Karnataka High Court
Shifa College Of Pharmacy vs Pharmacy Council Of India on 19 November, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
W.P. No. 52314 OF 2019
1 c/w W.P.No.52867 OF 2019
W.P.No.52868 OF 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.52314 of 2019
c/w
WRIT PETITION NO.52867 OF 2019
WRIT PETITION NO.52868 OF 2019 (EDN-REG)
IN WRIT PETITION NO.52314/2019
BETWEEN:
1. SHIFA COLLEGE OF PHARMACY
ANDERSONPET
KGF-563133
573201
REPRESENTED BY ITS PRINCIPAL
DR. GANGADHARA.T
S/O THIMMAPPA.T
AGED ABOUT 43 YEARS
R/AT ANDERSONPET, KGF-563113
2. NOORIE EDUCATIONAL AND CULTURAL TRUST (REGD.)
AL-HAJMA NOORUNNISSA ROAD
ANDERSONPET, K.G.F-563113
KOLAR DIST. KARNATAKA
REPRESENTED BY ITS TRUSTEE
MR. MOHAMMED AHETASHAM
AGED ABOUT 35 YEARS
S/O SHRI ANWER
R/A BANGALORE-560005. ...PETITIONERS
(BY SRI.MADHUSUDAN NAIK, SENIOR COUNSEL FOR
SRI. OMKAR KAMBI, ADVOCATE)
AND:
1. PHARMACY COUNCIL OF INDIA
COMBINED COUNCIL'S BUILDING
KOTLA ROAD, AIWAN-E-GHALIB MARG
W.P. No. 52314 OF 2019
2 c/w W.P.No.52867 OF 2019
W.P.No.52868 OF 2019
NEW DELHI-110002
REPRESENTED BY ITS REGISTRAR-CUM-SECRETARY
2. STATE OF KARNATAKA
DEPARTMENT OF HEALTH AND FAMILY WELFARE
KARNATAKA GOVERNMENT SECRETARIAT
M.S. BUILDINGS, BANGALORE-560001.
REPRESENTED BY ITS PRINCIPAL SECRETARY
3. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCE
4TH' T' BLOCK, JAYANAGAR
BANGALORE-560041
REPRESENTED BY ITS REGISTRAR ...RESPONDENTS
(BY SRI. S.S. HAVERI, ADVOCATE FOR R1;
SRI. SANDESH KUMAR, HCGP FOR R2;
SRI.N.K. RAMESH, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED COMMUNICATION DATED 17.7.2019 ISSUED BY THE
R-1 (TO SUSPEND CONSIDERATION OF APPLICATION FOR
GRANT OF PERMISSION) AS PER ANNEXURE-E ISSUED BY THE
R-1 AS BEING ARBITRARY ILLEGAL AND ULTRA VIRES THE PCI
ACT 1948 AND ETC.
******
IN WRIT PETITION NO.52867/2019
BETWEEN:
SIDRAMAPPA DANIGOND MEMORIAL TRUST
DR. SIDHANT NAGAR TERDAL-587315
BAGALKOT DISTRICT
REPRESENTED BY ITS CHAIRMAN
SIDRAMAPPA DANIGOND
AGED ABOUT 68 YEARS
S/O LATE SIDRAMAPPA ...PETITIONER
(BY SRI. BHADRINATH.R, ADVOCATE)
AND:
1. PHARMACY COUNCIL OF INDIA
COMBINED COUNCIL'S BUILDING
KOTLA ROAD, AIWAN-E-GHALIB MARG
W.P. No. 52314 OF 2019
3 c/w W.P.No.52867 OF 2019
W.P.No.52868 OF 2019
NEW DELHI-110002
REPRESENTED BY ITS REGISTRAR-CUM-SECRETARY
2. THE STATE OF KARNATAKA
DEPARTMENT OF HEALTH AND FAMILY WELFARE
KARNATAKA GOVERNMENT SECRETARIAT
M.S. BUILDINGS, BANGALORE-560001.
REPRESENTED BY ITS PRINCIPAL SECRETARY
3. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCE
4TH 'T' BLOCK, JAYANAGAR
BANGALORE-560041
REPRESENTED BY ITS REGISTRAR ...RESPONDENTS
(BY SRI. S.S. HAVERI, ADVOCATE FOR R1;
SRI. SANDESH KUMAR, HCGP FOR R2;
SRI.N.K. RAMESH, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED COMMUNICATION DATED 17.7.2019 ISSUED BY THE
R-1 (TO SUSPEND CONSIDERATION OF APPLICATION FOR
GRANT OF PERMISSION) (FOR ONLINE APPLICATION (PT.J)) AS
FOUND AT ANNEXURE-E ISSUED BY THE R-1 AS BEING
ARBITRARY ILLEGAL AND ULTRA-VIRES THE PHARMACY ACT,
1948 AND ETC.
*******
IN WRIT PETITION NO.52868/2019
BETWEEN:
1. RAJEEV COLLEGE OF PHARMACY
PLOT NO.ID, BANGALORE-MANGALURU
BY-PASS ROAD, BOMMANAYAKANAHALLI
HASSAN-573201
REPRESENTED BY ITS PRINCIPAL
DR. P GOP KUMAR
S/O LATE PRABHAKAR ACHARYA
AGED ABOUT 46 YEARS
R/AT HASSAN
2. RAJEEV EDUCATION TRUST
BEHIND RAJEEV HOSPITAL
GOVT. HOSPITAL ROAD
HASSAN-573201
W.P. No. 52314 OF 2019
4 c/w W.P.No.52867 OF 2019
W.P.No.52868 OF 2019
REPRESENTED BY ITS PRESIDENT
DR. V. RAJEEV
S/O LATE VISHAKANTE GOWDA
AGED ABOUT 63 YEARS
R/A HASSAN ...PETITIONERS
(BY SRI. OMKAR KAMBI, ADVOCATE)
AND:
1. PHARMACY COUNCIL OF INDIA
COMBINED COUNCIL'S BUILDING
KOTLA ROAD, AIWAN-E-GHALIB MARG
NEW DELHI-110002
REPRESENTED BY ITS
REGISTRAR-CUM-SECRETARY
2. THE STATE OF KARNATAKA
DEPARTMENT OF HEALTH AND FAMILY WELFARE
KARNATAKA GOVERNMENT SECRETARIAT
M.S. BUILDINGS, BANGALORE-560001
REPRESENTED BY ITS PRINCIPAL SECRETARY
3. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCE
4TH 'T' BLOCK, JAYANAGAR
BANGALORE-560041
REPRESENTED BY ITS REGISTRAR ...RESPONDENTS
(BY SRI. S.S. HAVERI, ADVOCATE FOR R1;
SRI. SANDESH KUMAR, HCGP FOR R2;
SRI.N.K. RAMESH, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED COMMUNICATION DATED 17.7.2019
MORATORIUM/3720-3826 ISSUED BY THE R-1 (TO SUSPEND
CONSIDERATION OF APPLICATION FOR GRANT OF
PERMISSION) AS PER ANNEXURE-E ISSUED BY THE R-1 AS
BEING ARBITRARY, ILLEGAL AND ULTRA-VIRES THE PHARMACY
ACT, 1948 AND ETC.
******
THESE WRIT PETITIONS COMING ON FOR FURTHER
HEARING AND HAVING BEEN RESERVED FOR ORDERS ON
02.11.2020, THIS DAY, THE COURT PRONOUNCE THE FOLLOWING:
W.P. No. 52314 OF 2019
5 c/w W.P.No.52867 OF 2019
W.P.No.52868 OF 2019
ORDER
1. The petitioners in these three petitions are persons or entities who wanted to set up a Pharmacy college. Respondent No.1-Pharmacy Council of India (PCI) by issuing communication dated 9.9.2019 and 17.07.2019 affected a moratorium for a period of 5 years on opening new Pharmacy colleges for running Diploma, as well as Degree college courses in Pharmacy from the academic year 2020-21. It is aggrieved by the same the petitioners are before this Court. The petitioners in all three petitions have sought for the following reliefs:
1.1. Issue an appropriate writ, or order or direction in the nature of certiorari, or any other writ, quashing the impugned communication dated 17.07.2019 in Ref. No.14-66/2019-PCI (Moratorium/3720-3826 issued by the Respondent No.1 [to suspend consideration of application for grant of permission] as per Annexure E issued by the Respondent No.1, as being arbitrary, illegal and ultra-vires the PCI Act, 1948, and W.P. No. 52314 OF 2019 6 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 1.2. Issue an appropriate writ, or order or direction in the nature of certiorari, or any other writ, quashing the impugned communication dated 09.09.2019 in Ref. No.14-56/2019-PCI (Moratorium/4562-4670 issued by the Respondent No.1 [as per Annexure E1 issued by the Respondent No.1, as being arbitrary, illegal and ultra-vires the PCI Act, 1948, and 1.3. Issue an appropriate writ, order or direction in the nature of Mandamus, directing the Respondent No.3 to consider for issue of an 'NOC' (vide Annexure-D), not taking note of the communications Dated 17.07.2019 No.14- 56/2019-PCI (Moratorium)/3720-3826 and 09.09.2019 as per Annexure/s E and E1 respectively.
1.4. Issue an appropriate writ, order or direction, in the nature of Mandamus, directing the Respondent No.1 to receive the Application, to be submitted by the petitioner, for establishment of new Pharmacy college, process and grant the permission in accordance with law, for the academic year 2020-2021; not taking note of any such policy decision per the communications Dated 17.07.2019 and 09.09.2019- Annexure/s E and E1 respectively.
2. BACKGROUND OF PETITIONERS:
2.1. W.P.No. 52314/2014:
The petitioners with an intention to impart education in Pharmacy established Pharmacy college in the mofussil part of the State to W.P. No. 52314 OF 2019 7 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 cater to the locals, who seek to become professional Pharmacists. Petitioner No. 2 is having its own 200-bed Multispecialty hospital in Kolar. Petitioner No.1 has been established by petitioner No.2 Noorie Educational and Cultural Trust (Regd) in KGF. The Trust is a Minority Education Trust involved in philanthropic activities in KGF and neighbourhood. Petitioner No.2 has established various institutions since the year 2006 in the streams of Nursing, B.Ed, etc. 2.2. W.P.No. 52867/2019:
The petitioner with an intention to impart education in Pharmacy in the year 2005 proposed to establish Pharmacy college in mofussil area to cater to request of locals who seek to become professional Pharmacists. The petitioner is having a 200-bed multi-speciality hospital in Bagalkot and has incurred a cost of W.P. No. 52314 OF 2019 8 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 Rs.60 lakhs for the purpose of setting up a new Pharmacy college. Petitioner has been established by Siddaramappa Memorial Trust (Regd) in Bagalkot. The said Trust is involved in certain philanthropic activities in Bagalkot and its neighbourhood. The petitioner amongst others has established various institutions since 2005 in the streams of Ayurvedic medical college, P.G.Centre, Ayurvedic hospital and research centre, Dr.Siddarth Dhanigol Central SC/ST School, PU college of commerce, college of commerce, etc. The petitioner has established an Ayurvedic hospital at Bagalkot. The petitioner has a well provided campus for its educational institutions.
2.3. W.P.52868/2014:
The petitioners with an intention to impart education in Pharmacy in the year 2016, proposed to establish a Pharmacy college in W.P. No. 52314 OF 2019 9 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 the mofussil part of the State to cater to the locals, who seek to become professional Pharmacists, the college has been founded mostly to cater to students from the surrounding areas where access to professional courses is still not easily available. Petitioner No.2 is having its own multi-specialty hospital at Hassan. The petitioners have incurred a cost of Rs.6 crore for the purpose of setting up of a Pharmacy college towards land cost, construction costs.
Petitioner No.1 is established by petitioner No.2-- Rajiv Education Trust, registered in Hassan. The Trust is involved in philanthropic activities in Hassan and its neighbourhood. It has established various institutions since the year 2000 in the streams of Engineering, Polytechnic college, Nursing college, B.Ed, and most recently Ayurveda.
W.P. No. 52314 OF 2019 10 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019
3. Petition/s:
3.1. In the background of the above facts, the petitioners have sought for releifs aforementioned.
3.2. The establishment and conduct of a Pharmacy College is governed under The Pharmacy Act, 1948 (hereinafter for brevity referred to as "Pharmacy Act" or "Act").
3.3. For a person or an entity to establish a Pharmacy college providing a pharmacy course, it is required for such a person or entity to obtain a 'No objection certificate' and consent of affiliation from the State of Karnataka and University respectively.
3.4. Respondent No.3-University by its communication dated 29.10.2018 had invited applications from eligible and interested institutions for starting new courses in W.P. No. 52314 OF 2019 11 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 various streams and to seek for consent for affiliation. Amongst others by way of said notification respondent No.3 had invited applications in respect of medical, Dental, Indian system of medicine and Homeopathy, Pharmacy, nursing, allied degree science, Ph.D programmes, fellowship programmes and certification courses. The timelines were also specified in the said notification.
3.5. The petitioners in all the above petitions claiming to have established requisite infrastructure in order to obtain the requisite permission from the University for starting a Pharmacy course from the academic year 2020-2021 had submitted their respective requests to respondent No.3-University requesting it to process their application for consent and grant consent for affiliation.
Along with their application, the petitioners W.P. No. 52314 OF 2019 12 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 have submitted documents and information, as also paid requisite fee.
3.6. It is stated that Local Inspection Committee (hereinafter for brevity referred to as "LIC") of respondent No.3-University had conducted a local inspection pursuant to the application submitted by the petitioners and having regard to the infrastructure and staff available in the respective petitioners' colleges, the LIC had recommended for affiliation of the respective petitioners with respondent No.3-University. 3.7. Respondent No.3-University in the 142nd meeting of its syndicate had accepted the recommendation of the LIC, as also that of the academic counsel and granted consent for affiliation for starting B-pharma course with an intake of different number of students in respect of different petitioners W.P. No. 52314 OF 2019 13 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 from the year 2020-21. The said decision continues to be in force even as on today and it has not been cancelled.
