Karnataka High Court
Basavaraj M. And Others vs The Karnataka State Pharmacy Council, ... on 5 February, 2001
Equivalent citations: AIR2001KANT239, AIR 2001 KARNATAKA 239, 2001 AIR - KANT. H. C. R. 1150 (2001) 4 KANT LJ 576, (2001) 4 KANT LJ 576, 2001 AIR - KANT. H. C. R. 1150
ORDER
1. Heard the learned Counsel for the petitioners, Sri R.H. Chan-danagoudar and the learned Government Pleader for respondents 1 to 3.
2. By these petitions, the petitioners have sought the following reliefs.-
(i) Quashing of the endorsements dated 16-9-1998 and 23-9-1998 bearing No. KSPC/472/1998-99 and KSPC/490/1998-99 vide Annexures-G and G-1 issued by respondent 1 refusing to register the petitioners as Pharmacists by issuing of writ of certiorari or any other writ or order.
(ii) Directing of the respondents to treat the Diploma Certificates issued by the respondent 2-State Council of Vocational Education as equivalent to the Diploma Certificates issued by the Drugs Control Department i.e., respondent 3 and further to register these petitioners as Pharmacists by issuing a writ of mandamus or any other order.
(iii) Grant such other relief as are deemed fit and necessary under the circumstances of the case including the cost of this writ petition.
3. The petitioners claimed to be the Diploma Certificate holders granted by the State Government. They filed applications before the Karnataka State Pharmacy Council for registration of their names as Pharmacists with an object of running Medical Pharmacy in the Karnataka State under Indian Pharmacy Act of 1948. The State Council of Pharmacy rejected their applications on the ground that the Diploma Certificate granted by the respondent 2 i.e., the Karnataka State Council of vocational Education is not a recognised degree or diploma under the Indian Pharmacy Act by the Pharmacy Council of India. It is on this ground, the State Council of Pharmacy refused to register the petitioners as pharmacists. The order of rejection is dated 16-9-1998 and 23-9-1998 (Annexures-G and G-1 to the writ petition).
In Annexure-G to the writ petition, which is dated 16-9-1998, it has been mentioned and indicated as under.-
"With reference to your application for registration, I wish to state that application is rejected as Vocational Course is not approved by P.C.I, for registration. Hence, I am returning back the application".
Annexure-G1 is dated 23-9-1998 issued by the Registrar, the Karnataka State Pharmacy Council, and it reads as under.-
"With reference to your application for registration I wish to state that your application has been rejected as Vocational Course is not eligible for registration. The Course is not approved by Pharmacy Council of India for registration. Only Diploma awarded by Board of Examining Authority is considered for registration".
Feeling aggrieved by these orders, the petitioners have filed these petitions under Article 226 of the Constitution of India seeking reliefs as have been mentioned above.
4. On noti'ce being issued, the statement of objections has been filed on behalf of the respondents 1 to 3 as well as on behalf of the respondent 4. In the objections statement dated 5-7-1999, it has been stated, in paragraph 2, as under.-
"The respondent 2 had conducted the job oriented Diploma in Pharmacy Vocational Courses from 1993 to 1995 under the Centrally Sponsored Scheme of vocationalisation of secondary education. The Government of Karnataka withdrew the course as respondent 4 objected to this type of course, Hence, the admissions were stopped from June 1996".
