Punjab-Haryana High Court
Gandhi College Of Pharmacy, G.T. Road, ... vs All India Council Of Technical ... on 12 May, 1995
Equivalent citations: AIR1995P&H315, AIR 1995 PUNJAB AND HARYANA 315, (1996) 1 SCT 190
ORDER
1. Petitioner herein is the Gandhi College of Pharmacy, Karnal (hereinafter called the college) which is running a two year diploma course in pharmacy since the year 1984. This course was duly approved by the Pharmacy Council of India under Section 12 of the Pharmacy Act, 1948 (referred to hereinafter as the 1948 Act) for admission limited to 120 students for the period from 1984 to 1986 in the first instance subject to the condition that the college would comply with all the requirements of the Education Regulations framed by the Central Council under Section 10 of the 1948 Act. The Board of Technical Education, Haryana, Chandigarh which holds examinations in pharmacy also stands approved by the Central Council and so are the examinations conducted by it for the purpose of qualifying for registration as a pharmacist under the 1948 Act. It is not in dispute that the Board of Technical Education too has recognised the college and has allowed its management to conduct a two-year diploma course with permission to admit 120 students.The case of the college is that the Pharmacy Council of India and the Board of Technical Education granted approval to the course run by it after making necessary enquiries and after satisfying themselves that it possessed the necessary infrastructure for imparting instructions to 120 students. It is alleged that the approval granted by the Pharmacy Council and also by the Board of Technical Education is continuing from year to year and that the same has not been withdrawn till date though the Pharmacy Council sometimes grants approval with retrospective effect. The Board of Technical Education, Haryana conducts the examinations in pharmacy for all the Government Polytechnics/Technical Institutions in the State including private Polytechnics and Technical Institutions. Admissions to the various courses run by various institutions/ polytechnics are made by the Directorate of Technical Education, Haryana and after admiiting students they are allocated. earmarked to different institutions as per their intake strength. Annexure P2 is the prospectus issued by the Directorate of Technical Education for the academic year 1991 -92. The name of the college appears in the list of private Pharmacy Institutions and the pros pectus further mentions that the college has a sanctioned intake of 120 students for the two-
year diploma course in pharmacy. Similarly;
Annexures P3 and P4 are the prospectuses issued for the academic years 1992-93 and 1993-94 respectively, from Annexure P4 it is clear that the college had an intake strength of 120 students for the academic year 1993-94 as well.
2. It appears that some time in March, 1993, the All India Council for Technical Education, New Delhi (for short, AICTE) made its own enquiries regarding infrastruc-
tural facilities provided by the college to its students for conducting the two year diploma course. An expert committee visited the college on 20-3-1993. and after inspecting the premises gave its report. On a considera tion of the report and the recommendations of the Northern Regional Committee, AICTE accorded approval to the college for con ducting two-year diploma course with an.
annual intake of 60 students only instead of 120 as approved by the Pharmacy Council for the academic years' 1993-94 and 1994-95 subject to the fulfilment of several conditions two of which are as under:--
(i) Infra-structural and other fascilities including equipments facility etc. should be provided for both the years of the course as per AICTE norms and new Education Regulation, 1991 of Pharmacy Council of India as adopted by AICTE.
(ii) The management should establish an endowment fund of Rs. ten lacs in the name of the college and fixed deposit receipts should be mortgaged to the Director of Technical Education, Haryana. An amount of Rs. five lacs should be immediately deposited and another amount of Rs.five lacs should be deposited within one year from the date of approval.
A communication dated 7-1-1994 about the grant of the aforesaid approval and the conditions imposed by AICTE Was addressed by it to the Commissioner and Secretary to Government of Haryana, Department of Technical Education, Chandigarh with a copy to the college. It is this communication that has been challenged by the college in this petition filed under Article 226 of the Constitution on the ground that the action of AICTE reducing the intake of students from 120 to 60 and imposing the conditions is without jurisdiction inasmuch as it has no authority under the law to do so.
3. In the reply filed on behalf of AICTE the first respondent in the case, it has been pleaded that after the enactment of All India Council for Technical Education Act, 1987 (for brevity the 1987 Act), all Technical Institutions including the Pharmacy Institutions are required to be approved by AICTE in terms of Sections 10 and 11 of the said Act and the earlier approval granted to those institutions by the Pharmacy Council of India would, therefore, stand superseded. It is averred that as a result of inspection conducted by an expert committee which visited the college on 20-3-1993 it transpired that infrastructural facilities which the college possessed were just enough for conducting the course for 60 students only and that those facilities did not justify the intake strength of 120 students. In view of the facilities available with the college, the first respondent granted approval to the course only for 60 students for the academic years 1993-94 and 1994-95. The firm stand of AICTE is that it alone has the power and jurisdiction to approve the course and determine the intake strength of the college. The conditions imposed while approving the course for 60 students are also sought to be justified.