3.8. The consent for affiliation accepted by the syndicate had been forwarded to respondent no.2- Government of Karnataka for necessary permission/issuance of No objection certificate.
3.9. When the said grant of permission was pending before respondent No.2-Govt. of Karnataka, it has come to the notice of the petitioners that respondent No.1 had passed a resolution on 17.07.2019 (the "first resolution"), in terms of the first resolution the respondent no.1 had resolved to not receive online applications for the establishment of new colleges in Pharmacy for a period of five years from the academic year 2020-21 and the said first resolution W.P. No. 52314 OF 2019 14 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 had been communicated to the State governments, Universities, Union territories, etc. The said first resolution is reproduced hereunder for easy reference:
" PHARMACY COUNCIL OF INDIA To All State Government/Union Territories-
1. Chief Secretaries 2. Principal Secretaries (Health)
3. Principal Secretaries (Technical Education) Subject: Moratorium for new D.Pharm and B.Pharm institutions from 2020-2021 Sir/Madam The Pharmacy Council of India (PCI) is a statutory body working under the Ministry of Health and Family Welfare, Government of India. It is constituted under the Pharmacy Act, 1948 to regulate the pharmacy education and practice of profession in the country by prescribing the minimum standard of education required for qualification for registration as a pharmacist.
At present, the following courses in pharmacy are being approved by the PCI u/s 12 of the Pharmacy Act, 1948.
Name of the Duration of the Admission Course course (Years) Qualification Diploma in 2 Yrs. & 10+2 science Pharmacy 500 hrs. practical academic (D.Pharm) training stream with Physics, Chemistry, Mathematics or Biology.
Bachelor of 4 yrs. 10+2 science
Pharmacy academic
(B.Pharm) stream with
W.P. No. 52314 OF 2019
15 c/w W.P.No.52867 OF 2019
W.P.No.52868 OF 2019
Physics,
Chemistry,
Mathematics or
Biology,
Diploma in
Pharmacy from
PCI approved
institution.
Bachelor of 2 yrs D.Pharm from
Pharmacy PCI approved
(Practice) institution.
Registered
pharmacist with
4 yrs. Pharmacy
Practice
experience in
community or
hospital
Doctor of Pharmacy 6 yrs 10+2 science
(Pharm.D) academic
stream with
Physics,
Chemistry,
Mathematics or
Biology
Diploma in
Pharmacy form
PCI approved
institution.
M.Pharm 2 yrs B.Pharm
(Specialization)
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. The issue was threadbarely deliberated. It was noted that-
a. There are approximately 1,985 D.Pharm and 1,439 B.Pharm institutes in the country. The annual intake of students in these institutes (both D.Pharm and B.Pharm) is 2,19,279.
W.P. No. 52314 OF 2019 16 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 b. This available workforce is enough to meet the current pharmacist-to-population needs of the country.
c. The 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.
d. The pass out students are not getting reasonably paid job opportunities in public as well as in private sector.
Considering the above facts, the House passed the following resolution unanimously:-
RESOLUTION "Taking into consideration the availability of sufficient qualified pharmacist workforce, the House unanimously resolved to put a moratorium on the opening of new pharmacy colleges for running Diploma as well as Degree course in pharmacy for a period of five years beginning from the academic year 2020-2021. This moratorium shall not be applicable in the North Eastern region of the country were there is a shortage of pharmacy colleges."
The said Resolution has been communicated to Ministry of Health and Family Welfare, Government of India on 17.7.2019 for information under intimation to All India Council for Technical Education (AICTE) and also posted on the Council's website.
This is for information and necessary action at your end". 3.10. On the issuance of the said communication, apparently, various representations were submitted by various stakeholders in the pharmacy educational sector. In view thereof, there were certain amendments W.P. No. 52314 OF 2019 17 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 which were carried out to the said first resolution, the amended resolution (hereinafter referred to as the "amended resolution") reads as under.
"PHARMACY COUNCIL OF INDIA To All State Government/Union Territories-
1. Chief Secretaries 2. Principal Secretaries (Health)
3. Principal Secretaries (Technical Education) Subject: Moratorium for new D.Pharm and B.Pharm institutions from 2020-2021 academic session.
Ref: Our letter No.14-56/2019-PCI (Moratorium) (For online Application (Pt.I)/3720-3826 dt. 17.7.2019.
Sri/Madam This is in continuation to this Council's letter dated the 17th July, 2019 on the above cited subject. In this connection, it is stated that the Pharmacy Council of India has been receiving representations from various quarters seeking clarification of the various aspects of the moratorium.
The matter was placed before the 107th Central Council in its meeting held on the 5th & 6th August, 2019 which noted that the spirit of the moratorium is to ensure-
Quality assurance in pharmacy education.
Availability of job opportunities to already available pharmacist workforce which is enough to meet the current pharmacist-to-population needs of the country as there are approximately 1,985 D.Pharm and 1,439 B.Pharm institutes in the country with an annual intake of more than 2.19 lakhs.
That there is no shortage of qualified faculty.
W.P. No. 52314 OF 2019 18 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 It was unanimously decided that moratorium on the opening of new pharmacy colleges for running Diploma as well as Degree course in pharmacy for a period of five years beginning form the academic year 2020- 2021 will be subject to following conditions-
a. The moratorium will not apply to the government institutions.
b. The moratorium will not apply to the institutions in North Eastern region.
c. The moratorium will not apply to the States / Union Territories where the number of D.Pharm and B.Pharm institutions (both combined) is less than
50. d. The institutions which has applied for opening D.Pharm and/or B.Pharm colleges for 2019-20 academic session either to the PCI or to the AICTE and the proposal was rejected or not inspected due to some reason or the other will be allowed to apply for 2020-21 academic session and this relaxation is given only for one year i.e., for 2020-21 academic session only.
e. Existing approved pharmacy institutions will be allowed to apply for increase in intake capacity as per PCI norms and / or start additional pharmacy Course(s).
This is for information and necessary action at your end".
3.11. The first resolution and amended resolution are hereinafter collectively referred to as the "impugned resolutions".
W.P. No. 52314 OF 2019 19 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 3.12. In view of the impugned resolutions which have been addressed to the Universities as also various governments, the applications of the petitioners could not be processed and the receipt of online application was stopped. It is aggrieved by the same that the petitioners are before this Court seeking for various reliefs as indicated above.
4. Objections:
4.1. On the filing of the petitions and issuance of notice, first respondent-Pharmacy Council has filed its objections contending as under:
4.2. Respondent No.1-Pharmacy Council of India is a statutory body created and working under the Pharmacy Act, 1948, Respondent No.1 is hereinafter referred to as "Pharmacy Council" or "Council" or "PCI".
4.3. The Pharmacy Council has come into being for the regulation of the profession and W.P. No. 52314 OF 2019 20 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 practice of Pharmacy through out the country. The Pharmacy Council is not only empowered to regulate the profession of Pharmacy but also the educational institutions from which a student of pharmacy obtains the required qualification.
4.4. The PCI establishes minimum standards of education and approves courses of study for pharmacists with appropriate level of experience and education in the field of Pharmacy so as to practice the said profession. It is stated that in terms Section 10 of the Act, the PCI can make the following Regulations for the following purposes:
4.4.1. "The nature and period of study and of practical training to be undertaken before admission to an examination;
4.4.2. The equipment and facilitates to be provided for students undergoing approved courses of study;
W.P. No. 52314 OF 2019 21 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 4.4.3. The subjects of examination and the standards therein to be attained; 4.4.4. Any other conditions of admission to examinations".
4.4.5. In terms of Section 12 any authority in a State which intends to conduct a course in Pharmacy is required to apply to the Central Government Council for approval in accordance with the Regulations and the authority which conducts an examination in a State of Pharmacy has to apply to Pharmacy Council of India [PCI] and seek approval for such examination. In the absence of the above, no college can conduct a course for study in Pharmacy nor a person can be awarded any decree or Diploma.
4.4.6. It is stated that in terms of Section 13, the Central Council could withdraw the approval accorded to the course of study and examination. 4.4.7. In terms of Section 16 the Executive Committee can appoint Inspector to inspect any institutions so as to check on compliance of various provisions. Hence, it is stated that the PCI Act does not just regulate a profession of Pharmacy but plays a vital role into regulating an entry into course by approving examination and course relating thereto.
W.P. No. 52314 OF 2019 22 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 4.4.8. There is also a bar under Section 42 of Pharmacy Act for any person to practice the profession of Pharmacy unless registered as Pharmacist in accordance with Pharmacy Act. If anyone does so, the same is treated as penal offence and punishable with imprisonment.
4.5. Respondent No.1 has contended that to achieve the objectives of the Pharmacy Act, the PCI has the following powers:
4.5.1. To prescribe minimum standard of education required for qualifying as a pharmacist i.e., framing of Education Regulations prescribing the conditions to be fulfilled by the institutions seeking approval of the PCI for imparting education in pharmacy. (Section 10 of the Pharmacy Act) 4.5.2. To ensure uniform implementation of the educational standards throughout the country. (Section 10 of the Pharmacy Act) 4.5.3. To approve the courses of study and examination for pharmacists i.e. approval of the academic training institutions providing pharmacy courses (Ref: section 12 of the Pharmacy Act) 4.5.4. To withdraw approval, if the approved course of study or an W.P. No. 52314 OF 2019 23 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 approved examination does not continue to be in conformity with the educational standards prescribed by the PCI. (Section 13 of the Pharmacy Act) 4.5.5. To approve qualifications granted outside the territories to which the Pharmacy Act extends i.e. the approval of foreign qualification (Section 14 of the Pharmacy Act) 4.5.6. To maintain the Central Register of Pharmacists (Section 15 A of the Pharmacy Act)"
4.6. Apart therefrom there are various averments and contentions taken as regards the power and authority of the PCI to frame regulations, the regulations framed, regulations applicable to a college of Pharmacy and/or a student of Pharmacy.
4.7. It is contended that PCI is having specialized knowledge in the field of Pharmacy to determine the number of pharmacists required and therefore if so required to reduce the intake of the number of students W.P. No. 52314 OF 2019 24 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 and/or not grant permission to any person or entity seeking to establish a new pharmacy college.
4.8. It is in pursuance of the same; it is alleged that in the 106th Central Council meeting held on April 2019 it was resolved to put a moratorium on the opening of the new pharmacy colleges for running of Diploma and degree courses for a period of five years beginning from 2020-21. The reason for the same, it is alleged is that there were more number of pharmacists than that required, job opportunity to graduating students is reduced and on this account, the Council was of the opinion that new colleges should not be opened.
4.9. This decision of the Council was communicated by its letter dated 17.07.2019 to all Governments and Universities. On W.P. No. 52314 OF 2019 25 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 receipt of certain representations, there were amendments carried out to the said resolution and the amended resolution was informed to various government and institutions under cover of its letter dated 9.9.2018 and it is contended that all relevant aspects have been taken into consideration and therefore, the same coming under the field of the policy decision of the PCI not to encourage further pharmacy colleges, the same cannot be interfered with by this Court.
4.10. Apart from the above, there are various details and data provided by respondent No.1-PCI as regards the number of pharmacists registered, persons retiring, the population of the country and pharmacists density per 1000 persons in India.
4.11. It is stated that pharmacists density per 1000 in India is 0.99 in 2019, it was W.P. No. 52314 OF 2019 26 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 predicted that in the year 2029 it would reach a density of 1.61 per 1000 persons which would be greater than average even in developed countries. Therefore, the Council was of the opinion that fresh colleges should not be started. It is contended that there was a provision made to encourage pharmacy colleges in the States which do not have 50 pharmacy institutions and in those places, additional pharmacy colleges could be established.
4.12. It is contended that decision of the PCI to declare a moratorium for five years was taken up after due application of mind, relying on the data and available material with the PCI.
4.13. The Ministry of Health and Family Welfare sought for explanation of PCI's decision, PCI submitted its explanation which has been W.P. No. 52314 OF 2019 27 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 accepted by the Ministry of Health and Family Welfare, on that basis it is contended that the decision of the Council is approved by the Ministry of Health and Family Welfare.
4.14. It is contended that the imparting of education is not trade or business and there is no right under Article 19 (1)(g) of the Constitution of India for the establishment of a college imparting any education and as such, the writ petition is not maintainable and is liable to be dismissed.
5. Rejoinder:
5.1. The petitioners have filed their rejoinder to the said objections contending that all allegations and/or amendments are required to be furnished to all State governments for approval and/or comments.
W.P. No. 52314 OF 2019 28 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 5.2. It is only after considering of comments, that the amendments could be approved. 5.3. The PCI has only power to regulate education in Pharmacy and running of a pharmacy college, such regulation does not extend to a taking policy decisions by the PCI.
5.4. The PCI being a statutory authority can only implement the Act and not formulate any policy decision.
5.5. The PCI cannot by so-called policy decision suspend its own functioning which statutory functions it is required to perform. 5.6. The power to regulate would not extend to prohibition under the Act.
5.7. The PCI being a creature under the Pharmacy Act cannot prohibit the establishment of a new pharmacy college W.P. No. 52314 OF 2019 29 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 and/or stop the education in Pharmacy itself.
5.8. The policy decision is a larger public policy which needs to be formulated by the State and cannot be so done by an executive action let alone by an entity created under statute.
5.9. The so-called expert wisdom in arriving at a decision can only be utilized to make any recommendation to the state to formulate as suitable policy in that regard, the issue of moratorium is not within the power of PCI, since the same would require a broader policy decision to be taken. 5.10. So long as the institutions satisfy the requirement of the Act and Regulation, the registration of the said institutions cannot W.P. No. 52314 OF 2019 30 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 be prevented or stopped by PCI under the Pharmacy Act.
5.11. The PCI does not have a power to suspend the approval process.
5.12. The amended resolution communicated on 9.9.2019 is also arbitrary, violative of Article 14, discriminates different colleges in the same class, there is preference given to Government colleges at the cost of the private colleges and therefore, on these grounds also the impugned notifications/resolutions are required to be quashed.