It has further been stated in paragraph 3 as under.-
"3. It is relevant to submit that the Medical Officer, Government Hospital, Gokak, had refused to enroll certain candidates for 3 months' training in the hospital, which was mandatory for awarding of a diploma certificate, as they were not sponsored by respondent 3, on the count that respondent 4, the Pharmacy Council of India, had not approved the said course. The candidates approached this Hon'ble Court and had filed W.P. Nos. 18801 and 19916 to 19961 of 1997 wherein a direction came to be issued to respondent 2 and the college concerned, to make an application in the prescribed manner under the Pharmacy Act and Regulations. Accordingly, applications were made and prescribed forms were got filled in by the principals of all the colleges who had conducted Pharmacy Courses between the years 1993-1995, which were submitted to respondent 4 on 13-3-1998. The copies of the proceedings of the meeting held under the Chairmanship of Secretary, Health and Family Welfare dated 27-1-1998, the letter addressed to respondent 4 and the statement showing the list of colleges are filed for the kind perusal of this Hon'ble Court at Annexures R-1, R-2 and R-3. The respondent 4, in letter dated 1-5-1998, communicated that it has decided not to approve the two years job oriented Pre-University Diploma Course in Pharmacy conducted at 14 colleges between 1993-1995 by respondent 2 under Section 12 of the Pharmacy Act, for the purpose of registration as a Pharmacist. Copy of the letter under Annexure-R4 is enclosed. It is submitted that an application from the petitioners' college too was submitted to the Pharmacy Council of India along with the applications from the 14 colleges referred to above, The petitioners herein have been already awarded the Diploma Certificate in 1996-97. Hence, respondent 2 has no jurisdiction to prevail upon respondent 4, the Pharmacy Council of India, New Delhi, to register the petitioners as Pharmacists".
5. On the record, it appears, there is also another statement of objections filed on behalf of the respondent 1 which is dated 23-3-1999. After having made reference to the provisions of Sections 32, 12(1) and 12(2) of the Act, the respondent 1 states, "Therefore, the students who have undergone a course which is not approved by the 4th respondent and written the examination which is not approved by the 4th respondent as per Section 12(1) and (2) are not entitled to be registered as Pharmacists.
3. The petitioners herein; have studied in the 3rd respondent-College which has not been approved and when this examination is also not approved by the 4th respondent are not entitled to be registered as Pharmacist under Section 32(2) of the Act".
It has further been stated, "As per the Regulation 9 of the Education Regulations, 1991, which has been framed by the Central Council under Section 10 of the Act, the course of Regular Academic study prescribed under Regulation 7 shall be conducted in an institution approved by the Pharmacy Council of India under Section 12(1) of the Pharmacy Act".
It has further been stated that, "The college in which the petitioners have undergone the course is not approved and hence they are not entitled to any relief much less the reliefs which they have sought in the petition".
In paragraph 5 of the affidavit, it has been stated.-
"After disposal of the Writ Petition Nos. 37540 to 37561 of 1998 by this Hon'ble Court, the petitioners approached this respondent and this respondent has rejected the applications on the ground that the course studied by them is not recognised by the 4th respondent, which is in accordance with the Pharmacy Act".
6. In the statement of objections filed on behalf of the respondent 4, it has been stated in paragraph 1 as under.-
"At the outset, this respondent respectfully submits that no reliefs could be granted to the petitioners much less the reliefs claimed as the institutions/colleges in which they have studied and the examination which they have written are not approved by this respondent as per Section 12(1) and (2) of the Pharmacy Act, 1948 and as such the petitions are liable to be dismissed with costs".
In paragraphs 5, 6 and 7, it has been stated as under.-
"5. Presently, the Education Regulations, 1991 for the Diploma Course in Pharmacy (E.R. 91) notified in the Gazette of India, Part III, Section 4, No. 28, dated 11-7-1992 prescribe-
(i) minimum qualification for admission to D. Pharm course; (ii) duration of the course; (iii) subjects of the course;
(iv) mode of examination and minimum marks for passing the examinations;
(v) period and other conditions for practical training.
(vi) syllabus of Diploma Course in Pharmacy is dealt in Appendix A of E.R. 91;
(vii) Appendix B of E.R. 91 prescribes the conditions to be fulfilled by the institutions seeking approval of the PCI for running an approved course of study for Pharmacists.
6. Regulation 2 of E.R. 1991 prescribes the minimum qualification required for registration as Pharmacist. As per the said regulation, the minimum qualification for registration as a Pharmacist is a pass in Diploma Course in Pharmacy or any other qualification approved by the PCI as equivalent to D. Pharm Course. The PCI approves the degree course in pharmacy also but only for the purpose of registration as a Pharmacist i.e., D. Pharm. and B. Pharm. courses are approved by the PCI for the purpose of registration as a Pharmacist. Further, under proviso to Regulation 2 of the E.R. 91, the Council has not approved any other qualification as equivalent to D. Pharm. or B. Pharm. for the purpose of registration as a Pharmacist.
