Madhya Pradesh High Court
Jayshree Awasya vs The State Of Madhya Pradesh on 24 January, 2019
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Writ Petition No.2693/2014
(Vishal Kumar Gupta & Anr. Vs. State of M. P. & Ors.)
Writ Petition No.6841/2014
(Jayshree Awasya & Ors. Vs. State of M. P. & Ors.)
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Indore, dated 24/01/2019
Mr. Dharmendra Chelawat and Ms. Sadhna Pathak, learned
counsel for the petitioners.
Ms. Sudha Shrivastava, learned counsel for the respondent -
Vikrant Institute of Pharmacy.
Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of Writ Petition No.2693/2014 are narrated hereunder.
02- The petitioners before this court have filed present petition being aggrieved by non-registration by Pharmacy Council of India.
The petitioners' contention is that they have appeared in the qualifying examination conducted by Madhya Pradesh Professional Examination Board for examination of B. Pharma / D. Pharma Course, 2008 and as the petitioners were successful in the examination, they were granted admission in respondent No.5 -
Vikrant Institute of Pharmacy.
03- The petitioners' contention is that the respondent No.5 -
Vikrant Institute of Pharmacy is recognized by All India Council for Technical Education, New Delhi (AICTE) and Directorate of Technical Education and is affiliated to Rajiv Gandhi Proudyogiki HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.2693/2014 (Vishal Kumar Gupta & Anr. Vs. State of M. P. & Ors.) Writ Petition No.6841/2014 (Jayshree Awasya & Ors. Vs. State of M. P. & Ors.) -2- Vishwavidyalaya, Bhopal. Thus, the Institution in question is a recognized Institution and therefore, Pharmacy Council of India is under an obligation to issue a registration certificate, keeping in view the the Pharmacy Act, 1948.
04- The petitioners' grievance is that in spite of the fact that they have obtained necessary qualification from a recognized Institution, only because the Institution is not registered with Pharmacy Council of India, they cannot be denied recognition by the respondents and as the petitioners are not being registered by Pharmacy Council of India, which is required under Section 12 of the Pharmacy Act, 1948, they cannot practice as Pharmacist.
05- A reply has been filed by the respondent No.3 - Pharmacy Council of India in the present case as well as in the connected matter and the Pharmacy Council of India has stated on affidavit that Institution in question is not registered with Pharmacy Council of India and therefore, the question of registering the students and granting them registration certificate does not arise.
06- Other respondents have also filed reply in the matter and undisputedly the College, in which the petitioners are studying, does have recognition from All India Council for Technical Education and Rajiv Gandhi Proudyogiki Vishwavidyalaya, Bhopal and its an HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.2693/2014 (Vishal Kumar Gupta & Anr. Vs. State of M. P. & Ors.) Writ Petition No.6841/2014 (Jayshree Awasya & Ors. Vs. State of M. P. & Ors.) -3- affiliated Institution fulfilling all norms on the subject meant for running a Pharmacy College. The only impediment, which is coming in way of the petitioner, is non-registration of Institution with Pharmacy Council of India.
07- The issue is no longer res integra. The Punjab and Haryana High Court in the case of Gandhi College of Pharmacy, G. T. Road, Karnal Vs. All India Council of Technical Education, New Delhi (Civil Writ Petn. 2055 of 1994, decided on May 12, 1995), while dealing with a similar issue in paragraphs No.5 to 11 has held as under:-
"5. From the rival stands taken by the parties in this case the question that emerges for consideration is as to which of the two authorities namely, Pharmacy Council of India or AICTE has, after the coming into force of the 1987 Act the power to approve the diploma course in pharmacy conducted by the college.
6. Before I deal with this question, it is necessary to examine the provisions of the two Acts under which the two authorities have been constituted.