6. Sri. Madhusudhan Naik, learned senior counsel instructed by Sri. Omkar Kambi, learned counsel for the petitioners reiterating the contentions in the petition and rejoinder also submitted as under:
W.P. No. 52314 OF 2019 31 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 6.1. The PCI which is a creature and functionary under the enactment viz., Act of 1948 cannot suspend the enactment, more particularly Section 12 insofar as the petitioners are seeking for approval of the course which is in accordance with the requirement of the Act.
6.2. When the University i.e. respondent no.3 is willing to grant affiliation, the PCI imposing an embargo is not sustainable.
6.3. The resolution which has been passed does not even amount to a delegated legislation and is much lower than the delegated legislation. Even then it does not satisfy the requirements of a delegated legislation and is subject to judicial review and is required to be quashed. In this regard he relies on the decision in Kerala Samsthana Chethu Thozhilali Union v. State of Kerala, (2006) W.P. No. 52314 OF 2019 32 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 4 SCC 327 at paragraphs 32 to 36 which are reproduced hereunder:
"32. In G.P. Singh's Principles of Statutory Interpretation, 10th Edn., it is stated at p. 916:
"Grounds of judicial review: Delegated legislation is open to the scrutiny of courts and may be declared invalid particularly on two grounds: (a) Violation of the Constitution; and
(b) Violation of the enabling Act. The second ground includes within itself not only cases of violation of the substantive provisions of the enabling Act, but also cases of violation of the mandatory procedure prescribed. It may also be challenged on the ground that it cannot be said to be in conformity with the statute or Article 14 of the Constitution or that it has been exercised in bad faith. The limitations which apply to the exercise of administrative or quasi-judicial power conferred by a statute except the requirement of natural justice also apply to the exercise of power of delegated legislation. Rules made under the Constitution do not qualify as legislation in true sense and are treated as subordinate legislation and can be challenged in judicial review like delegated legislation. Compliance with the laying requirement or even approval by a resolution of Parliament does not confer any immunity to the delegated legislation but it may be a circumstance to be taken into account along with other factors to uphold its validity although as earlier seen a laying clause may prevent the enabling Act being declared invalid for excessive delegation."
33. In Clariant International Ltd. v. Securities & Exchange Board of India [(2004) 8 SCC 524] this Court observed: (SCC p. 547, para 63) W.P. No. 52314 OF 2019 33 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 "63. When any criterion is fixed by a statute or by a policy, an attempt should be made by the authority making the delegated legislation to follow the policy formulation broadly and substantially and in conformity therewith. (See Secy., Ministry of Chemicals & Fertilizers, Govt. of India v. Cipla Ltd. [(2003) 7 SCC 1] , SCC para 4.1.)
34. We may notice that in State of Rajasthan v. Basant Nahata [(2005) 12 SCC 77 : AIR 2005 SC 3401] it was pointed out: (SCC p. 103, para 66) "66. The contention raised to the effect that this Court would not interfere with the policy decision is again devoid of any merit. A legislative policy must conform to the provisions of the constitutional mandates. Even otherwise a policy decision can be subjected to judicial review."
35. In B.K. Industries v. Union of India [1993 Supp (3) SCC 621] this Court clearly held that a delegate cannot act contrary to the basic feature of the Act stating: (SCC p. 626, para
10) "The words 'so far as may be' occurring in Section 3(4) of the Cess Act cannot be stretched to that extent. Above all it is extremely doubtful whether the power of exemption conferred by Rule 8 can be carried to the extent of nullifying the very Act itself. It would be difficult to agree that by virtue of the power of exemption, the very levy created by Section 3(1) can be dispensed with. Doing so would amount to nullifying the Cess Act itself. Nothing remains thereafter to be done under the Cess Act. Even the language of Rule 8 does not warrant such extensive power. Rule 8 contemplates merely exempting of certain exciseable goods from the whole or any part of W.P. No. 52314 OF 2019 34 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 the duty leviable on such goods. The principle of the decision of this Court in Kesavananda Bharati v. State of Kerala applies here perfectly. It was held therein that the power of amendment conferred by Article 368 cannot extend to scrapping of the Constitution or to altering the basic structure of the Constitution. Applying the principle of the decision, it must be held that the power of exemption cannot be utilised for, nor can it extend to, the scrapping of the very Act itself. To repeat, the power of exemption cannot be utilised to dispense with the very levy created under Section 3 of the Cess Act or for that matter under Section 3 of the Central Excise Act."
36. The law that has, thus, been laid down is that if by a notification the Act itself stands affected the notification may be struck down." 6.4. The State Government is not averse to issuing necessary affiliation for the petitioners to establish their respective colleges, it is to be left to the wisdom of the State Government to decide if more colleges are required or not. The University having issued NOC and recommending for the grant of affiliation would establish that the State Government is not of the opinion nor has it formulated a policy for non grant of permission to pharmacy colleges.
W.P. No. 52314 OF 2019 35 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 6.5. That even if the resolution is considered to be a subordinate legislation, the power to make such subordinate legislation is derived from the enabling act and has to be in conformity therewith. The subordinate legislation cannot override the enabling Act. By way of resolution, the PCI has put an end to its own working which could not be done and such a resolution would be contrary to the enabling Act, therefore has to be set-aside. In this regard, he relies on the following decisions:
6.5.1. Global Energy Ltd. v. Central Electricity Regulatory Commission, (2009) 15 SCC 570 more particularly paragraphs 49 thereof which is reproduced hereunder:
49. In State of Rajasthan v. Basant Nahata Section 22-A of the Registration Act, 1908 which was inserted by Rajasthan Amendment Act 16 of 1976 was struck down, holding:
(1) the executive while making a subordinate legislation should not be W.P. No. 52314 OF 2019 36 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 permitted to open new heads of public policy, (2) the doctrine of public policy itself being uncertain cannot be a guideline for anything or cannot be said to be providing sufficient framework for the executive to work under it, (3) essential functions of the legislature cannot be delegated and it must be judged on the touchstone of Article 14 and Article 246 of the Constitution, and (4) only the ancillary and procedural powers can be delegated and not the essential legislative point.
6.5.2. Petroleum and Natural Gas Regulatory Board v. Indraprastha Gas Ltd., (2015) 9 SCC 209 more particularly paragraphs 45 to 53 which are reproduced hereunder:
"45. In St. Johns Teachers Training Institute v. NCTE it has been observed that: (SCC p. 331, para 10) "10. A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations. The power to make subordinate W.P. No. 52314 OF 2019 37 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions or the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details."
46. In Kunj Behari Lal Butail v. State of H.P. it has been ruled that: (SCC p. 46, para 13) "13. It is very common for the legislature to provide for a general rule-making power to carry out the purpose of the Act. When such a power is given, it may be permissible to find out the object of the enactment and then see if the rules framed satisfy the test of having been so framed as to fall within the scope of such general power confirmed. If rule- making power is not expressed in such a usual general form then it shall have to be seen if the rules made are protected by the limits prescribed by the parent Act."
47. In State of Karnataka v. H. Ganesh Kamath, it has been stated that: (SCC p. 410, para 7) "7. ... It is a well-settled principle of interpretation of statutes 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 W.P. No. 52314 OF 2019 38 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 enabling Act or which is inconsistent therewith or repugnant thereto."
48. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi: (SCC p. 433, para 18) "18. ... 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."
49. In General Officer Commanding- in-Chief v. Subhash Chandra Yadav, it has been held as follows: (SCC p. 357, para 14) "14. ... before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule-making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void."
50. Similar view has been expressed in State of T.N. v. P. Krishnamurthy and in Union of India v. S. Srinivasan wherein it has been held that: (S. Srinivasan case SCC p. 690, para 21) "21. ... If a rule goes beyond the rule- making power conferred by the statute, the same has to be declared W.P. No. 52314 OF 2019 39 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 ultra vires. If a rule supplants any provision for which power has not been conferred, it becomes ultra vires. The basic test is to determine and consider the source of power which is relatable to the rule. Similarly, a rule must be in accord with the parent statute as it cannot travel beyond it."
51. In Indramani Pyarelal Gupta v. W.R. Natu, the Court has held that one of the tests to determine whether a statutory body is vested with a particular power is to see whether exercise of such power is contraindicated by any specific provision of the enactment bringing such statutory body into existence. In Tata Power Co. Ltd. v. Reliance Energy Ltd , it has been ruled that save and except for the exercise of regulatory power which is specifically recognised by the statute, it is not open to the regulatory body to exercise a power which is not incorporated in the statute.
52. In this context, it is fruitful to refer to the authority in Academy of Nutrition Improvement v. Union of India. The two-Judge Bench was dealing with the issue of constitutional validity of the Prevention of Food Adulteration (Eighth Amendment) Rules, 2005. After discussing at length from various angles, the Court held that: (SCC pp. 296-97, paras 66-67) "66. Statutes delegating the power to make rules follow a standard pattern. The relevant section would first contain a provision granting the power to make rules to the delegate in W.P. No. 52314 OF 2019 40 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 general terms, by using the words 'to carry out the provisions of this Act' or 'to carry out the purposes of this Act'. This is usually followed by another sub-section enumerating the matters/areas in regard to which specific power is delegated by using the words 'in particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters'. Interpreting such provisions, this Court in a number of decisions has held that where power is conferred to make subordinate legislation in general terms, the subsequent particularisation of the matters/topics has to be construed as merely illustrative and not limiting the scope of the general power.
Consequently, even if the specific enumerated topics in Section 23(1-A) may not empower the Central Government to make the impugned rule (Rule 44-I), making of the rule can be justified with reference to the general power conferred on the Central Government under Section 23(1), provided the rule does not travel beyond the scope of the Act. 'But even a general power to make rules or regulations for carrying out or giving effect to the Act, is strictly ancillary in nature and cannot enable the authority on whom the power is conferred to extend the scope of general operation of the Act.
Therefore, such a power "will not support attempts to widen the purposes of the Act, to add new and W.P. No. 52314 OF 2019 41 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 different means to carrying them out, to depart from or vary its terms".' [See Principles of Statutory Interpretation by Justice G.P. Singh, 12th Edn., p. 1009 referring to Shanahan v. Scott and Utah Construction and Engg. (P) Ltd. v. Pataky
67. Rule 44-I is not a rule made or required to be made to carry out the provisions of the Act, having regard to its object and scheme. It has nothing to do with curbing of food adulteration or to suppress any social or economic mischief."
On the basis of the aforesaid analysis, the Court opined that: (Academy of Nutrition Improvement case, SCC p. 297, para 68) "68. We have already noticed that as at present there is no material to show that universal salt iodisation will be injurious to public health (that is to the majority of populace who do not suffer from iodine deficiency). But we are constrained to hold that Rule 44-I is ultra vires the Act and therefore, not valid."
53. In the case at hand, the Board has not been conferred such a power as per Section 11 of the Act. That is the legislative intent. Section 61 enables the Board to frame Regulations to carry out the purposes of the Act and certain specific aspects have been mentioned therein. Section 61 has to be read in the context of the statutory scheme. The regulatory W.P. No. 52314 OF 2019 42 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 provisions, needless to say, are to be read and applied keeping in view the nature and textual context of the enactment as that is the source of power. On a scanning of the entire Act and applying various principles, we find that the Act does not confer any such power on the Board and the expression "subject to" used in Section 22 makes it a conditional one. It has to yield to other provisions of the Act. The power to fix the tariff has not been given to the Board. In view of that the Board cannot frame a Regulation which will cover the area pertaining to determination of network tariff for city or local gas distribution network and compression charge for CNG. As the entire Regulation centres around the said subject, the said Regulation deserves to be declared ultra vires, and we do so."
6.5.3. Union of India v. S. Srinivasan, (2012) 7 SCC 683 more particularly paragraphs 27 to 29 which are reproduced hereunder::
27. In St. Johns Teachers Training Institute v. National Council for Teacher Education, it has been observed that: (SCC p. 331, para 10) "10. A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations.
The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the W.P. No. 52314 OF 2019 43 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details."
28. In Global Energy Ltd. v. Central Electricity Regulatory Commission this Court was dealing with the validity of clauses (b) and (f) of Regulation 6-A of the Central Electricity Regulatory Commission (Procedure, Terms and Conditions for Grant of Trading Licence and Other Related Matters) Regulations, 2004. In that context, this Court expressed thus: (SCC p. 579, para 25) "25. It is now a well-settled principle of law that the rule-making power 'for carrying out the purpose of the Act' is a general delegation. Such a general delegation may not be held to be laying down any guidelines. Thus, by reason of such a provision alone, the regulation-making power cannot be exercised so as to bring into existence substantive rights or obligations or disabilities which are not contemplated in terms of the provisions of the said Act."
29. In the said case, while discussing further about the discretionary power, delegated legislation and the requirement of law, the Bench observed thus: (Global Energy Ltd. case, SCC p. 589, para 73) W.P. No. 52314 OF 2019 44 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 "73. The image of law which flows from this framework is its neutrality and objectivity: the ability of law to put sphere of general decision-making outside the discretionary power of those wielding governmental power. Law has to provide a basic level of 'legal security' by assuring that law is knowable, dependable and shielded from excessive manipulation. In the contest of rule-making, delegated legislation should establish the structural conditions within which those processes can function effectively. The question which needs to be asked is whether delegated legislation promotes rational and accountable policy implementation. While we say so, we are not oblivious of the contours of the judicial review of the legislative Acts. But, we have made all endeavours to keep ourselves confined within the well- known parameters."
6.6. Respective petitioners in their respective petitions have applied with all the requisite requirement with required infrastructure and the LIC has recommended for grant of affiliation/NOC to the petitioners, the Inspection report does not find any fault with the petitioners.
W.P. No. 52314 OF 2019 45 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 6.7. That there is no public policy to declare a moratorium inasmuch as the University after inspection has granted 'No objection' and recommended for affiliation. The State Government is ready to grant affiliation but is only on account of moratorium imposed that is is unable to do so.