7. Regulation 9 of the E.R. 91 states that the course of regular academic study shall be conducted in an institution approved by the PCI under sub-section (1) of Section 12 of the Act. The PCI grants approval for the conduct of the course of study for Pharmacists under Section 12 of the Act.
Section 12(1) of the Act clearly states that any authority in a State which conducts a course of study for Pharmacists has to apply to the Central Council for approval of the course and the Central Council, if satisfied, after inspecting, that the said course of study is in conformity with the Education Regulations shall declare the said course of study to be an approved course of study for the purpose of admission to an approved examination for Pharmacists.
Section 12(2) of the Act very specifically states that any authority in a State which holds an examination in pharmacy has to apply to the PCI for approval of the examination and if after inspection the Central Council is satisfied that the said examination is in conformity with the Education Regulations, shall declare the said examination to be approved examination for the purpose of qualifying for registration as a Pharmacist. As per Section 12 of the Act the course conducting authority and examination conducting authorities have to apply to the PCI for approval of the course and examination in pharmacy respectively".
It has further been stated by the respondent 4 in his statement of objections, after having made a reference to several provisions, as under.-
"Therefore, the persons who have studied approved course and written the approved examination are alone entitled to be registered as Pharmacists".
In paragraph 11, it has been stated as under.-
"In the present case, the petitioner's institution (respondent 5) started the Diploma Course in Pharmacy (Vocational) and the replying respondent has not approved the Diploma in Pharmacy (Vocational) under proviso to regulation 2 of E.R. 91 for the purpose of registration as a Pharmacist. Hence, the petitioners are not eligible for registration as a Pharmacist".
It has also been stated that on 25-11-1994, the Karnataka State Government conveyed to the Council about the permission granted by it to some institutions in Karnataka to conduct vocational course in Pharmacy and the Council by its letter dated 12-1-1995 very fairly indicated that the Pharmacy education is solely controlled by the Pharmacy Council of India under the Pharmacy Act, 1948 and the Council has prescribed regular Diploma Course in Pharmacy as the minimum qualification for registration as a Pharmacist and that the conduct of vocational course is not permitted under the Pharmacy Act and as such, steps taken by the State Government permitting certain institutions to start vocational course or to conduct vocational course in Pharmacy is in breach of the provisions of the Pharmacy Act, 1948 and the Council will not give any recognition to such course. The Council requested the departments of the Government to give vide publicity in the matter of the letter which had been addressed to the Government of State of Karnataka so that students are not misled by the agencies involved in conducting the vocational course in Pharmacy. The Pharmacy Council of India by letter dated 26-4-1998 on the approach made by the Government of Karnataka and the Department of Vocational Education, Bangalore, dated 13-3-1998, informed the Karnataka Government and the Department of Vocational Education that the syllabus of "Vocational Course in Pharmacy" was not at par with the syllabus of "Diploma Course in Pharmacy" as prescribed in Appendix 'A' of the Education Regulations, 1991, as well as informed about its decision not to approve the "Job Oriented Pre-University Diploma Course in Pharmacy" conducted at 14 Pre-University Colleges during the period from 1993 to 1995 by the Director of Vocational Education, Government of Karnataka, under Section 12 of the Pharmacy Act, 1948, for the purpose of registration as a Pharmacist and they were requested to convey the same to all concerned. The respondent 4 very clearly states that the students who have done vocational course conducted by the Director of Vocational Education, Government of Karnataka, through the fourteen colleges have not been eligible for registration as Pharmacists. The case of the respondent 4 is that, as such, the Course conducted by the respondent 5 were in total disregard to the provisions of the Act and the Education Regulations, 1991 and the petitioners have got no right to claim writ of mandamus and the writ is liable to be dismissed.
7. The learned Counsel for the petitioners Sri R.H. Chandanagoudar submitted that the petitioners have already completed the course of Diploma Certificate in Vocational Pharmacy with utmost labour and after spending the money and now at this stage if they are not registered as Pharmacists, their whole career is going to be ruined. This Court may direct the respondents to regularise the petitioners' obtaining the Diploma in Vocational Pharmacy as the petitioners bona fide continued to study and as the course of Diploma Certificate issued by the respondent 2, the Karnataka State Council of Vocational Education is on par with the Diploma Certificate issued by the Drugs Control Department, respondent 3 which is run and approved by the Pharmacy Council of India.
