Council as respondent and issued a notice returnable on 21-11-2022.

[Mukesh Kumar v. State of Bihar, 2022 SCC OnLine SC 1586, decided on 07-11-2022]


Advocates who appeared in this case :

Rachitta Rai, AOR, Advocate for the Appellants;

AORs Abhinav Mukerji and Zoheb Hossain, Advocates Pratishtha Vij, Bihu Sharma, Akshay C. Shrivastava, Advocates, for the Respondent(s).


*Kamini Sharma, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: The bench of BR Gavai* and PS Narasimha, JJ has held that the right to establish an educational institution is a fundamental right under Article 19(1)(g) of the Constitution of India and reasonable restrictions on such a right can be imposed only by a law and not by an execution instruction.

What was under challenge?

The ruling came in a case where the Court was called upon to decide whether the moratorium, as imposed by the Pharmacy Council of India (PCI), could have been imposed by resolution/communications dated 17.07.2019 and 09.09.2019, which is in the nature of an executive instruction of the Central Council.

Resolution/Communication dated 17.07.2019: A moratorium on the opening of new pharmacy colleges for running Diploma as well as Degree courses in pharmacy for a period of five years beginning from the Academic Year 2020-2021.

Resolution/communication dated 09.09.2019:  

  1. Modified the aforesaid moratorium, thereby exempting its application to

(i) Government Institutions;

(ii) Institutions in North Eastern region; and

(iii) States/Union Territories where the number of institutions offering D. Pharm and B. Pharm courses (both combined) is less than 50.

  1. The institutions which had applied for opening colleges offering D. Pharm and/or B. Pharm courses for 2019-2020 academic session were allowed to apply for conducting diploma as well as degree courses in Academic Session 2020-2021 and existing approved pharmacy institutions were allowed to increase the intake capacity as per PCI norms and/or to start additional pharmacy course(s).

The 4 High Court judgments in question

The Karnataka High Court[1]; Delhi High Court[2] and Chhattisgarh High Court[3], while allowing the writ petitions filed by the respondent-institutions and quashing and setting aside the Resolutions/communications of PCI’s Central Council, in a nutshell, held:

 (i) That the right to establish educational institutions is a fundamental right guaranteed under Article 19(1) (g) of the Constitution of India;

(ii) That there can be reasonable restrictions on such a right. However, such a restriction can be imposed only by law enacted by the competent legislature;

(iii) Resolution/Communication dated 17.07.2019, vide which the moratorium was imposed is an executive instruction and could not be construed as a law and, therefore, the moratorium imposed by an executive instruction is not sustainable in law.

Bombay High Court[4],  on the other hand, upheld the moratorium. It was argued before the Court that said judgment of the Bombay High Court has not been considered by all the three High Courts of Karnataka, Delhi and Chhattisgarh.

Supreme Court’s Analysis and Verdict

Holding that the right to establish an educational institution is a fundamental right under Article 19(1)(g) of the Constitution of India and reasonable restrictions on such a right can be imposed only by a law and not by an execution instruction, the Court held that the Bombay High Court, did not lay down the correct position of law and that the view taken by the High Courts of Karnataka, Delhi and Chhattisgarh laid down the correct position of law.

Deciding against PCI, the Court held that PCI could not impose restrictions on the fundamental right to establish educational institutions under Article 19(1)(g) of the Constitution of India. Hence, the Resolutions/communications dated 17th July 2019 and 9th September 2019 of the Central Council of PCI have been struck down.

On Necessity to impose restrictions

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.

On requirement of “No Objection Certificate” 

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.