6.8. The PCI cannot formulate the public policy being a creature of statute.
6.9. Even otherwise, he submits that the resolution is violative of Article 14 of the Constitution inasmuch as there is discrimination between the petitioners and those who had applied for the establishment of Pharmacy college in the year 2019-20. He relies on the Judgment of the Hon'ble Apex Court in the case of Nitte Education Trust v. State of Karnataka, reported in ILR 1992 Kar 2049 W.P. No. 52314 OF 2019 46 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019
3. (i) xxx
(ii) xxx
(iii) xxx
(iv) xxx
(v) The so called public policy the ground on which the Government refused to grant permission to the petitioners to start Medical Colleges is neither in existence nor it is in reality a public interest.
(vi) xxx ......
12. Regarding the second proposition, which of course is very important and appropriate to be decided whether action of the Government in not considering the petitioners' request for granting permission to start Medical Colleges is arbitrary or resultant of colourable exercise of the power conferred on them, it is now necessary to be considered now from the material placed and the discussion made above. It is not in dispute that when an application is filed by an institution seeking affiliation or permission to start a College, the same has to be processed as required under Section 53 of the Universities Act. Section 53(5) of the Universities Act gives power to the University to place the application before the Government and the Government has to take a Decision under Section 53(5) either rejecting the application or granting the same, of course, in the case of refusal, the Government has to give reason. 'Public Policy' is not defined in the Universities Act. When a duty is cast on the Government to take a decision, it is needless to state that such duty shall be exercised fairly and in a reasonable manner without giving room for arbitrariness or discrimination. Otherwise such action will violate the Equality Clause as enshrined W.P. No. 52314 OF 2019 47 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 under Article 14 of the Constitution which reads as follows:
"14. Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
The idea behind Article 14 of the Constitution is that all persons subjected to any legislation should be treated alike under like circumstances and conditions. Further, there shall not be any discrimination between persons and persons and any class legislation, but the classification to be made by the State shall be reasonable and rational, viz., such classification must be based on some qualities or characteristics which are to be found in all the persons grouped together. Secondly, the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others. Further the differentia must have a rational relation to the object sought to be achieved. In other words, if an order or action of the Government is discriminatory, unreasonable and arbitrary, the same has to be said as illegal. Because, it was the desire of the Founding Fathers of the Constitution that equality shall become the living reality for the large masses of the people of the nation.
15. Regarding 'Public Policy', Prof. H.W.R. Wade in his Administrative Law, Fifth Edition, at pages 330 and 331 on Over-Rigid Policies observed as follows:
"An authority can fail to give its mind to a case, and thus fail to exercise its discretion W.P. No. 52314 OF 2019 48 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 lawfully, by blindly following a policy laid down in advance. It is a fundamental rule for the exercise of discretionary power that discretion must be brought to bear on every case; each one must be considered on its own merits and decided as the public interest requires at the time."
The learned author further observed:
"It is not allowed to 'pursue consistency at the expense of the merits of individual cases.' .........
Where it is at liberty to make a choice between conflicting policies, it may decide to make no exceptions, as where it adopts a policy of making all schools in its area into comprehensive schools and abolishing all grammar schools. But even then it is in a stronger position if it has listened fairly to the objections of parents and others concerned."
From this it is clear that even assuming that there is a policy the same shall not be mistaken that it can be extended for ever as is done in the cases of the petitioners by saying that no more Medical Colleges are required during the Plan period.
16. In view of the reasons given above, it has to be said that the approach of the Government in not considering the applications of the petitioners for according permission to start Medical Colleges by putting forth the theory of public policy a mere pretence. However laudable the policy put forth by the Government to refuse permission to start Medical College, the conduct of the Government preferring a few W.P. No. 52314 OF 2019 49 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 and prohibiting others as demonstrated is arbitrary and not in a fair and reasonable manner.
6.10. Even if the resolution is regarded to be an executive action, the said executive action also is to be in compliance with the statutory provision and not contrary to the statute under which the executive is to function. The PCI by issuing a moratorium has acted against the Pharmacy Act. In this regard relies on the following decisions:
6.10.1. Rudraiah Raju v. State of Karnataka, ILR 1986 Kar 587, more particularly at para 46 (i) which is reproduced hereunder:
"46(i) Learned Counsel for the respondents, however, submitted that whether to entrust the work of bottling to persons who are already distillers or arrack vendors, was a matter of policy decision and it was open for the State to take such policy decision at any time and the same need not even be recorded. In support of the above contention, Counsel for W.P. No. 52314 OF 2019 50 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 the respondents relied on the Judgment of the Supreme Court in State of U.P. v. Vijay Bahadur Singh [(1982) 2 SCC 365 : AIR 1982 SC 1234.] Relevant portion of the judgment reads:
"....The Government may change or refuse its policy from time to time and we see no reason why change of policy by the Government, subsequent to the auction but before its confirmation may not be a sufficient justification for the refusal to accept the highest bid. It cannot be disputed that the Government has the right to change its policy from time to lime, according to the demands of the time and situation and in the public interest.
xxxxxxxxxxxx It is true that there is no express policy decision of the Government recorded after the date of auction. It is implicit in the very action of the Government in cancelling the auction and allotting the forest lots to the Forest Corporation."
It is true that as far as the decision on policy matters is concerned, it is open for the executive to take any decision which in the opinion of the Executive is good for the State and the fact of taking such a policy decision could be gathered from the decision itself. The Court cannot inquire into the wisdom or correctness of such policy decision.
W.P. No. 52314 OF 2019 51 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019
(ii) But it is well settled that the Executive has no power to take any such decision contrary to the statutory provisions. If a matter is not covered by any statutory provision, then it is open for the Executive to take a new policy decision or even superseding an earlier policy decision taken by the Government, subject of course to the provisions of the Constitution." 6.10.2. Royal Medical Trust v. Union of India, (2015) 10 SCC more particularly at para 31 which is reproduced hereunder:
31. MCI and the Central Government have been vested with monitoring powers under Section 10-A and the Regulations.
It is expected of these authorities to discharge their functions well within the statutory confines as well as in conformity with the Schedule to the Regulations. If there is inaction on their part or non-observance of the time schedule, it is bound to have adverse effect on all concerned. The affidavit filed on behalf of the Union of India shows that though the number of seats had risen, obviously because of permissions granted for establishment of new colleges, because of disapproval of renewal cases the resultant effect was net loss in terms of number of seats available for the academic year. It thus not only caused loss of opportunity to the students community but at the same time caused loss to the society in terms W.P. No. 52314 OF 2019 52 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 of less number of doctors being available. MCI and the Central Government must therefore show due diligence right from the day when the applications are received. The Schedule giving various stages and time-limits must accommodate every possible eventuality and at the same time must comply with the requirements of observance of natural justice at various levels. In our view the Schedule must ideally take care of:
(A) Initial assessment of the application at the first level should comprise of checking necessary requirements such as essentiality certificate, consent for affiliation and physical features like land and hospital requirement. If an applicant fails to fulfil these requirements, the application on the face of it, would be incomplete and be rejected. Those who fulfil the basic requirements would be considered at the next stage.
(B) Inspection should then be conducted by the Inspectors of MCI. By very nature such inspection must have an element of surprise. Therefore sufficient time of about three to four months ought to be given to MCI to cause inspection at any time and such inspection should normally be undertaken latest by January.
Surprise inspection would ensure that the required facilities and infrastructure are always in place and not borrowed or put in temporarily.
(C) Intimation of the result or outcome of the inspection would then be communicated. If the infrastructure and facilities are in order, the medical college concerned should be given requisite W.P. No. 52314 OF 2019 53 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 permission/renewal. However, if there are any deficiencies or shortcomings, MCI must, after pointing out the deficiencies, grant to the college concerned sufficient time to report compliance.
(D) If compliance is reported and the applicant states that the deficiencies stand removed, MCI must cause compliance verification. It is possible that such compliance could be accepted even without actual physical verification but that assessment be left entirely to the discretion of MCI and the Central Government. In cases where actual physical verification is required, MCI and the Central Government must cause such verification before the deadline. (E) The result of such verification if positive in favour of the medical college concerned, the applicant ought to be given requisite permission/renewal. But if the deficiencies still persist or had not been removed, the applicant will stand disentitled so far as that academic year is concerned.
6.11. The PCI by passing a resolution has disabled itself from performing its functions which cannot be so done. The PCI being a creature of statute being required to discharge certain functions, has to discharge such functions. By declaring a W.P. No. 52314 OF 2019 54 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 moratorium, the PCI has put an end to its own activities and its obligations which is not permissible. In this regard he relies on the decision in the case of Sylvester Toppo v. State of Chhattisgarh, AIR 2006 Chh 1:
17. The Apex Court based on the arguments advanced by learned counsel for the parties, referred to S.A. de Smith's Judicial Review of Administrative Action (2nd Edition) wherein it is observed as follows:--
"A tribunal entrusted with a discretion must not, by the adoption of a general rule of policy, disable itself from exercising its discretion in individual cases......
..... But the rule that it formulates must not be based on considerations extraneous to those contemplated by the enabling Act; otherwise it has exercised its discretion in validly by taking irrelevant considerations into account. Again, a factor that may properly be taken into account in exercising a discretion may become an unlawful fetter upon discretion if it is elevated to the status of a general rule that results in the pursuit of consistency at the expense of the merits of individual cases........ A forty on, the authority must not predetermine the issue, as by resolving to refuse all applications or all applications of a certain class or all applications except those of a certain class and then W.P. No. 52314 OF 2019 55 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 proceeding to refuse an application before it in pursuance of such a resolution....."
20. The Apex Court also relied on British Oxygen v. Minister of Technology, (1970) 3 All ER 165, holding that the House of Lords was in that case considering the provisions of the industrial Development Act, 1966. The Act provided for the Board of Trade making to any person a grant towards approved capital expenditure incurred by that person in providing new machinery or plaint for carrying on a qualifying industrial process in the course of the business. After stating that the Board was intended to have a discretion and after examining the provisions of the Act the House of Lords came to the conclusion that the Board was not bound to pay grants to all who are eligible nor did not provisions give any right to any person get a grant. After quoting the passage from the decision in R. v. Port of London Authority, already referred to, Lord Reid went on to state:
"But the circumstances in which discretions are exercised vary enormously and that passage cannot be applied literally in every case. The general rule is that anyone who has to exercise a statutory discretion must not shut (his) ears to the application (to quote from Bankes, L.J.). I do not think that there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or W.P. No. 52314 OF 2019 56 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that provided the authority is always willing to listen to anyone with something new to say-- of course I do not mean to say that there need be an oral hearing. In the present case the Minister's officers have carefully considered all that the appellants have had to say and I have no doubt, that they will continue to do so. The Minister might at any time change his mind and therefore I think that the appellants are entitled to have a decision whether these cylinders are eligible for grant."
Viscount Dilhorne again after referred to the passage in R. v. Port of London Authority, said:
"Bankes, L.J. clearly meant that in the latter case there is a refusal to exercise the discretion entrusted to the authority or tribunal but the distinction between a policy decision and a rule may not be easy to draw. In this case it was not challenged that it was within the power of the Board to adopt a policy not to make a grant in respect of such an item. That policy might equally well be described as a rule it was both reasonable and right that the Board should make known to those interested the policy that it was going to follow. By doing so fruitless applications involving expense and expenditure of time might be avoided. The Board says that it has not refused to consider any application. It considered the appellants'. In these W.P. No. 52314 OF 2019 57 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 circumstances it is not necessary to decide in this case whether, if it had refused to consider an application on the ground that it related to an item costing less than £ 25, it would have acted wrongly.
I must confess that I feel some doubt whether the words used by Bankes, L.J. in the passage cited above are really applicable to a case of this kind. It seems somewhat pointless and a waste of time that the Board should have to consider applications which are bound as a result of its policy decision to fail. Representations could be course be made that the policy should be changed."
21. The Apex Court further relied on Halsbury (Vol. 1, 4th Edn. para 33 at page 35) in which it was held that:
"A public body endowed with a statutory discretion may legitimately adopt general rules or principles of policy to guide itself as to the manner of exercising its own discretion in individual cases, provided that such rules or principles are legally relevant to the exercise of its powers, consistent with the purpose of the enabling legislation and not arbitrary or capricious. Nevertheless, it must not disable itself from exercising a genuine discretion in a particular case directly involving individual interest, hence it must be prepared to consider making an exception to the general rule if the circumstances of the case warrant special treatment. These propositions, evolved mainly in the context of licensing and other regulatory powers, have been applied to other situations, for example, the award of discretionary investment W.P. No. 52314 OF 2019 58 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 grants and the allocation of pupils to different classes of schools. The amplitude of a discretionary power may, however, be so wide that the competent authority may be implied entitled to adopt a fixed rule never to exercise its discretion in favour of a particular class of persons, and such a power may be expressly conferred by statute."
22. If we look into the above decisions referred and relied upon by the Apex Court in the matter of Shri Rama (AIR 1974 SC 1745) (supra), while considering the fact whether in a particular matter the Government has fettered its discretion while exercising the power under a particular law or not, the Court is required to interpret and decide that how the power vested in the authority has been exercised by taking into consideration the whole background of the Act and purpose behind it and also while exercising the discretion a tribunal must not, by the adoption of a general rule or policy, disable itself from exercising its discretion in individual cases. The rule that it formulates must not be based on considerations extraneous to those contemplated by the enabling act; otherwise it has exercised its discretion invariably by taking irrelevant consideration into account. The authority must not predetermine the issue, as by resolving to refuse all applications or all applications of a certain class or applications except those of a certain class, and then proceeding to refuse an application before it in pursuance of such a decision. There are on the one hand cases where the tribunal in the honest exercise of its discretion W.P. No. 52314 OF 2019 59 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case. As Lord Reid observed the general rule is that anyone who has to exercise a statutory discretion must not 'shut (his) ears to the application' (to quote from Bankes, L.J.). As per Halsbury, a public body endowed with a statutory discretion may legitimately adopt general rules or principles of policy to guide itself as to the manner of exercising its own discretion in individual cases, provided that such rules or principles are legally relevant to the exercise of its powers, consistent with the purpose of the enabling legislation and not arbitrary or capricious. Nevertheless, it must not disable itself from exercising a genuine discretion in a particular case directly involving individual interests.