7. The 1948 Act which was a law in force in the territory of India immediately before the commencement of the Constitution was enacted with a view to permit only such persons to practise the profession of pharmacy who attained the minimum standard of professional education. Accordingly, establishment of a Central Council of Pharmacy was proposed which would prescribe the minimum standard of education and approve the courses of study and examinations for pharmacists. The Provincial Pharmacy Councils were also proposed which would be responsible for the maintenance of provincial registers of qualified pharmacists. It was further proposed to empower the Provincial Governments to prohibit the dispensing of medicines on the prescription of a medical practitioner otherwise than by or under the direct and personal supervision of a registered pharmacist. Section 3 of the 1948 Act provides for the constitution of a Central Council by the Central Government by HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.2693/2014 (Vishal Kumar Gupta & Anr. Vs. State of M. P. & Ors.) Writ Petition No.6841/2014 (Jayshree Awasya & Ors. Vs. State of M. P. & Ors.) -4- the name of Pharmacy Council of India having a perpetual succession and a common seal. Sections 5, 6 and 7 provide for election of President and Vice President of Central Council and their term of office and the manner in which casual vacances are to be filled. The Central Council is to have an Executive Committee and other committees as required by Sections 9 and 9-A. Section 10 provides that the Central Council may subject to the approval, of the Central Government make regulations to be called the Education Regulations prescribing the minimum standard of education required for qualification as a pharmacist. These regulations would prescribe:--
(a) the nature and period of study and of practical training to be undertaken before admission to the examination;
(b) the equipments and facilities to be provided for students undergoing the approved course of studies;
(c) the subjects of examination and the standard
therein to be attained; and
(d) any other conditions of admission to
examinations.
Section 12 of the 1948 Act then makes a provision for approval of the course of study for pharmacists by the Pharmacy Council of India. It also provides for approval by the Central Council of the examination in pharmacy conducted by any authority in the State. Section 13 then provides for the grounds on which the approval granted by the Pharmacy Council of India can be withdrawn. After providing for the minimum standard of professional education required by a person to practise the profession of pharmacy, Chapter-III provides for the State Pharmacy Councils, their Constitution, election of their Presidents and Vice-Presidents and terms of their office.
Chapter-IV provides for registration of pharmacists and the manner in which they have to apply for registration. It also provides for the removal of their names from the register and Chapter-V deals with miscellaneous provisions and provides for penalty for falsely claiming to be registered as a pharmacist. Section 42 provides that no person other than a registered pharmacist shall compound, prepare, mix or dispense any medicine. Contravention of this provision has been made punishable with imprisonment or fine. In nut-shell, under the 1948 Act the Pharmacy Council of India through its Education Regulations prescribes the minimum standard of education required for qualification as a pharmacist and approves the courses of studies and examinations. It also deals with some other ancillary matters referred to above. In other words, it HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.2693/2014 (Vishal Kumar Gupta & Anr. Vs. State of M. P. & Ors.) Writ Petition No.6841/2014 (Jayshree Awasya & Ors. Vs. State of M. P. & Ors.) -5- contains provisions which relate to co-ordination and determination of standards in colleges of pharmacy.
8. All India Council for Technical Education was set up in 1945 by the Government as a national expert body to advise the Central and the State Governments for ensuring, the co- ordinated development of technical education in accordance with approved standards. It appears that during the first three decades this Council functioned quite effectively and there was a phenomenal development of technical education during that period. However, in recent years, a large number of private engineering colleges and polytechnics providing technical education have come up in complete disregard to the guidelines laid down by AICTE. Most of these institutions had serious deficiencies in terms of even rudimentary infra-structures necessary for imparting proper education and training. Barring some exceptions, there has been scant regard for maintenance of educational standards. Taking note of growing erosion of standards, Parliament enacted the 1987 Act to confer statutory powers on AICTE to ensure:--
(i) proper planning and co-ordinated development of the technical education system throughout the country;
(ii) promotion of qualitative improvement of
technical education in relation to planned
quantitative growth; and
(iii) regulation of the system and proper
maintenance of norms and standards.