[Pharmacy Council of India v. Rajeev Pharmacy College, CIVIL APPEAL NO. 6681 OF 2022, decided on 15.09.2022]


*Judgment by: Justice BR Gavai

For PCI: Senior Advocate Maninder Singh

For Respondents: Senior Advocates Rakesh Dwivedi and Vinay Navare, Advocates Amit Pai, Sanjay Sharawat, Siddharth R. Gupta, and Shivam Singh


[1] Writ Appeal No. 746­748 of 2020, dated 09.11.2021

[2] Writ Petition (Civil) No.175 of 2021, dated 07.03.2020

[3] 2022 SCC OnLine Chh 762

[4] 2020 SCC OnLine Bom 2564

Case BriefsHigh Courts

Gujarat High Court: A.S. Supehia, J. allowed the writ petitions filed by D. Pharm students aggrieved by their non-registration as Pharmacist under the Pharmacy Act, 1948 (the Act) irrespective of their training.

The case of the petitioners was that the respondent-the Gujarat State Pharmacy Council was not registering them as Pharmacist under the Act despite having been undertaken the necessary training of 500 hours for three months from the respective medical stores. It is the case of the respondent authorities that the training from the medical stores, from which the petitioners have undertaken, are not approved and hence, the petitioners cannot be registered as Pharmacist.

The Court noted that the entire issue was with regard to their undertaking practical training from the medical stores, which were not approved and hence, they were not registered as Pharmacist.

The Court stated that respondent 2  in its affidavit-in-reply admitted the fact that the Pharmacy Council of India (PCI) no medical store under regulation 4.4 of the Pharmacy Practice Regulations, 2015 (the Regulation of 2015) for the purpose of imparting practical training to the students of Diploma in Pharmacy Course like the present petitioners has been approved. Thus, the Court was of the opinion that petitioners cannot be faulted for the action of the respondent authorities in not approving the medical stores under regulation 4.4 of the Regulation of 2015 and hence, the petitioner has no option to take their training from the respective medical stores.

The affidavit-in-reply also mentioned that the Council will be notifying the process of granting approval of Pharmacy/Chemist and Druggist through online mode and necessary technology support for the same is under development and validation.

Finally, in the affdiavit-in-reply, it was stated that in order to avoid hardship to the students, who have already undergone or undergoing the D.Pharm course, the practical training undertaken by a student from a Pharmacy, Chemist and Druggist licenced under the Drugs & Cosmetics Act, 1940 and rules made thereunder shall be considered as approved for registration of students by the State Pharmacy Councils as per the precedence, provided the student has undergone the D.Pharm course in an institution approved by the PCI under Section 12 of the Act.

The Court allowed the writ petitions in view of the affidavit filed by the PCI and the impugned order(s) challenging in the respective petitions denying such registration of the petitioners as Pharmacist by the respondent 3 were quashed and set aside. It was directed that the petitioners shall be registered as Pharmacist under the State Pharmacy Council.

[Oza Nikun Dashrathbhai v. State of Gujarat, R/Special Civil Application No. 19626 of 2018, decided on 03-08-2022]


for the Petitioner: Hardik D Muchhala

for respondent 1: Sahil Trivedi

for respondent 2:  Devang Vyas

for respondent 3: Rashesh H Parikh, Hemang H Parikh

for respondent 4: SAN Associates LLP


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case related to PCI’s decision to impose 5-year moratorium on the opening of new Pharmacy Colleges for degree and diploma courses, the Division Bench comprising of L. Nageswara Rao and Justice B.R. Gavai, JJ., imposed a stay on the Chattisgarh High Court’s interim order directing the PCI to permit the respondents to submit their application required for the necessary permission and approval and also for grant of necessary affiliation for the academic session 2022-23.

The Pharmacy Council of India (PCI) had approached the Court to assail the impugned interim order of the Chattisgarh High Court in Chouksey College of Pharmacy v. Pharmacy Council of India, 2021 SCC OnLine Chh 3735, wherein the Court had directed the PCI to allow the Respondent herein to submit their application for approval and affiliation for the Academic Session of 2022 – 2023 and to conduct requisite formalities of inspection, etc. except for the granting of permission and approval for admissions.