7. Sri.Badrinath, learned counsel for petitioners in W.P.No.52867/2019 adopts the arguments of Sri.Mudhusudan Naik, learned Senior Counsel for the petitioners.
8. Sri.S.S.Haveri, learned counsel for respondent No.1 reiterating the contents of the statement of objections submitted as under:
W.P. No. 52314 OF 2019 60 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 8.1. Imparting education is not a fundamental right under 19(1)(G) as contended by the petitioners, at the most it is only a business and therefore, the petitioners cannot contend that there is any violation of the fundamental rights as alleged or otherwise.
8.2. The object of the Pharmacy Act is to regulate the field of education relating to pharmacy. The said aspect of regulation extends upto the identification and ascertaining of whether there are more pharmacy colleges required or not. It is therefore for the PCI to decide on the requirement of colleges, intake of those colleges and all other aspects relating thereto.
8.3. He submits that there are more than 400 pharmacy colleges in Karnataka and W.P. No. 52314 OF 2019 61 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 therefore, the number of students who pass out of the said colleges are more than what required in the State of Karnataka. On account of excess colleges, the standard of education is getting adversely affected since there are not many qualified teachers available to teach the said subjects in the pharmacy colleges which he submits is excess in requirement and in that regard he relies on the decision of the Hon'ble Apex Court in Jawaharlal Nehru Technological University's case (supra) which is extracted hereunder:
21. At the same time in the conclusions and recommendations made by the Government in perspective plan, it has been pointed out that AICTE may declare a holiday on the establishment of new technical institutions for the academic year 2018-19. This holiday applies not only to the establishment of new engineering colleges but may also be extended inter alia to B-Pharmacy institutions. It was also pointed out that in case the Pharmacy Council of India has not accorded the approval, AICTE should not grant approval to the Pharmacy colleges. It was inter alia mentioned in the recommendations that new programmes W.P. No. 52314 OF 2019 62 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 may be sanctioned in Mining, Granite, Textile, Pharmacy, Automobile etc. based on "new technologies". However, it was not the case, that course would be based on new technology.
Following is the relevant extract of the conclusions and recommendations made by the State:
"6. CONCLUSIONS & RECOMMENDATIONS Thus, the various concerns that arise from all the above data are summarized below for the consideration of the All India Council of Technical Education:--
Issue Recommendation The AICTE has been sanctioning the The AICTE may Colleges routinely every year without thus declare a actually assessing the 'Need' of the holiday on the State. With a massive number of such establishment of Colleges established in the State, there New Technical is a severe shortage of qualified Institutions from Teaching faculty, which is seriously the Academic affecting the Quality of Education Year 2018-19. offered by many of these institutions. The holiday Moreover, it is observed that a large applies not only number of seats are falling vacant every with regard to year as the total number of seats the available is far more than the takers. establishment of During the year 2016-17 for instance, New Engineering there are about 32784 seats and during Colleges in the 2017-18, there are 29367 seats that State but may remained vacant in the Engineering also be extended course (based on the affiliations). With to B.Pharmacy,
poor admissions, the 'financial viability' MBA/MCA in running several colleges is becoming Institutions."
a problem and thus making Colleges to offer poor Quality of Education, which is totally undesirable. In fact, in several Colleges, the admissions during last year and this year in Engineering and W.P. No. 52314 OF 2019 63 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 MCA programmes are just single digits. This situation has led to an unhealthy competition among the Colleges for admissions by wooing the students with all sorts of false promises. This is highly harmful to the Professional Educational System in the State.
"OTHER RECOMMENDATIONS In view of all the above and to improve the Quality of Education in Private, Unaided Colleges in the State of Telangana, it is recommended that:
• New Programmes may be sanctioned such as Mining, Granite, Textile, Pharmacy, Automobile, Civil Eng. Construction Technology based on New Technologies and the needs of the Industry keeping in view the 14 Thrust Areas mentioned in Para 5 of Page 14 of this Plan."
27. The Court has observed that the State Act which impinges upon the provisions of the Central Act has to be held to be void. In the case, the issue was of derecognition. The power of the recognition of institution is squarely reserved under the Central Act i.e., AICTE Act. Thus, it would have power to derecognition also and for the purpose, the procedure has been given in the AICTE Act. Thus, in Adhiyaman Educational & Research Institute, the factual situation was totally different. In that context, the discussion has been made about the provisions of Section 10 and the provisions of the State Act of Tamil Nadu. The provisions in State Act of 1982 are not repugnant to AICTE Act. The vires of provisions and validity of Act of 1982 has not been questioned and otherwise, also there is no room to accept the submission that the W.P. No. 52314 OF 2019 64 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 provisions of Section 20 of the Act, 1982 are inoperative.
31. The counsel appearing for the respondents were not able to point out any of the provisions in the AICTE Act and rules for adjudging requirement of the locality have been framed by the Council. In the absence of guidelines or norms framed to check the mushroom growth of the institutions, the University cannot be deprived of considering the said aspect. The State Government had also sent a communication to AICTE regarding the alarming increase in the number of technical educational institutions in the area in question and imbalanced growth. The decision of State has been taken in an objective manner and the same is based on the consideration of data and could not be said to be irrational or arbitrary in any manner whatsoever. The policy decision of the State Government cannot be said to be illegal and on that basis, the University has taken the decision in terms of Section 20 of the Act of 1982."
8.4. On the above grounds, he submits that the writ petitions as filed are not to be entertained and are required to be dismissed.
9. Sri.Madhusudan Naik, learned Senior counsel in rejoinder would submit that W.P. No. 52314 OF 2019 65 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 9.1. Under the Pharmacy Act, 1948, moratorium which is sought to be imposed by the PCI cannot be done by way of passing a resolution of the Council. If there are any regulations required to be made, the same has to comply with the requirement of Section 10 of the Pharmacy Act. 9.2. In terms of Section 10(3) any draft of the regulation and all subsequent amendments thereto is required to be furnished by the Central Council to all State Governments for approval and take into consideration the comments of each State government received within three months from the furnishing of copies.
9.3. Thus in effect, he submits that without the approval of the central government, no regulation can be introduced by the Council.
W.P. No. 52314 OF 2019 66 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 9.4. The present moratorium having been declared by way of a resolution does not even satisfy the requirement of Section 10. This being without prejudice argument, the same being without prejudice to the contention that the regulation made by the Council cannot amount to prohibition by way of moratorium, power of regulation can only be used to regulate in terms of what is stated under Section 12, 13, 14 of the Pharmacy Act.
9.5. He relies on the decision of the Apex Court Unni Krishnan, J.P. v. State of A.P., 1993(1) SCC 645 more particularly, paras 63 to 72, 203 and 204 which are reproduced hereunder for easy reference:
63. In each of these cases, depending upon the statute, either "occupation" or "business"
has come to be defined. Certainly, it cannot be contended that establishment of an educational institution would be "business". Nor again, could that be called trade since no trading W.P. No. 52314 OF 2019 67 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 activities are carried on. Equally, it is not a profession. It is one thing to say that teaching is a profession but, it is a totally different thing to urge that establishment of an educational institution would be a profession. It may perhaps fall under the category of occupation provided no recognition is sought from the State or affiliation from the University is asked on the basis that it is a fundamental right. This position is explained below.
64. However, some of the learned counsel relied on Bangalore Water Supply and Sewerage Board v. R. Rajappa to urge that the activity of running an educational institution was an industry. In that case, Krishna Iyer, J. observed: (SCC p. 266, para 98) "To christen education as a mission, even if true, is not to negate its being an industry. We have to look at educational activity from the angle of the Act, and so viewed the ingredients of education are fulfilled. Education is, therefore, an industry and nothing can stand in the way of that conclusion."
65. This ruling was relied on in A. Sundarambal (Miss) v. Government of Goa, Daman and Diu. It was held: (SCC p. 45, para 6) "Thus it is seen that even though an educational institution has to be treated as an industry in view of the decision in the Bangalore Water Supply and Sewerage Board v. R. Rajappa, the question whether teachers in an educational institution can be considered as workmen still remains to be decided."
66. It requires to be carefully noted that while considering as to what would constitute an industry under the Industrial Disputes Act, these observations came to be made.
W.P. No. 52314 OF 2019 68 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 Certainly, that is very different from claiming a fundamental right under Article 19(1)(g).
67. Even on general principles, the matter could be approached this way. Educational institutions can be classified under two categories:
1. Those requiring recognition by the State and
2. Those who do not require such a recognition.
67a. It is not merely an establishment of educational institution, that is urged by the petitioners, but, to run the educational institution dependent on recognition by the State. There is absolutely no fundamental right to recognition in any citizen. The right to establishment and run the educational institution with State's recognition arises only on the State permitting, pursuant to a policy decision or on the fulfilment of the conditions of the statute. Therefore, where it is dependent on the permission under the statute or the exercise of an executive power, it cannot qualify to be a fundamental right. Then again, the State policy may dictate a different course.
68. The logical corollary of holding that a fundamental right to establish an educational institution is available under Article 19(1)(g) would lead to the proposition, right to establish a University also. In fact, this Court had occasion to point out in S. Azeez Basha v. Union of India thus:
"Before we do so we should like to say that the words 'educational institutions' are of very wide import and would include a University also. This was not disputed on behalf of the Union of India and therefore it may be accepted that a W.P. No. 52314 OF 2019 69 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 religious minority had the right to establish a University under Article 30(1). The position with respect to the establishment of Universities before the Constitution came into force in 1950 was this. There was no law in India which prohibited any private individual or body from establishing a University and it was therefore open to a private individual or body to establish a University. There is a good deal in common between educational institutions which are not Universities and those which are Universities. Both teach students and both have teachers for the purpose. But what distinguishes a University from any other educational institution is that a University grants degrees of its own while other educational institutions cannot. It is this granting of degrees by a University which distinguishes it from the ordinary run of educational institutions. (See St. David's College, Lampeter v. Ministry of Education.) Thus in law in India there was no prohibition against establishment of Universities by private individuals or bodies and if any University was so established it must of necessity be granting degrees before it could be called a University. But though such a University might be granting degrees it did not follow that the Government of the country was bound to recognise those degrees."
If there is no fundamental right to establish a University a fortiori a fundamental right to establish an educational institution is not available.
69. By implication also a fundamental right of the nature and character conferred under Article 30 cannot be read into Article 19(1)(g). The conferment of such a right on the minorities in a positive way under Article 30 W.P. No. 52314 OF 2019 70 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 negates the assumption of a fundamental right in this behalf in every citizen of the country.
70. In Ahmedabad St. Xaviers College Society v. State of Gujarat it is observed: (SCC p. 743, para 8) "The right to establish and administer educational institutions of their choice has been conferred on religious and linguistic minorities so that the majority who can always have their rights by having proper legislation do not pass a legislation prohibiting minorities to establish and administer educational institutions of their choice. If the scope of Article 30(1) is made an extension of the right under Article 29(1) as the right to establish and administer educational institutions for giving religious instruction or for imparting education in their religious teachings or tenets, the fundamental right of minorities to establish and administer educational institutions of their choice will be taken away."
At page 192 it is observed: (SCC pp. 743-44, paras 11 and 12) "Article 30 is a special right to minorities to establish educational institutions of their choice. This Court said that the two Articles create two separate rights though it is possible that the rights might meet in a given case. The real reason embodied in Article 30(1) of the Constitution is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutions of their choice for the purpose of giving their children the best general education to make them complete men and women of the country. The minorities are given this protection under Article 30 in order to preserve and strengthen W.P. No. 52314 OF 2019 71 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 the integrity and unity of the country. The sphere of general secular education is intended to develop the commonness of boys and girls of our country. This is in the true spirit of liberty, equality and fraternity through the medium of education. If religious or linguistic minorities are not given protection under Article 30 to establish and administer educational institutions of their choice, they will feel isolated and separate. General secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole."
Then again, at page 224 it is observed: (SCC p. 772, para 77) "The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence. The great leaders of India since time immemorial had preached the doctrine of tolerance and catholicity of outlook. Those noble ideas were enshrined in the Constitution. Special rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minorities autonomy in the matter of the administration of those institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact. The majority in a system of adult franchise hardly needs any protection. It can look after itself and protect its interests. Any measure wanted by the majority can without W.P. No. 52314 OF 2019 72 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 much difficulty be brought on the statute book because the majority can get that done by giving such a mandate to the elected representatives. It is only the minorities who need protection, and Article 30, besides some other Articles, is intended to afford and guarantee that protection."
71. The argument that every activity or occupation by the mere fact of its not being obnoxious or harmful to society, cannot by itself be entitled to protection as fundamental right. As pointed out above, some rights, by their very nature, cannot be qualified to be protected as fundamental rights.
72. Accordingly, it is held that there is no fundamental right under Article 19(1)(g) to establish an educational institution, if recognition or affiliation is sought for such an educational institution. It may be made clear that anyone desirous of starting an institution purely for the purposes of educating the students could do so but Sections 22 and 23 of the University Grants Commission Act which prohibits the award of degrees except by a University must be kept in mind.
203. For the purpose of these cases, we shall proceed on the assumption that a person or body of persons has a right to establish an educational institution in this country. But this right, we must make it clear, is not an absolute one. It is subject to such law as may be made by the State in the interest of general public.