Technical education' as defined in clause (g) of S-2 of the 1987 Act means programmes of education, research and training in several areas of learning including pharmacy. By S. 3 AICTE had been created and made a body corporate. It is to consist of members who must include amongst others, a representative of the Pharmacy Council of India. Chapter-Ill deals with the powers and the functions of AICTE. Under S. 10 of the 1987 Act, it is the duty of AICTE to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical education and maintenance of standards. For purposes of performing its functions, AICTE is required to co-ordinate development of technical education in the country at all levels. It may allocate and disburse out of its funds such grant on such terms and conditions as it may think fit to technical institutions and universities imparting technical education in co-ordination with the University Grants Commission. It can evolve suitable performance appraisal systems for technical institutions and the universities imparting technical education, incorporating norms and mechanism for enforcing accountability. One of its most HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.2693/2014 (Vishal Kumar Gupta & Anr. Vs. State of M. P. & Ors.) Writ Petition No.6841/2014 (Jayshree Awasya & Ors. Vs. State of M. P. & Ors.) -6- important functions is to lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality' instructions, assessment and examinations. It can fix norms and guidelines for charging tuition and other fees and grant approval for starting new technical institutions and for introduction of new courses or programmes. It can take all necessary steps to prevent commercialisation of technical education and provide guidelines for admission of students to technical institutions and universities imparting technical education. It can inspect or cause to inspect any technical institution. Apart from other things, it may set up a National Board of Accreditation to periodically conduct evaluation of technical education or programmes on the basis of guidelines, norms and standards specified by it and to make recommendations to it or to AICTE or University Grants Commission or to other bodies regarding recognition or derecognition of the institution or the programme. By virtue of S. 11, it may cause an inspection of any department or departments of such technical institution or university to be made in such manner as may be prescribed. The other provisions of this Act deal with matters which are ancillary/incidental. As is clear from the definition of the term 'technical education' any programme of education in pharmacy is also technical education within the meaning of the 1987 Act. The 1987 Act is referable to Entry 66 of List-I of the 7th Schedule to the Constitution which reads as under :--
"Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
9. Now if we compare the provisions of the 1948 Act with those of the 1987 Act it is clearly borne out that both these enactments cover the field of providing the minimum standards of education in pharmacy. The Pharmacy Council of India under the 1948 Act and AICTE under the 1987 Act can both lay down norms and standards for courses of study in pharmacy. Thus, it will be seen that the 1948 Act and the 1987 Act are two parallel enactments relating to co-ordination and determination of standards in colleges and institutions offering courses in pharmacy.
10. Now I come to the question as to which of the authorities under the two Acts would regulate and control the college in the matter of laying down norms and standards for courses in pharmacy. The argument of the learned counsel for the petitioner is that the diploma course of the college having been approved by the Pharmacy Council of India under the 1948 Act, it is this Council alone which would govern the colleges and that no HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.2693/2014 (Vishal Kumar Gupta & Anr. Vs. State of M. P. & Ors.) Writ Petition No.6841/2014 (Jayshree Awasya & Ors. Vs. State of M. P. & Ors.) -7- approval of AICTE is required nor can the latter reduce the intake of students and nor has it the power to impose any of the conditions that have been imposed by it. Mr. J. S. Rathi appearing for the Pharmacy Council of India supports the petitioner in this regard and contends that it is the Pharmacy Council which has the complete power and control in the master of laying down standards for courses in Pharmacy as envisaged in the 1948 Act. Mr. S. K. Pipat, Senior Advocate appearing for the first respondent, however, contends that the 1948 Act was an existing law and after the enactment of the 1987 Act, it is the latter Act which will govern since it also covers the field covered by the 1948 Act. He relied on the provisions of Art. 372 of the Constitution and submitted that the provisions of the 1948 Act will be deemed to have been altered or amended by the 1987 Act.