4. Pharmacy Council of India which was impleaded as respondent No. 3 under the orders of this Court has also filed its written statement and the stand taken therein is that the writ petition deserves to be dismissed because this council has not accorded to the college any sanction/ approval for the period beyond 1992-93 for conducting its diploma courses which is a pre-requisite for admission to an approved examination for pharmacists.
5. From the rival stands taken by the parties in this case the question that emerges for consideration is as to which of the two authorities namely, Pharmacy Council of India or AICTE has, after the coming into force of the 1987 Act the power to approve the diploma course in pharmacy conducted by the college.
6. Before I deal with this question, it is necessary to examine the provisions of the two Acts under which the two authorities have been constituted.
7. The 1948 Act which was a law in force in the territory of India immediately before the commencement of the Constitution was enacted with a view to permit only such persons to practise the profession of pharmacy who attained the minimum standard of professional education. Accordingly, establishment of a Central Council of Pharmacy was proposed which would prescribe the minimum standard of education and approve the courses of study and examinations for pharmacists. The Provincial Pharmacy Councils were also proposed which would be responsible for the maintenance of provincial registers of qualified pharmacists. It was further proposed to empower the Provincial Governments to prohibit the dispensing of medicines on the prescription of a medical practitioner otherwise than by or under the direct and personal supervision of a registered pharmacist. Section 3 of the 1948 Act provides for the constitution of a Central Council by the Central Government by the name of Pharmacy Council of India having a perpetual succession and a common seal. Sections 5, 6 and 7 provide for election of President and Vice President of Central Council and their term of office and the manner in which casual vacances are to be filled. The Central Council is to have an Executive Committee and other committees as required by Sections 9 and 9-A. Section 10 provides that 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. These regulations would prescribe:--
(a) the nature and period of study and of practical training to be undertaken before admission to the examination;
(b) the equipments and facilities to be provided for students undergoing the approved course of studies;
(c) the subjects of examination and the standard therein to be attained; and
(d) any other conditions of admission to examinations.
Section 12 of the 1948 Act then makes a provision for approval of the course of study for pharmacists by the Pharmacy Council of India. It also provides for approval by the Central Council of the examination in pharmacy conducted by any authority in the State. Section 13 then provides for the grounds on which the approval granted by the Pharmacy Council of India can be withdrawn. After providing for the minimum standard of professional education required by a person to practise the profession of pharmacy, Chapter-III provides for the State Pharmacy Councils, their Constitution, election of their Presidents and Vice-Presidents and terms of their office. Chapter-IV provides for registra tion of pharmacists and the manner in which they have to apply for registration. It also provides for the removal of their names from the register and Chapter-V deals with miscellaneous provisions and provides for penalty for falsely claiming to be registered as a pharmacist. Section 42 provides that no person other than a registered pharmacist shall compound, prepare, mix or dispense any medicine. Contravention of this provision has been made punishable with imprisonment or fine. In nut-shell, under the 1948 Act the Pharmacy Council of India through its Education Regulations prescribes the minimum standard of education required for qualification as a pharmacist and approves the courses of studies and examinations. It also deals with some other ancillary matters referred to above. In other words, it contains provisions which relate to co-ordination and determination of standards in colleges of pharmacy.
8. All India Council for Technical Education was set up in 1945 by the Government as a national expert body to advise the Central and the State Governments for ensuring, the co-ordinated development of technical education in accordance with approved standards. It appears that during the first three decades this Council functioned quite effectively and there was a phenomenal development of technical education during that period. However, in recent years, a large number of private engineering colleges and polytechnics providing technical education have come up in complete disregard to the guidelines laid down by AICTE. Most of these institutions had serious deficiencies in terms of even rudimentary infra-structures necessary for imparting proper education and training. Barring some exceptions, there has been scant regard for maintenance of educational standards. Taking note of growing erosion of standards, Parliament enacted the 1987 Act to confer statutory powers on AICTE to ensure:--
(i) proper planning and co-ordinated development of the technical education system throughout the country;
(ii) promotion of qualitative improvement of technical education in relation to planned quantitative growth; and
(iii) regulation of the system and proper maintenance of norms and standards.