204. We must, however, make it clear, and which is of crucial importance herein, that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation. In Ahmedabad St. Xaviers College Society v. State of Gujarat it W.P. No. 52314 OF 2019 73 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 has been held uniformly by all the nine learned Judges that there is no fundamental right to affiliation. Ray, C.J., stated that this has been "the consistent view of this Court". They also recognised that recognition or affiliation is essential for a meaningful exercise of the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academic or other body empowered to grant affiliation to other educational institutions. In other words, it is open to a person to establish an educational institution, admit students, impart education, conduct examination and award certificates to them. But he, or the educational institution has no right to insist that the certificates or degrees (if they can be called as such) awarded by such institution should be recognised by the State -- much less have they the right to say that the students trained by the institution should be admitted to examinations conducted by the University or by the Government or any other authority, as the case may be. The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. It is a matter of substantial significance -- the very life-blood of a private educational institution. Ordinarily speaking, no educational institution can run or survive unless it is recognised by the Government or the appropriate authority and/or is affiliated to one or the other Universities in the country. Unless it is recognised and/or affiliated as stated above, it's certificates will be of no use.
W.P. No. 52314 OF 2019 74 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 No one would join such educational institution. As a matter of fact, by virtue of the provisions of the U.G.C. Act, noticed hereinabove, no educational institution in this country except a University is entitled to award degrees. It is for this reason that all the private educational institutions seek recognition and/or affiliation with a view to enable them to send the students trained by them to appear at the examinations conducted by the Government/University. The idea is that if such students pass the said examination, the Government/University will award its degree/diploma/certificate to them. These educational institutions follow the syllabus prescribed by the Government/University, have the same courses of study, follow the same method of teaching and training. They do not award their own degrees/qualifications. They prepare their students for University/Government examinations, request the University/Government to permit them to appear at the examinations conducted by them and to award the appropriate degrees to them.
Clearly and indubitably, the recognised/affiliated private educational
institutions, supplement the function performed by the institutions of the State. Theirs is not an independent activity but one closely allied to and supplemental to the activity of the State. In the above circumstances, it is idle to contend that imparting of education is a business like any other business or that it is an activity akin to any other activity like building of roads, bridges etc. In short, the position is this: No educational institution except a University can award degrees (Sections 22 and 23 of the U.G.C. Act). The private educational institutions cannot award their own degrees. Even if they award any certificates or other testimonials they have no practical value inasmuch as they are not good for obtaining W.P. No. 52314 OF 2019 75 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 any employment under the State or for admission into higher courses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory
-- in the interest of general public -- upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising/affiliating authority is the State, it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation/recognition is not there for anybody to get it gratis or unconditionally. In our opinion, no Government, authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions. Doing so would amount to abdicating its obligations enjoined upon it by Part III; its activity is bound to be characterised as unconstitutional and illegal. To reiterate, what applies to the main activity applies equally to supplemental activity. The State cannot claim immunity from the obligations arising from Articles 14 and 15. If so, it cannot confer such immunity upon its affiliates. Accordingly, we have evolved -- with the help of the counsel appearing before us and keeping in view the positive features of the W.P. No. 52314 OF 2019 76 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 several Central and State enactments referred to hereinbefore -- the following scheme which every authority granting recognition/affiliation shall impose upon the institutions seeking such recognition/affiliation.
9.6. He again reiterates the principles laid down in Rudraiah Raju v. State of Karnataka, ILR 1986 Kar 587 9.7. On the basis of the above contentions, Sri.Madhusudan Naik, learned Senior counsel for petitioners would submit that the petitions as filed are required to be allowed and all the reliefs sought for are required to be granted in favour of the petitioners.
10. Taking into consideration the various submissions made by the Counsels and on perusal of the documents made part of the records, the points that would arise for consideration of this court are:
W.P. No. 52314 OF 2019 77 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019
1. Whether the PCI can by invoking its power to regulate, prohibit the opening of the new Pharmacy colleges?
2. Can PCI exercise the power under the statute so as to suspend the application of the statute itself?
3. Whether the PCI can formulate a broader public policy applicable for the entire country?
4. Whether the PCI being a creature of the statute and being a statutory body is required to act in terms of the statute?
5. Is a right to open a college/educational institution a fundamental right under Article 19(1)(g) of the Constitution?
6. Whether the impugned resolutions are arbitrary, in violation of Article 14 of the Constitution of India and violate the rights of the Petitioners, vested in them as per the Principles of Promissory Estoppel?
7. In the circumstances, are the communication dated 17.07.2019 and 9.9.2019 proper and valid?
8. What Order?
11. I answer the above points as under:
12. Before answering the questions, in order to appreciate the contentions, some of the important W.P. No. 52314 OF 2019 78 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 and applicable provisions of The Pharmacy Act, 1948 are required to be considered.
13. The Act provides for regulation and approval for a course of study and withdrawal of approval in respect of the Pharmacy course. 13.1. Section 10 deals with Education Regulations and is reproduced hereunder for easy reference:
"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--
2.1. the nature and period of study and of practical training to be undertaken before admission to an examination;
2.2. the equipment and facilities to be provided for students undergoing approved courses of study;
W.P. No. 52314 OF 2019 79 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 2.3. the subjects of examination and the standards therein to be attained;
2.4. any other conditions of admission to examinations.
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.
13.2. Section 12 deals with approval of courses of study and examinations, which is extracted herein below for easy reference:
12 Approval courses of study and examinations:
W.P. No. 52314 OF 2019 80 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 Any authority in the State which conducts a course of study for pharmacists may apply to the Central Council for approved of the course, and the Central Council, if satisfied, after such enquiry as it thinks fit to make, 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 purpose of admission to an approved examination for pharmacists.
Any authority in a state which holds an examination in Pharmacy may apply to the Central Council for approval of the examination, and the Central Council, if satisfied, after such enquiry as it thinks fit to make, that the said examination is in conformity with the Education Regulations, shall declare the said examination to be an approved examination for the purpose of qualifying for registration as a pharmacist under this Act.
Every authority in the States which conducts an approved course of study or holds an approved examination shall furnish such information as the Central Council may, from time to time, require as to the courses of study and training and examination to be undergone, as to the ages at which such courses of study and examination are required to be undergone and generally as to the requisites for such courses of study and examination.
13.3. Section 13 deals with withdrawal of approval which is extracted hereunder for easy reference:
"13. Withdrawal of approval W.P. No. 52314 OF 2019 81 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 Where the Executive committee reports to the Central Council that an approved course of study or an approved examination does not continue to be in conformity with the Education Regulations, the Central Council shall give notice to the authority concerned of its intention to take into consideration the question of withdrawing the declaration of approval according to the course of study or examination, as the case may be, and the said authority shall within three months from the receipt of such notice forward to the Central Council through the State Government such representation in the matter as it may wish to make.
After considering any representation which may be received from the authority concerned and any observations thereon which the State Government may think fit to make, the Council may declare that the course of study or the examination shall be deemed to be approved only when completed or passed, as the case may be, before a specified date."
13.4. Section 14 deals with qualifications granted outside the territories under which Pharmacy Act applies and is reproduced hereunder for easy reference:
14. Qualifications granted outside the territories to which this Act extends:
The Central Council, if it is satisfied that qualification in Pharmacy granted by an authority outside the [territories to which this Act extends] affords a sufficient guarantee of the requisite skill and knowledge, may declare such qualification to be an approved W.P. No. 52314 OF 2019 82 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 qualification for the purpose of qualifying for registration under this Act, and may for reasons appearing to it sufficient at any time declare that such qualification shall be deemed 27[, subject to such additional conditions, if any, as may be specified by the Central Council,] to be approved only when granted before or after a specified date :
Provided that no person other than a citizen of India possessing such qualification shall be deemed to be qualified for registration unless by the law and practice of the State or country in which the qualification is granted, persons of India origin holding such qualification are permitted to enter and practice the profession of Pharmacy."
14. POINT NO.1: Whether the PCI can by invoking its power to regulate, prohibit the opening of the new Pharmacy colleges?
14.1. Sri.Madhusudan Naik, learned Senior counsel has contended that PCI has only power to regulate and not to prohibit, whereas Sri.S.S.Haveri, learned counsel for respondent No.1 has contended that the power to regulate includes the power to prohibit.
14.2. The terms 'Prohibit' and 'Regulation' in Stroud's Judicial dictionary of Words and Phrases, IV Edition, Volume-IV at page Nos.2143 and 2307 respectively are defined as under:
W.P. No. 52314 OF 2019 83 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 "PROHIBIT- A condition to ... prohibit ... the licensee from using (Patents and Designs Act 1907 (c.29), s.38(1) "prohibit" means that the condition will be such as to oblige the licensee in certain circumstances not to use the other person's goods"
"To "Regulate" a supply of water does not mean to shut it off altogether. Therefore, where an Act required the consumers of water to provide "proper ball or stop-cocks, or other necessary apparatus, for regulating" the supply, that did not include an out-of-door screw-down valve, whereby the water could be shut off from coming into a consumer's house."
14.3. The terms 'Prohibit' and 'Regulation' in P.Ramanatha Aiyar's Law Lexicon, II Edition, page Nos.1534 and 1640 respectively are defined as under:
"Prohibit- the word "prohibit" when used in a grant of power to a city corporation, giving it a right to prohibit certain occupations, et., is not materially different from the word "prevent". In fact, "prevent" is the stronger word, conveying the idea of prohibition and use of means necessary to give it effect.
"Regulate- to regulate means to adjust by rule, method, of established mode; to direct by rule of restriction; to subject to governing principles or laws.
To correct by control; to control, govern or direct by rules or regulations; to W.P. No. 52314 OF 2019 84 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 adjust in respect of time, quantity, etc. with reference to standard or purpose."
14.4. The Hon'ble Apex Court in Union of India v.
Asian Food Industries, (2006) 13 SCC 542 at paras 43, 44 and 46 has dealt with the difference between prohibition, restriction and regulation. Said paras are reproduced hereunder for easy reference:
43. We are, however, not oblivious of the fact that in certain circumstances regulation may amount to prohibition. But, ordinarily the word "regulate" would mean to control or to adjust by rule or to subject to governing principles (see U.P. Coop. Cane Unions Federations v. West U.P. Sugar Mills Assn. whereas the word "prohibit" would mean to forbid by authority or command.
The expressions "regulate" and "prohibit" inhere in them elements of restriction but it varies in degree. The element of restriction is inherent both in regulative measures as well as in prohibitive or preventive measures.
44. We may, however, notice that this Court in State of U.P. v. Hindustan Aluminium Corpn. stated the law thus: (SCC p. 243, para 34) "34. It appears that a distinction between 'regulation' and 'restriction' or 'prohibition' has always been drawn, ever since Municipal Corpn. of the City of Toronto v. Virgo. 'Regulation' promotes the freedom or the W.P. No. 52314 OF 2019 85 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 facility which is required to be regulated in the interest of all concerned, whereas 'prohibition' obstructs or shuts off, or denies it to those to whom it is applied. Oxford English Dictionary does not define 'regulate' to include prohibition so that if it had been the intention to prohibit the supply, distribution, consumption or use of energy, the legislature would not have contended itself with the use of the word 'regulating' without using the word 'prohibiting' or some such word, to bring out that effect."
"46. The terms, however, indisputably would be construed having regard to the text and context in which they have been used. Section 3(2) of the 1992 Act uses prohibition, restriction and regulation. They are, thus, meant to be applied differently. Section 51 of the 1962 Act also speaks of prohibition. Thus, in terms of the 1992 Act as also the policy and the procedure laid down thereunder, the terms are required to be applied in different situations wherefor different orders have to be made or different provisions in the same order are required therefor."
14.5. The Apex Court in A.P. Electricity Regulatory Commission v. R.V.K. Energy (P) Ltd., (2008) 17 SCC 769 at paras 81, 82, 83, 84, 85, 86, 87 and 86 has held as under:
81. The power of the Commission in terms of the 1998 Act must be considered having regard to the provisions of Section 11 W.P. No. 52314 OF 2019 86 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 thereof. We may at the outset notice two different functions specified under the Act.
Section 11 of the 1998 Act states about the functions of the Commission whereas Section 12 thereof states about the powers of the State Government.
"82. No doubt the functions of the Commission are wide. It, in terms of clause
(e) of sub-section (1) of Section 11 of the 1998 Act, is entitled to regulate the purchase, distribution and supply as also utilisation of electricity but when the Act speaks of regulation, the same would not ordinarily mean that it can totally prohibit supply to third parties. It may do so in exceptional situations. Such an order is not to be passed.
83. The Commission, keeping in view the purported object of the Act, ordinarily was bound to give effect to the policy decision of the State. The Act was enacted to encourage competition. It speaks of privatisation of generation of power. The Commission's power to regulate supply of power must be considered keeping in view the purport and object of the Act.
84. In Advanced Law Lexicon, 3rd Edn., p.
4026, "Regulation" has been defined as under:
"A regulation is a rule or order prescribed by a superior for the management of some business or for the government of a company or society or the public generally."
85. In State of Tripura v. Sudhir Ranjan Nath this Court held: (SCC pp. 674-75, para
17) W.P. No. 52314 OF 2019 87 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 "17. ... This in turn raises the question, what is the meaning and ambit of the expression 'regulate' in Section 41(1) of the Act? [Section 41(1) empowers the State Government 'to regulate the transit of all timber and other forest produce'.] The expression is not defined either in the Act or in the rules made by the State of Tripura. We must, therefore, go by its normal meaning having regard to the context in which, and the purpose to achieve which, the expression is used. As held by this Court in Jiyajeerao Cotton Mills Ltd. v. M.P. Electricity Board [1989 Supp (2) SCC 52] the expression 'regulate' 'has different shades of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the relevant provisions, and as has been repeatedly observed, the court while interpreting the expression must necessarily keep in view the object to be achieved and the mischief sought to be remedied' (at p. 79, para 32). Having regard to the context and other relevant circumstances, it has been held in some cases that the expression 'regulation' does not include 'prohibition' whereas in certain other contexts, it has been understood as taking within its fold 'prohibition' as well."