8. It is a well-settled principle of law that powers under Article 226 of the Constitution have to be exercised to set right such actions of authori-
ties which are illegal. The power under Article 226 cannot be exercisable and are not to be expected to be exercised to nullify the mandatory provisions of law unless and until the law is shown to be ultra vires. No question of provisions of the Drugs Act being ultra vires was raised nor any challenge has been made so far. Therefore, firstly powers under Article 226 cannot be exercised to perpetuate the illegality or to encourage the illegality. The writ of mandamus can be claimed by the petitioners to enforce their rights, fundamental or statutory, which have been denied or which have been rendered ineffective by omission or negligence of the authority to perform their statutory duty by the performance of which the right could be fulfilled if the authority had been called upon to perform its legal statutory duties and it has failed.
9. Here, in such a case, it has to be looked into, whether the petitioners have got any right for the directions to be issued, as sought in the writ petitions.
10. The rule of law is the sole of democracy. Laws are meant to regulate the life and even to make effective the right of education as well as to protect the life of citizens. Pharmacists have also got an important role to play. Pharmacy is also a technical job. The law had been framed even prior to coming into force of the Constitution and the Pharmacy Act, 1948 had been enacted to regulate the profession of the Pharmacy in the best interest of the people and life of the public and under the Act, the Pharmacy Council of India had been provided to be and has been constituted.
11. Section 10 of the Pharmacy Act, 1948, provides for regulation of education. It reads as under.-
"10. Education Regulations.--(1) Subject to the provisions of this section, the Central Council may, subject to the approval of the Central Government, make regulations, to be called the Education Regulations, prescribing the minimum standard of education required for qualification as a pharmacist.
(2) In particular and without prejudice to the generality of the foregoing power, the Education Regulations may prescribe-
(a) the nature and period of study and of practical training to be undertaken before admission to an examination;
(b) the equipment and facilities to be provided for students undergoing approved courses of study;
(c) the subjects of examination and the standards therein to be attained;
(d) any other conditions of admission to examination.
(3) Copies of the draft of the Education Regulations and of all subsequent amendments thereof shall be furnished by the Central Council to all State Governments, and the Central Council shall before submitting the Education Regulations or any amendment thereof, as the case may be, to the Central Government for approval under sub-section (1) take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.
(4) The Education Regulations shall be published in the Official Gazette and in such other manner as the Central Council may direct.
(5) The Executive Committee shall from time to time report to the Central Council on the efficacy of the Education Regulations and may recommend to the Central Council such amendments thereof as it may think fit".
Section 10 confers power on the Pharmacy Council of India to make regulations which are to be called as the Education Regulations prescribing the minimum standard of education required for qualification as a Pharmacist and sub-section (2) provides for what regulations may provide namely regulations may prescribe for nature and period of study and for practical training to be undertaken before admission to an examination. It may provide for the equipment and facilities to be provided to the students undergoing approved courses of study. It may also provide, subjects of examination and the standards to be attained and may also provide for other material considerations for admission to an examination. No doubt, this power is subject to approval by the Central Government. How the regulations will be formulated, it has been provided under sub-sections (3), (4) and (5).
Section 12 of the Act provides for the approval of the course of study and examination and the power to grant approval to the courses of study of Pharmacy conducted by any authority in the State. It has been provided that such authority may apply to the Central Council for approval of the course and the Pharmacy Council of India, on being satisfied after enquiry, as to the question that such course of study is in conformity with the Education Regulations and after being satisfied, it can declare the said course of study to be an approved course of study for the purpose of admission to an approved examination for pharmacists and may also, if satisfied that the said examination which is conducted by the authority of the State is in conformity with the Education Regulations, it shall declare the said examination conducted by the authority in the State to be an approved examination for the purpose of qualifying for registration as a pharmacist.
Section 13 provides for withdrawal of approval.
Section 18 provides for power to make regulations.