The genesis of the case relates back to PCI’s notice imposing a 5-year moratorium on the opening of new Pharmacy Colleges for degree and diploma courses vide its decisions dated 17-07-2019 and 09-09-2019 in view of the mushrooming growth of pharmacy colleges, the escalating pharmacist to population ratio which is in excess of the standards of the World Health Organisation, the lack of job opportunities for qualified pharmacists, the vacant seats every year, among other cogent and scientific reasons.

The Respondent institution, desirous of starting a new pharmacy college for the Academic Year of 2021–2022 and aggrieved by the PCI’s decision to impose a moratorium had challenged the same before the High Court on the ground that in on identical set of facts in Shifa College of Pharmacy v. Pharmacy Council of India, W.A. No.746 OF 2020, the Karnataka High Court had held that PCI has the power to regulate, but not prohibit the opening of new colleges and had consequently, quashed the moratorium imposed by the PCI.

Relying on the judgment of the Karnataka High Court, the High Court, by an interim order, had directed the PCI to permit the respondents to submit their application required for the necessary permission and approval and also for grant of necessary affiliation for the academic session 2022-23. The Court further directed to process the application and conclude the requisite formalities of inspection etc., except for the granting of permission and approval for going in for the admissions. So far as the final order of approval and permission as required in terms of the Pharmacy Act was concerned, the same was held to be undertaken after the final outcome of the Writ Petition or the withdrawal of Order by the Pharmacy Council of India, whichever is earlier.

The appellant had challenged the impugned order on the following grounds:

  • The High Court failed to consider that SLP (C) 19671/2021 was pending in the Supreme Court against the judgement of the Karnataka High Court, and although there was no stay on the operation of the said judgement, the outcome of the same is pending and the impugned order would cause grave prejudice to the PCI.
  • The PCI’s decision to impose a moratorium is also the subject matter of challenge in 2500+ Writ Petitions in the Delhi High Court; the petitioners had relied on the judgement of the Karnataka High Court as well as on the impugned interim order of the Chhattisgarh High Court, seeking parity with the Respondent herein.
  • The Delhi High Court had directed the PCI to respond as to why the impugned interim order of the Chhattisgarh High Court should not be followed.

Additionally, the appellants contended that the impugned interim order had been passed without giving any reason insofar as relevant factors like a prima facie case, irreparable injury, balance of convenience, public interest etc. so as to come to the conclusion that granting of an interim relief was warranted in the case.

In the backdrop of above, the Supreme Court had imposed a stay on the impugned interim order with the direction to the High Court to hear the writ petition finally and dispose it of expeditiously, not later than four weeks. A notice, in this regard was also issued to the respondents.

[Pharmacy Council of India V. Chouksey College of Pharmacy, Special Leave to Appeal (C) No(s). 1050 of 2022, decided on 07-02-2022]


Appearance by:

For Appellants: Zoheb Hossain, AOR, Tulika Gupta, Advocate

For Respondent(s): Nidhesh Gupta, Sr. Advocate, Mrigank Prabhakar, AOR, Pai Amit, AOR, Siddharth R. Gupta, Sunita Gupta, Shivam Singh Baghel, Pranjal Agarwal, Aditya Bhat, Omkar Kambi, Suraj Naik and Pankhuri Bhardwaj, Advocates


Kamini Sharma, Editorial Assistant has put story together


Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: P. Sam Koshy allowed the interim application and stated that the final approval and permission is subject to the final outcome of the present petition.

The present Writ Petition was filed aggrieved by two separate orders which imposed a moratorium/ban on the opening of the new Colleges and Institutions for imparting B. Pharma and D. Pharma courses in the entire Country for a period of five years. The Petitioners have further sought for an interim direction to the Respondents to facilitate the Petitioners to apply for necessary approval and sanction for opening of a new Pharmacy institution imparting B. Pharma and D. Pharma courses and further to direct the Respondents to accept, process, scrutinize and submit a report on the basis of the scrutiny so far as the entitlement for grant of necessary sanction and approval for the opening of a new Pharmacy institution are concerned.