86. It has been held by this Court in Cotton Mills Ltd. v. M.P. Electricity Board [1989 Supp (2) SCC 52] that the power to regulate does not include the power to prohibit. The Court held: (SCC p. 79, para 32) "32. ... The expression 'regulate' occurs in other statutes also, as for example, the Essential Commodities Act, 1955, and it has been found difficult to give the word a precise definition. It has different shades of W.P. No. 52314 OF 2019 88 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 meaning and must take its colour from the context in which it is used having regard to the purpose and object of the relevant provisions, and as has been repeatedly observed, the court while interpreting the expression must necessarily keep in view the object to be achieved and the mischief sought to be remedied."
87. In Talcher Municipality v. Talcher Regulated Market Committee [(2004) 6 SCC 178] this Court held: (SCC p. 181, para 14) "14. The power to regulate buying and selling of agricultural produce must be interpreted in the context in which the same has been used. Each person, whoever is engaged in buying and selling of the agricultural produce in the market shall be subject to the regulation for which the same has been enacted. The expression 'regulation' is a term which is capable of being interpreted broadly. It may in a given case amount to prohibition.
96. We are, however, of the opinion that while considering the application for grant of exemption, the Commission did not have any jurisdiction to issue a direction that all MPPs must supply electricity to A.P. Transco only. The power and extent of jurisdiction of the Commission to regulate supply is a wide one but the same, in our opinion, does not extend to prohibition or positive direction that the supply of total energy produced must be made to A.P. Transco while exercising the said jurisdiction. In fact there was no occasion for issuing such a direction. It is one thing to say that the Commission is entitled to fix tariff but therefor it cannot then take into consideration the case of A.P. Transco alone".
W.P. No. 52314 OF 2019 89 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 14.6. In this background, what is required to be seen is whether the usage of the word 'regulate' in the Pharmacy act could mean and include prohibition or not. 14.7. As aforesaid and as held by the Hon'ble Apex Court, Regulation normally would not include prohibition unless in the context of the matter regulation has to be interpreted to mean and include prohibition. 14.8. The Pharmacy Act is "an act to regulate" the profession of pharmacy and the object is stated to be "whereas it is expedient to make better provision for the regulation of the profession and practice of pharmacy and for that purpose to constitute Pharmacy Councils; it is hereby enacted as follows"
14.9. It is in pursuance of this object that the Act lays down the constitution of the Pharmacy W.P. No. 52314 OF 2019 90 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 council, the members of the Council and in pursuance thereof the regulations that the Council can come up with under Section 10.
Section 11 deals with application of education regulations to States; Section 12 deals with approved of courses of study and examination; Section 13 relating to withdrawal of approval; Section 14 is relating to qualification granted outside the territory to which the Act extends; Section 15 deals with mode of declaration; Section 15A and B- the register of Pharmacist, etc. 14.10. The reading of the entire Act and the scheme of the Act indicates that it is only for the purpose of regulation that the Act has been promulgated. It can by no stretch of imagination be contended that the power to regulate would include power to prohibit under the said Act. The power to prohibit W.P. No. 52314 OF 2019 91 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 being an extraordinary power needs to be specifically read into the Act, such a power cannot be assumed to exist on mere conjunctures or assumptions.
14.11. By way of the moratorium introduced by the Council, the opening of new colleges is sought to be prohibited by the PCI. Such a right to prohibit is not available to the PCI.
PCI can only regulate the colleges already in existence, as also prescribe its qualification and requirement for establishment of a new college, the lecturers at the said colleges, the course contents and methodology but it cannot by using such regulatory power prohibit the establishment of the college itself. Such a power is not vested in the Council.
14.12. I answer POINT NO.1 by holding that the PCI cannot by invoking its power to W.P. No. 52314 OF 2019 92 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 regulate, prohibit the opening of the new Pharmacy colleges, regulation in the context of PCI can not extend to prohibition, unless the power can be specifically read into the Pharmacy Act, the Pharmacy Act giving no such indication or scope, PCI would only have power to regulate and not prohibit the opening of new Pharmacy Colleges.
15. POINT NO.2: Can PCI exercise the power under the statute so as to suspend the application of the statute itself?
15.1. As referred to above, there are various functions that had to be discharged by PCI in terms of regulating the Pharmacy colleges, education as also examinations relating thereto. One of the important power of the PCI is to grant recognition for any new Pharmacy college. It is this statutory power W.P. No. 52314 OF 2019 93 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 coupled with duty which is required to be discharged by the PCI.
15.2. Sri.Madhusudan Naik, learned Senior counsel has relied upon the Judgment in the cases of Petroleum and Natural Gas Regulatory Board (supra) and Kerala Samsthana Chethu Thozhilali Union (supra) to contend that the delegate to whom the power is delegated has to act within the limits to the authority conferred under the Act. The delegate can neither extend or restrict the scope of his work or activities. He further submitted that the Council has not been conferred the power to declare such a moratorium. Such a moratorium could only be imposed by the State/legislature. The Council only has a regulatory power within the statutory scheme. Moratorium being in excess of the W.P. No. 52314 OF 2019 94 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 regulatory power has to be quashed. The PCI being a creature of the statute cannot suspend the obligation of the statute itself by passing such a resolution since the resolution has the effect of stopping the PCI from performing its obligations.
15.3. Sri.S.S.Haveri, learned counsel for the respondent on the other hand contended that the issuance of moratorium and/or implementation thereof is part of the functioning of the PCI itself and that functioning has been done by the PCI under the Pharmacy Act and therefore, contended that the submission of Sri.Madhusudhan Naik, learned counsel for the petitioner in this regard be rejected.
15.4. It is relevant to take into consideration the scope and ambit of working of the PCI. The PCI being a creature of the Pharmacy Act, if W.P. No. 52314 OF 2019 95 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 not for the Pharmacy Act, the PCI would not be in existence.
15.5. Once the PCI has come into existence, the PCI being a creature under the Pharmacy Act, it is required for the creation to act in terms of statute under which it is created. There can be situations where the authority is provided with power to prohibit certain activities, but by such a prohibition could the very activity of the authority for which it is created be put to an end is a question to be decided by this Court.
15.6. As answered above, in Point No.1, the power to regulate by the PCI cannot extend to power to prohibit. The power to prohibit is not specifically conferred on the PCI. Prohibition can be imposed only by way of a policy decision which is normally required to be taken by the state.
W.P. No. 52314 OF 2019 96 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 15.7. In the present case, the PCI being conferred with the powers as stated above, it is but required for the PCI to perform its functions and discharge its obligations. The PCI cannot abdicate its responsibilities by merely declaring a moratorium. The declaration of moratorium as contended by Sri.Madhusudan Naik, learned counsel would put an end to the works to be carried out by the PCI in respect of recognition of colleges, approval of colleges, admission of students, examination of students to the new colleges, their examinations and certification thereof. Such a manner of putting an end to the activities of the PCI by the PCI itself, cannot be recognized or countenanced. 15.8. The PCI has by way of impugned resolution virtually put a stop to its own functioning inasmuch as PCI has resolved by itself not to W.P. No. 52314 OF 2019 97 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 grant any permission for setting up of new Pharmacy colleges. The scheme of the Act as referred to above requires the PCI to approve the establishment of new colleges. The PCI cannot in the garb of its exercise of power contend that it would not grant any permission for establishment of new colleges. If such a power is exercised, then one of the important functions of the PCI would come to an end as regards the establishment of new colleges though the function of PCI would continue as regards the existing colleges and existing students. Thus I am of the considered opinion that the PCI cannot by imposing fetters on itself contend that it will not grant permission for establishment of new colleges and issue a moratorium to that effect.
W.P. No. 52314 OF 2019 98 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 15.9. I answer Point No.2 by holding that PCI by declaring moratorium has virtually put an end to its own functioning, thus in effect suspending the statute itself, PCI cannot by exercising the power under the statute suspend the application of the statute itself.
16. POINT NO.3: Whether the PCI can formulate a broader public policy applicable for the entire country?
16.1. PCI is a creature of statute. The PCI has no independent existence and is only a delegate under the Pharmacy Act. PCI is neither a government nor a State. 16.2. A policy decision can primarily be formulated by the State or the Centre inasmuch as it is policy formulated by the said government which is to be implemented in its respective jurisdiction.
W.P. No. 52314 OF 2019 99 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 An executive can also formulate a policy, in the absence of a specific policy of the state, where the policy of the state is to enable the establishment of pharmacy colleges, the PCI cannot override the state policy and impose a moratorium which would be contrary to the state policy.
16.3. The PCI being a creature of statute is required to act within the four corners of the statute. It cannot overreach the boundaries of the statute.
16.4. Sri. Haveri Learned Counsel for the 1st respondent, relying on the decision of the Apex Court in Jawaharlal Nehru Technological University case (supra), has sought to contend that the apex court has recognised the power of AICTE to prohibit the establishment of colleges on account of mushrooming of educational W.P. No. 52314 OF 2019 100 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 institutions. Thus he submits that said Judgment applies on all fours to the present facts where the PCI has taken into account the mushrooming of Pharmacy colleges and in order to decongest the number of colleges and to limit the colleges to what is required, the moratorium was imposed. In support thereof he relies on para 17 and 20 thereof which have been reproduced hereinabove.
16.5. What is required to be observed from the said decision is the context and background of the same. In that case, the University had refused to grant 'No Objection Certificate' (NOC) on the ground that the Government of Telangana was of the opinion and had come to a policy decision that there was no requirement to establish new technical institutions. Thus, it was on W.P. No. 52314 OF 2019 101 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 account of the policy decision of the State of Telangana that the University did not grant NOC, though in that case, the PCI was ready to grant permission to set up the institution.
16.6. It is in that background the Apex Court has held that when the State was of the opinion that no new colleges are to be set up and policy decision had been taken, the said policy decision could not be questioned in a writ petition, the policy decision could not be said to be illegal and therefore, held that the decision of the PCI in not granting the NOC was proper and valid.
16.7. In the present case, the facts are diametrically opposite. In that, it is the University which had called for the application to establish colleges including that in Pharmacy viz., B.Pharma, W.P. No. 52314 OF 2019 102 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 M.Pharma, Pharma-D and Pharma-D(PB). Thus the University has invited the entities like the petitioners to set up colleges, and subsequently the application having been filed by the petitioner; the University has granted NOC after being satisfied that all the requirements have been fulfilled, upon the inspection and recommendation report submitted by the LIC.
16.8. Sri.N.K.Ramesh, learned counsel appearing for the University submitted that the University has no objection for the establishment of the colleges by the petitioners and that the University has already issued a NOC and the LIC of the University has approved the facilities available. He submits that the matter is between the petitioners and the PCI.
W.P. No. 52314 OF 2019 103 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 16.9. On enquiry with the counsel for the State, Sri.Sandesh Kumar also submitted that the State has no objection for the petitioners to set up Pharmacy colleges and there is no policy decision taken by the State to prohibit or restrict the opening of any new Pharmacy colleges.
16.10. If the said decision in Jawaharlal Nehru Technological University case (supra) is considered in the light of the above facts, I am of the considered opinion that the same would not be applicable to the present facts since the State has not formulated any policy to prohibit the setting up of new pharmacy colleges. Thus, there is no power under the Pharmacy Act for the PCI to prohibit the establishment of colleges of its own accord.
W.P. No. 52314 OF 2019 104 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 16.11. Sri.Haveri, learned counsel for respondent No.1 submitted that on the resolutions being circulated, the Ministry of Health has caused an enquiry from the PCI as to why the resolution had been passed and it is on this account that the PCI submitted its reply to the Health Ministry which has been accepted. On this ground he contends that the explanation having been accepted by the Health Ministry, the policy formulated by respondent No.1 has been accepted by the Health Ministry and is thereof a policy of the Health Ministry.
16.12. Having considered the above submissions, I am of the considered opinion that the fact that Health Ministry has questioned the PCI and PCI had to reply to the Health Ministry would itself indicate that the PCI by itself cannot formulate any policy and any action W.P. No. 52314 OF 2019 105 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 of PCI can be questioned by the concerned government.
16.13. Mere not taking action on the basis of the explanation given by the PCI would not clothe the PCI with policy making powers. The PCI being a creature of the statute as observed above can only act within the four corners of the statute and the so-called policy formulated by the PCI by way of resolution cannot be sustained under any law.
16.14. Hence, I answer Point No. 3 by holding that there is no power under the Pharmacy Act for the PCI to prohibit the establishment of colleges of its own accord. A policy decision as stated once taken by the State a creature of the statute cannot take or make any policy decisions, as such, PCI cannot W.P. No. 52314 OF 2019 106 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 form a broader policy on the basis of the data available with it. At the most, the PCI can place it before the concerned government for consideration and in such a situation; the PCI can also recommend certain actions to be taken by the concerned government. Apart therefrom the PCI cannot now contend that it has formulated a policy which would be applicable to all States and Union territories.
17. POINT NO.4: Whether the PCI being a creature of the statute and being a statutory body is required to act in terms of the statute? 17.1. The power of the statutory body to exercise a particular power would be circumscribed by the statute itself. A statutory body cannot perform the role of a legislature nor can it W.P. No. 52314 OF 2019 107 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 formulate subordinate legislation contrary to the statute under which it comes into being. 17.2. The scope and power to make subordinate legislation is derived from the enabling Act, which in this case is only as regards the regulation of pharmacists and pharmacy colleges as detailed hereinabove. Apart from the regulations so permitted no other subordinate legislation could be effected by the PCI.
17.3. The declaration of moratorium would not come within the rule making power of the PCI but only that of the State/legislature. As held by this Court in Nitte Education Trust v. State of Karnataka, reported in ILR 1992 Kar 2049, the authority cannot refuse to perform its functions. If there is a refusal, there has to be a valid reason required to be furnished. The reason furnished in the W.P. No. 52314 OF 2019 108 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 present case is that there is mushrooming of colleges and hence, the PCI in its wisdom has deemed it fit to impose a moratorium as also to restrict the number of colleges in each State.
17.4. There is conflict between this so-called public policy of the PCI and the policy of the State of Karnataka where the college of the petitioners have sought to be established, in such a situation it is for the State to decide as to what is to be done or not.
17.5. Though PCI may be a technical body which has collected information, the said information only can be furnished and made available with recommendations thereof to the State which will decide what is to be done.