Section 31 provides for the qualifications for entry on first register. Section 31 of the Act reads as under.-
"Section 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 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".
Section 32 of the Act provides for qualification for subsequent registration. Amongst the qualifications, it has been provided that, if he 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 are set up. Sub-section (2) of Section 32 provides that, after the Education Regulations have been framed, by under Section 11 taken effect in the State, a person shall be entitled to have his name entered in the register, if he has attained the age of 18 and if he resides or carries on business or profession of pharmacy in the State and if he has passed the approved examination or possesses a qualification approved under Section 14 or is a registered pharmacist in another State.
12. A reading of these sections per se reveals that, for being registered as a Pharmacist, one must have passed the approved examination or he must be possessed of a qualification approved under Section 14 or he has been a registered Pharmacist in another State.
13. In the present case, it is nobody's case that the petitioners have been the registered pharmacists in another State nor it is the case of the petitioners that the petitioners possessed some qualification approved under Section 14. The petitioners, in the present case, have only passed, as alleged by them, two years' Vocational Course in Pharmacy and have secured certificates for having passed the Vocational Pharmacists Course conducted and run by the respondent 2 and the College, respondent 5. There is no dispute about the fact that the course of Vocational Diploma has not been approved by the Pharmacy Council of India. Instead Pharmacy Council of India informed the Karnataka State Government as well as the Director of Vocational Education, Government of Karnataka, vide Annexures-R-1 and R-3 that the Council noted that the syllabus of Vocational Course in Pharmacy was not at par with syllabus of Diploma Course in Pharmacy as prescribed in Appendix 'A' of the Education Regulations, 1991 and the Vocational Course of Pharmacy was conducted without approval of the Pharmacy Council of India and the Pharmacy Council of India informed, as mentioned earlier, that this course is not approved. When the subject of pharmacy and the profession of pharmacists had been the subject-matter of law, namely the Pharmacy Act, 1948 and the Parliament established the Pharmacy Council of India as an All India Council to determine the course, to regulate the admissions thereto, to regulate the standards and to recognise and approve the examination, no other authority was competent to run such a course or to start a course without the proper and due approval from the Pharmacy Council of India. Even if that course had been started with the sanction of the Karnataka State Government, that sanction granted by the Karnataka State Government to respondents 2 and 5 to conduct Vocational Pharmacists Course was without authority. It is well-settled that when law confers a power to certain specific authority to control and regulate a particular aspect of education or the like, unless the Act itself provides certain exceptions and confers or delegates any power to any of the authority, no authority is competent to grant sanction for running a course such as the one, namely Pharmacists' Course or a course for enabling a person to be registered as a Pharmacist. The Pharmacy Council of India, under the Act, is the sole authority, no doubt subject to the approval from the Central Government, having power to control and regulate the course of education, the subjects to be prescribed and to prescribe the conditions for admission and when it is the only institution which has got the powers to grant approval, if the course run by any authority in the State, whether it is the State Government or the authority under the State Government, but if it is conducted without the approval from the Pharmacy Council of India, then such a course and the certificates or the diplomas got from such an authority under the State Government cannot be said to be valid to entitle the persons like the petitioners to claim registration contrary to the provisions of the Pharmacist Act. The diplomas conferred on the petitioners of Vocational Pharmacists Course by the respondent 2 or the respondent 5 are in breach of and in violation of the provisions of the Education Regulations framed under the Pharmacists Act as well as without seeking approval from the Pharmacy Council of India and they cannot be said to have conferred any right on the petitioners to get registered as the Pharmacists.
14. In view of the above, as the petitioners have got no statutory right to get registered as pharmacists, no mandamus can be issued in favour of the petitioners nor can the orders namely dated 16-9-1998 or 23-9-1998 (Annexures-G and G-1) passed by the respondent 1 i.e., the Karnataka Pharmacy Council whereby it has refused to register the petitioners as Pharmacists can be said to suffer from any error of law or jurisdiction. The said orders are perfectly valid. So, neither writ of cer-tiorari nor writ of mandamus can be granted in favour of the petitioners.
The present writ petitions being devoid of merits, as such, have to be dismissed.
Parties to the case have to bear their own costs.