Technical education' as defined in clause (g) of S-2 of the 1987 Act means programmes of education, research and training in several areas of learning including pharmacy. By S. 3 AICTE had been created and made a body corporate. It is to consist of members who must include amongst others, a representative of the Pharmacy Council of India. Chapter-Ill deals with the powers and the functions of AICTE. Under S. 10 of the 1987 Act, it is the duty of AICTE to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical education and maintenance of standards. For purposes of performing its functions, AICTE is required to co-ordinate development of technical education in the country at all levels. It may allocate and disburse out of its funds such grant on such terms and conditions as it may think fit to technical institutions and universities imparting technical education in co-ordination with the University Grants Commission. It can evolve suitable performance appraisal systems for technical institutions and the universities imparting technical education, incorporating norms and mechanism for enforcing accountability. One of its most important functions is to lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality' instructions, assessment and examinations. It can fix norms and guidelines for charging tuition and other fees and grant approval for starting new technical institutions and for introduction of new courses or programmes. It can take all necessary steps to prevent commercialisation of technical education and provide guidelines for admission of students to technical institutions and universities imparting technical education. It can inspect or cause to inspect any technical institution. Apart from other things, it may set up a National Board of Accreditation to periodically conduct evaluation of technical education or programmes on the basis of guidelines, norms and standards specified by it and to make recommendations to it or to AICTE or University Grants Commission or to other bodies regarding recognition or derecognition of the institution or the programme. By virtue of S. 11, it may cause an inspection of any department or departments of such technical institution or university to be made in such manner as may be prescribed. The other provisions of this Act deal with matters which are ancillary/incidental. As is clear from the definition of the term 'technical education' any programme of education in pharmacy is also technical education within the meaning of the 1987 Act. The 1987 Act is referable to Entry 66 of List-I of the 7th Schedule to the Constitution which reads as under :--
"Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
9. Now if we compare the provisions of the 1948 Act with those of the 1987 Act it is clearly borne out that both these enactments cover the field of providing the minimum standards of education in pharmacy. The Pharmacy Council of India under the 1948 Act and AICTE under the 1987 Act can both lay down norms and standards for courses of study in pharmacy. Thus, it will be seen that the 1948 Act and the 1987 Act are two parallel enactments relating to co-ordination and determination of standards in colleges and institutions offering courses in pharmacy.
10. Now I come to the question as to which of the authorities under the two Acts would regulate and control the college in the matter of laying down norms and standards for courses in pharmacy. The argument of the learned counsel for the petitioner is that the diploma course of the college having been approved by the Pharmacy Council of India under the 1948 Act, it is this Council alone which would govern the colleges and that no approval of AICTE is required nor can the latter reduce the intake of students and nor has it the power to impose any of the conditions that have been imposed by it. Mr. J. S. Rathi appearing for the Pharmacy Council of India supports the petitioner in this regard and contends that it is the Pharmacy Council which has the complete power and control in the master of laying down standards for courses in Pharmacy as envisaged in the 1948 Act. Mr. S. K. Pipat, Senior Advocate appearing for the first respondent, however, contends that the 1948 Act was an existing law and after the enactment of the 1987 Act, it is the latter Act which will govern since it also covers the field covered by the 1948 Act. He relied on the provisions of Art. 372 of the Constitution and submitted that the provisions of the 1948 Act will be deemed to have been altered or amended by the 1987 Act.
11. I have given my thoughtful consideration to the rival contentions of the parties and find force in the argument of Mr. Pipat. Article 372 of the Constitution provides that notwithstanding the repeal by the Constitution of the enactments referred to in Art. 395, all the laws that were in force in the territory of India immediately before the commencement of the Constitution shall continue to remain in force until altered or repealed or amended by a competent Legislature or other competent authority. The 1948 Act is undoubtedly an existing law which was in force in the territory of India prior to the commencement of the Constitution. This law was thus to continue to operate till it was altered or repealed or amended by a competent Legislature. Parliament in exercise of its powers under Entry-66 of List-I (Union List) has enacted the 1987 Act. As already noticed above, this Act covers same field which was earlier covered by the 1948 Act, namely, to lay down norms and standards for studies in the field of pharmacy. Therefore, in terms of Art. 372 of the Constitution, the 1987 Act to the extent it covers the same field as covered by the existing law, i.e., the 1948 Act, will prevail and the provisions of the 1948 Act to that extent stand repealed/ altered. Alteration, repeal or amendment contemplated by Art. 372 of the Constitution may be express, i.e., the existing law may be expressly altered, repealed or amended by a competent Legislature. An existing law may also be modified by necessary implication and this can be done even by a separate enactment as in the present case. When two Acts are inconsistent or repugnant to each other, the existing law will be deemed to have been altered, repealed or amended by the later law enacted by the competent Legislature. Even when there is no repugnancy or inconsistency between the two enactments, the later law enacted by the competent Legislature will prevail provided that law covers the same field as is covered by the existing law since it is last expression of the will of the Legislature that must prevail.