W.P. No. 52314 OF 2019 109 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 17.6. The PCI cannot by itself on data gathered by itself decide to stop its own functioning by issuing a moratorium.
17.7. A delegatee under the statute cannot travel beyond the statute, is a well recognized principle of law which has been violated by the PCI in the present case.
17.8. I Answer Point No.4 by holding that the PCI being a creature of the statute and being a statutory body is required to act in terms of the statute, within the four corners of the statute and not travel beyond it.
18. Point No.5: Is a right to open a college/educational institution a fundamental right under Article 19(1)(g) of the Constitution?
18.1. Sri.Madhusudhan Naik, learned Senior counsel for the petitioner has contended that a right to open a college is a fundamental W.P. No. 52314 OF 2019 110 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 right under Article 19(1)(g) of the Constitution. Per contra, Sri. Haveri, learned counsel for the respondent had contended otherwise. Both counsels have relied upon the decision of the Apex court in Unni Krishnan's case (supra).
18.2. This question has been answered by the Apex Court in Unni Krishnan's case (supra) the right to establish a college has been held to be a fundamental right, however the right to affiliation has been held to be subject to state policy in that regard. The law in this regard is laid down in paragraph 226 (3) of the judgement which reads as under
226. For the above reasons the writ petitions and civil appeals except W.P. (C) No. 855 of 1992, C.A. No. 3573 of 1992 and the civil appeals arising from SLP Nos. 13913 and 13940 of 1992 are disposed of in the following terms:
1. XXX W.P. No. 52314 OF 2019 111 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019
2. XXX
3. A citizen of this country may have a right to establish an educational institution but no citizen, person or institution has a right much less a fundamental right, to affiliation or recognition, or to grant-in-
aid from the State. The recognition and/or affiliation shall be given by the State subject only to the conditions set out in, and only in accordance with the scheme contained in Part III of this Judgment. No Government/University or authority shall be competent to grant recognition or affiliation except in accordance with the said scheme. The said scheme shall constitute a condition of such recognition or affiliation, as the case may be, in addition to such other conditions and terms which such Government, University or other authority may choose to impose. Those receiving aid shall, however, be subject to all such terms and conditions, as the aid giving authority may impose in the interest of general public.
4. XXX
19. Point No.6: Whether the impugned resolutions are arbitrary, in violation of Article 14 of the Constitution of India and violate the rights of the Petitioners, vested in them as per the Principles of Promissory Estoppel? 19.1. The petitioners in the present matters have with an intention to establish pharmacy colleges obtained the land or set-apart the W.P. No. 52314 OF 2019 112 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 land, put up construction of the pharmacy college or set apart already constructed building for the pharmacy college, equipped the said pharmacy college and staffed it, the LIC of the University has inspected and found all the requirements to have been met by the respective colleges and therefore approved the affiliation and the matter is pending before the State Government for approval. 19.2. The petitioners having taken all the above actions, on the basis of the then prevalent law, i.e., anyone could open a pharmacy college as long as they satisfy the requirement, but the Rules have been changed all of a sudden, firstly declaring a blanket moratorium, and thereafter amending the moratorium to selectively permit colleges by the Government and/or applications made for the year 2019, etc. W.P. No. 52314 OF 2019 113 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 19.3. This change in policy midstream has adversely affected the petitioners. The petitioners on the basis of principles of promissory estoppel and though weaker, the right to legitimate expectation would be entitled to establish their colleges as held out under the Pharmacy Act.
19.4. In these kind of matters it is not permissible for the State let alone a delegate to wake up one day and impose the moratorium for a period of five years commencing immediately. Any such policy which would affect not only people like petitioners but several others across the country would have to be taken after providing due notice and taking into consideration the adverse impact that may be caused by the implementation of such a policy.
W.P. No. 52314 OF 2019 114 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 19.5. The resolution passed by the PCI (even if it were to be a policy, which in this case it is'nt) ought to have taken into consideration and exempted all persons or entities who have commenced the process of implementation of a pharmacy college. Since by the very commencement, huge amounts of financial resources and other resources would be expended on such a venture by such person or entity. 19.6. Admittedly, the process of establishment of the Pharmacy college by the petitioners having been started and LIC having inspected and recommended the colleges, there are documents and information already in the public domain. Though the PCI claims that is has collected data as regards the number of pharmacists in the country, it has failed in collecting data and/or details as W.P. No. 52314 OF 2019 115 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 regards the persons who will be adversely affected by the resolution passed by the PCI. This data should have formed an important part of the decision making process which admittedly has not been taken into consideration.
19.7. In the amended resolution it is stated that the moratorium will not apply to the government institutions, there are no reasons given for the same, it is not understood on what basis the government institutions have been given this preferential treatment, such treatment is violative of Article 14 of the Constitution. 19.8. In the amended resolution it is stated that the moratorium will not apply to the institutions in North Eastern region, again no reasons have been given for such a preferential treatment, it is also not stated as W.P. No. 52314 OF 2019 116 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 to whether there are qualified teachers available in the north-eastern region to teach at such institutions, the decision making process is as opaque as it can be. 19.9. In the first, as well as amended resolution it is stated that the moratorium will not apply to the States / Union Territories where the number of D.Pharm and B.Pharm institutions (both combined) is less than 50, this does not take into account the population of the state, the criteria which has been applied state wise without considering the relevancy thereof is again violative of Article 14 of the constitution, a State like Pudducherry, cannot be treated on the same footing as Uttar Pradesh, which again establishes the flawed reasoning and decision making process by the PCI.
W.P. No. 52314 OF 2019 117 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 19.10. By way of the amended resolution the institutions which had applied for opening D.Pharm and/or B.Pharm colleges for 2019- 20 academic session either to the PCI or to the AICTE and the proposal was rejected or not inspected due to some reason or the other will be allowed to apply for 2020-21 academic session and this relaxation is given only for one year i.e., for 2020-21 academic session only, also is flawed, since by doing so, all persons and entities who had applied prior to 2019 and or commenced the process prior to 2019 have been excluded without giving any reasons, more so when the time taken for the establishment of the facilities in order to make it suitable for inspection by the LIC would probably take 2 years and more.
W.P. No. 52314 OF 2019 118 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 19.11. In the amended resolution it is stated that the existing approved pharmacy institutions will be allowed to apply for an increase in intake capacity as per PCI norms and/or start additional pharmacy Course(s), is again arbitrary, in as much as the same is contradictory to the very reason for passing the resolution. If new colleges were not to be established since the number of students passing out the pharmacy existing pharmacy colleges were more than that required, why would the PCI permit the existing colleges to apply for an increase in intake. The same is also preferential discrimination in favour of existing colleges at the cost of new colleges to be established.
19.12. I answer Point No. 6 by holding that even if it were to be held that the PCI had the power to issue a moratorium, W.P. No. 52314 OF 2019 119 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 the said power has been exercised in an arbitrary manner, in violation of Article 14 of the Constitution by discriminating persons/entities like the petitioners who have taken all necessary steps for establishment of a Pharmacy college. Thus in my considered opinion the action of the PCI even if held to be permissible, the same is violative of Article 14 of the Constitution, violates the principles of promissory estoppel and legitimate expectation, is a power exercised without taking into consideration the relevant factors and as such, is also violative of Wednesbury's principle and is therefore, liable to be set-aside.
20. POINT NO.7: In the circumstances, are the communication dated 17.07.2019 and 9.9.2019 proper and valid?
W.P. No. 52314 OF 2019 120 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 20.1. As discussed above, the PCI could not impose fetters on itself by issuing a moratorium. Furthermore, the power of the PCI is only to regulate and would not extend to prohibition.
20.2. As further noticed above, the PCI cannot formulate a broader policy for all States and Union territories. In this background, I am of the considered opinion that the PCI could not have passed the resolutions dated 17.7.2019 or 9.9.2019.
20.3. Having held that the power to regulate does not extend to prohibition, the PCI by way of above resolution has sought to prohibit the establishment of new Pharmacy colleges on the ground that the existing number of colleges are more than what is required. It is further stated that there would be a W.P. No. 52314 OF 2019 121 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 shortage of teaching staff, as also a shortage of employment if more colleges are permitted to be set up.
20.4. In today's world of laissez-faire, i.e. open market economy, such a prohibition cannot be applied by way of a policy decision, let alone by way of a resolution passed by the PCI.
20.5. As held by the Apex Court in Unni Krishnan's case (supra), a citizen may have a right to establish an educational institution but no citizen, person or institution has a right muchless a fundamental right to affiliation, recognition or to grant-in-aid from the State. Therefore the establishment of the educational institution cannot be prevented or prohibited. It is only the grant of affiliation or recognition or grant-in-aid which is the subject matter of the State's powers.
W.P. No. 52314 OF 2019 122 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 20.6. Once a college is established the grant of affiliation or recognition by the PCI will be subject to the compliance with the provisions of the Act including the regulations that may be framed under Section 10, approval of the course of study and examination under Section 12, qualifications of the teachers, the infrastructure required at the college, etc., it is only if all these parameters are not met affiliation can be refused, however, if they are met, the affiliation will have to be granted by the PCI, the same cannot be refused if all parameters are met. 20.7. The regulation of colleges is a continuing one inasmuch as in the event of after grant of recognition or affiliation if the educational institution does not conform with the requirements, the approval granted can be withdrawn.
W.P. No. 52314 OF 2019 123 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 20.8. Therefore, it is for the person who sets up the educational institution to comply and continue to comply with all the requirements under the Pharmacy Act, if they are not so complied, the recognition could be withdrawn.
20.9. The recognition as aforestated could also be withdrawn on account of no sufficient qualified staff being available at the college. Thus the ground raised by the PCI that the establishment of college itself to be stopped on account of no qualified teachers being available cannot be countenanced. It is for the petitioners to hire the necessary staff, including teachers, to be in compliance with the requirements.
20.10. As regards the contention that students may not get employment and/or there are more W.P. No. 52314 OF 2019 124 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 number of pharmacists than that are required, it is for the student and/or his/her parents to decide on the same. A student may be very much interested in studying pharmacy and set up his own pharmacy or any number of other permutations and combinations. Such a student's aspiration cannot be put an end by the PCI on the ground that there are more number of pharmacists in India than that are available in the developed countries. This cannot be a ground for the PCI to stop the establishment of an institution.
20.11. If there is no demand for a particular professional course, the student may not choose to take up such a course. The dynamics of demand and supply is best left to market forces and not decided by the W.P. No. 52314 OF 2019 125 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 state let alone a creation under the statute like the PCI.
20.12. Regulatory authorities like the PCI are to play the role of an enabler and not that of a prohibitor. The PCI and other similarly situate bodies are to not involve in the system of licence-raj but to enable the establishment of educational institutions so as to provide education to the citizens or persons/residents in our country. Education in all fields is required to be encouraged and permitted.
20.13. At the most, PCI and bodies similarly situate would encourage the establishment of institutions in areas where there are no such institutions but cannot prevent the establishment of an institution merely on the ground that there are too many institutions established.
W.P. No. 52314 OF 2019 126 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 20.14. Looking at from any angle, legally, factually, commercially, the PCI could not have issued a moratorium on the establishment of new colleges.
20.15. I answer Point No. 7 by holding that the communication dated 17.07.2019 and 9.9.2019 are not proper and are invalid.
21. I summarize my findings as under:
21.1. The PCI cannot by invoking its power to regulate, prohibit the opening of the new Pharmacy colleges, regulation in the context of PCI can not extend to prohibition unless the power can be specifically read into the Pharmacy Act, the Pharmacy Act giving no such indication or scope, PCI would only have power to regulate and not prohibit the opening of new Pharmacy Colleges.
W.P. No. 52314 OF 2019 127 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 21.2. PCI by declaring moratorium has virtually put an end to its own functioning, thus in effect suspending the statute itself, PCI cannot by exercising the power under the statute suspend the application of the statute itself.
21.3. There is no power under the Pharmacy Act for the PCI to prohibit the establishment of colleges of its own accord. A policy decision as stated once taken by the State a creature of the statute cannot take or make any policy decisions, as such, PCI cannot form a broader policy on the basis of the data available with it. At the most, the PCI can place it before the concerned government for consideration and in such a situation; the PCI can also recommend certain actions to be taken by the concerned government. Apart therefrom the PCI cannot now contend W.P. No. 52314 OF 2019 128 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 that it has formulated a policy which would be applicable to all States and Union territories.
21.4. The PCI being a creature of the statute and being a statutory body is required to act in terms of the statute, within the four corners of the statute and not travel beyond it. 21.5. Even if it were to be held that the PCI had the power to issue a moratorium, the said power has been exercised in an arbitrary manner, in violation of Article 14 of the Constitution by discriminating persons/entities like the petitioners who have taken all necessary steps for establishment of a Pharmacy college. Thus in my considered opinion, the action of the PCI even if held to be permissible, the same is violative of Article 14 of the Constitution, violates the principles of promissory estoppel W.P. No. 52314 OF 2019 129 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 and legitimate expectation, is a power exercised without taking into consideration the relevant factors and as such, is also violative of Wednesbury's principle and is, therefore, liable to be set aside. 21.6. The communication dated 17.07.2019 and 9.9.2019 are not proper and are invalid.
22. POINT NO.8: What Order?
22.1. In view of the above discussion, the writ petitions are allowed. The communication dated 17.7.2019 and 9.9.2019 are quashed. 22.2. Respondent No.3-University is directed to issue NOC dehors the resolution of PCI communicated vide letters dated 17.7.2019 and 9.9.2019. within a period of four weeks from the date of receipt of certified copy of this order.
W.P. No. 52314 OF 2019 130 c/w W.P.No.52867 OF 2019 W.P.No.52868 OF 2019 22.3. By issuance of mandamus respondent No.1 is directed to receive the application submitted by the petitioners for the establishment of their new Pharmacy colleges and process the same in accordance with applicable law, within a period of four weeks from the grant of NOC by the Respondent No.3-University.
23. Parties to bear their own costs.
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JUDGE ln