Counsel for petitioner Mr. Sidharth Gupta and Mr. Pranjal Agarwal submitted that the orders violate the fundamental right under Article 19(1) (g) guaranteed under the Constitution of India and is also in contravention to the provisions of the Pharmacy Act, 1948. He further submitted that the entire Act speaks of the Respondent 1 issuing regulation, regulating the courses of B. Pharma and D. Pharma and the Institutions imparting the said courses. However, at the same time, the Respondent 1 is not empowered to impose a ban on the establishment of the new Colleges and Institutions imparting the courses of Pharmacy. The same could have decided only by the Government and not the Agency monitoring the Pharmacy institutions.

Counsel for respondents Mr. Ramakant Mishra, Mr. Tushar Dhar Diwan and Ms. Samiksha Gupta submitted that that the two orders passed by Respondent 1 have been issued in the year 2019 and that they are already in force for a period of more than two years now and therefore there is no necessity for the staying of the effect and operation of the two Orders at this stage and the matter itself can be finally decided instead of deciding the interim application at this juncture. He further submitted that that the object and intension of the entire Act i.e. the Pharmacy Act, 1948, is to ensure regulations and those too educational regulations. Respondent No.1 has got all the powers to take appropriate decision in the larger interest of the public, particularly so far as the Institutions imparting the Pharmacy courses are concerned. According to Assistant Solicitor General, once when there is a power to issue instructions and regulations so far as the courses of B. Pharma and D. Pharma are concerned, it includes the power of the Agency i.e. Respondent No.1 to impose a ban and prohibition insofar as establishment of new Colleges are concerned. He further submitted that the very purpose of issuance of the two Orders dated 17.7.2019 and 9.9.2019 is to put a check and to bring a curve on the recent mushrooming of the Colleges and Institutions imparting the Pharmacy courses.

The Court observed that the Petitioners have invested huge amount of money for the purpose of putting up requisite infrastructure and the entire planning and other requirements for the purpose of imparting the Pharmacy courses have already been accomplished by the Petitioners. Subsequently, the Petitioners, for grant of necessary furnishings in order to start the Pharmacy courses, applied to the State Government for the requisite NOC which was thereby granted. The Petitioners establishment then approached Respondent 2 University for affiliation whereby the orders under challenge were communicated to the petitioners and the affiliation was rejected.

“From the plain reading of the two impugned Orders, it apparently shows that initially when the first Order was passed on 17.7.2019, the North Eastern region of the Country was excluded from the applicability of the moratorium/ban. However, when the second Order was passed on 9-9-2019 there have been many exceptions that have been carved out and the first Order was diluted to a great extent.”

The Court observed that in order to start an Institution, there are series of activities which have to be planned and executed before finally going in for the admissions of the students and in the instant case the Petitioners have completed the requisite infrastructure facilities in terms of the requirements under the guidelines laid down by the Pharmacy Council of India. It was  further observed that the approvals asked by the petitioner is to prevent wastage of time and in turn precious academic sessions as the time taken for approvals are huge and if the inspections and other formalities are done beforehand so that if any deficiency arises, it can addressed on time too.

The Court thus “directed the Respondents shall permit the Petitioners to submit their application required for the necessary permission and approval and also for grant of necessary affiliation for the academic session 2022-23.” 

“The Respondents shall allow the Petitioners to submit their application either by opening the portal and accepting the application or, in the alternative, receiving the application by any other mode permissible.” 

“The Respondents are further directed to process the application and conclude the requisite formalities of inspection etc., except for the granting of permission and approval for going in for the admissions.”

[Chouksey College of Pharmacy v. State of Chhattisgarh, 2021 SCC OnLine Chh 3735, decided by 09-12-2021]


Arunima Bose, Editorial Assistant has reported this brief.