12. Looking at the background in which the 1987 Act was enacted, the object of Parliament was to co-ordinate and determine the standards of education in technical institutions including that of pharmacy in the country and it was intended that all technical institutions including the college should be governed by its provisions. The view that I am taking finds support from a Division Bench judgment of Madras High Court in Adhi-yaman Educational and Research Institutions v. State of Tamil Nadu, AIR 1991 Madras 246, which has since been approved by the Apex Court in (1995) 3 JT (SC) 136 : (1995 AIR SCW 2179).
It must, therefore, be held that the provisions of the 1987 Act govern the college and the provisions of the 1948 Act stand repealed and altered to the extent they provide for the minimum standard of education and approval of courses and examinations in pharmacy. In this view of the matter, A1CTE was well within its rights to grant approval to the college and was also competent to lay down the conditions enumerated in the communication dated 7-1-1994 (Annexure P5 with the writ petition).
13. Mr. Gupta then referred to clause (k) of S. 10 of the 1987 Act to contend that this Act would govern the grant of approval to new technical institutions and not to the existing institutions which already stood approved by the Pharmacy Council of India. In support of this contention, he relied on some observations made by J. V. Gupta, J. in Daulat Ram Charitable Trust v. State Board of Technical Education, Haryana, (1989) 6 Serv LR 269 : (AIR 1990 Punj & Har 292). There is no merit in this contention either. I have already referred to the scheme of the 1987 Act and also to the background under which it was enacted. Keeping that in view it cannot be said that Parliament intended that the 1987 Act should govern the new institutions only. If the argument of Mr. Gupta was to be accepted it would lead to anomalous situations. The approval granted by the Pharmacy Council of India to the college and other institutions is for a limited period and after the expiry of that period a question would arise as to which Act would govern the existing institutions. In my opinion as already observed above, it is the 1987 Act that would apply and not the 1948 Act. A similar contention was raised before the Madras High Court but the same was rejected with the following observations:--
"The said provision does not indicate in any manner that the powers conferred and the duties enjoined on the Council are confined to such new institutions and not the existing institutions, The language of the other clauses in S. 10 of the Act as well as other sections of the Act shows that the jurisdiction of the Council extended over all the technical institutions, whether established before or after the Act."
In Daulat Ram Charitable Trust's case (AIR 1992 Punj & Har 292) (supra), the petitioner therein sought to admit 120 students directly which action was not approved by the Dirccior, Technical Education, Haryana and a communication was sent informing the petitioner therein that the admission of students had been declared null and void. It was that communication that was challenged and it was in that context that the learned Judge observed that the 1987 Act had no applicability to the petitioner therein. The issue that has been raised in the present case had not been raised before the learned single Judge in Daulat Ram Charitable Trust's case (supra) and Mr. Gupta is trying to take advantage of an isolated observation taken out of the context in which it was made. In my opini6n, it does not advance the case of the petitioner herein as the matter now in issue was not in issue in that case.
14. Lastly, it was urged on behalf of the petitioner that even if the provisions of the 1987 Act were to prevail and govern the college, the mandatory provisions of sub-sec. (3) of S. it of this Act were not complied with when AICTE inspected the college premises. The argument is that AICTE did not communicate to the college its views in regard to the result of the inspection and did not afford any opportunity to the college to express its opinion on that inspection report. This contention is also devoid of merit and cannot be allowed to be raised since it was not so stated in the writ petition and the first respondent, therefore, has had no opportunity to give its reply. It is common case of the parties that the college was inspected on 20-3-1993 by an expert committee constituted by AICTE and the said committee had associated the management of the college with it at the time of inspection and that prior intimation had been given to the petitioner.
15. The writ petition merits dismissal on another ground as well. The case of the petitioner is that the Pharmacy Council of India alone has the power to grant approval to the college to run the pharmacy course.
Even if one were to accept this contention (though it has been rejected in the earlier part of the judgment), the Pharmacy Council of India has not accorded approval to the course run by the college beyond the academic year 1992-93. The college cannot, therefore, claim that the diploma course conducted by it for the academic years 1993-94 and 1994-95 is duly approved.
16. In the result, there is no merit in the writ petition and the same stands dismissed. Under the interim orders of this Court, the. college has. admitted 120 students as against the intake of 60 students approved by AICTE for the academic years 1993-94 and 1994-95. If these students are now restrained from continuing with their studies, they will suffer an irreparable injury. The respondents are, therefore directed to permit these students to complete their course. The college is also directed not to admit any student for the next academic year and thereafter without seeking prior approval of AICTE as is required under the provisions of the 1987 Act. In case the college applied for such approval, there is no reason to believe that its claim will not be considered and decided by the competent authority in accordance with law before admissions for the next academic year commence. There is no order as to costs.
17. Petition dismissed.