11. I have given my thoughtful consideration to the rival contentions of the parties and find force in the argument of Mr. Pipat. Article 372 of the Constitution provides that notwithstanding the repeal by the Constitution of the enactments referred to in Art. 395, all the laws that were in force in the territory of India immediately before the commencement of the Constitution shall continue to remain in force until altered or repealed or amended by a competent Legislature or other competent authority. The 1948 Act is undoubtedly an existing law which was in force in the territory of India prior to the commencement of the Constitution. This law was thus to continue to operate till it was altered or repealed or amended by a competent Legislature. Parliament in exercise of its powers under Entry-66 of List-I (Union List) has enacted the 1987 Act. As already noticed above, this Act covers same field which was earlier covered by the 1948 Act, namely, to lay down norms and standards for studies in the field of pharmacy. Therefore, in terms of Art. 372 of the Constitution, the 1987 Act to the extent it covers the same field as covered by the existing law, i.e., the 1948 Act, will prevail and the provisions of the 1948 Act to that extent stand repealed/ altered. Alteration, repeal or amendment contemplated by Art. 372 of the Constitution may be express, i.e., the existing law may be expressly altered, repealed or amended by a competent Legislature. An existing law may also be modified by necessary implication and this can be done even by a separate enactment as in the present case. When two Acts are inconsistent or repugnant to each other, the existing law will be deemed to have been altered, repealed or amended by the later law enacted by the competent Legislature. Even when there is no repugnancy or inconsistency between the two enactments, the later law enacted by the competent Legislature will prevail provided that law covers the same field as is covered by the HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.2693/2014 (Vishal Kumar Gupta & Anr. Vs. State of M. P. & Ors.) Writ Petition No.6841/2014 (Jayshree Awasya & Ors. Vs. State of M. P. & Ors.) -8- existing law since it is last expression of the will of the Legislature that must prevail."
08- The Pharmacy Act, 1948 is in existence since 1948 and All India Council for Technical Education Act, 1987 came into existence in the year 1987 and the Punjab and Haryana High Court in the aforesaid case has held that when two Acts are in existence and are repugnant to each other, the existing law will be deemed to have been altered, repealed or amended by the later law enacted by the competent Legislature. Even when there is no repugnancy or inconsistency between the two enactments, the later law enacted by the competent Legislature will prevail provided that law covers the same field as is covered by the existing law since it is last expression of the will of the Legislature that must prevail.
09- The Madras High Court in the case of A. Mahesh, S. Ananda Natarajan Vs. K. K. College of Pharmacy reported in 2003 (4) CTC 657 has again dealt with a similar controversy and has held as under:-
"Therefore, in terms of Article 372 of the Constitution of India, the AICTE Act to the extent it covers the same field as covered by the Pharmacy Act will prevail and the provisions of the Pharmacy Act to that extent would yield to the AICTE Act. When both the enactments are traceable to the power of the same legislature, on the same subject viz., the Parliament, the later enactment viz., the AICTE Act which is a special enactment insofar as laying down the norms and standards for courses, etc., shall override the provisions of Pharmacy Act and the Education Regulation, 1991 insofar as it prescribes norms and standards for admissions and examinations to Pharmacy course. HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.2693/2014 (Vishal Kumar Gupta & Anr. Vs. State of M. P. & Ors.) Writ Petition No.6841/2014 (Jayshree Awasya & Ors. Vs. State of M. P. & Ors.) -9- Hence, provisions of Section 10 to 15 of the Pharmacy Act shall be deemed to be inoperative insofar they relate to admission of students, syllabi, course of study and the examination and for that matter, the approval for pharmacy course. Consequently, the provisions of AICTE Act alone shall regulate and control the colleges in the matter of laying down norms and standards for courses in pharmacy. When once the norms and standards prescribed by the AICTE is adopted by the college and the students have undergone the course under the prescribed syllabi, and the students were also allowed to sit for examination by the University on the strength of the application granted to the college and indisputed the students also became successful in the examination, neither the Central Pharmacy Council nor the State Pharmacy Council could insist for approval of the course under the provisions of the Pharmacy Act for entering the names of those students in the register of pharmacist maintained by State and Central Councils. Facts of the cases here reveal that the college in question obtained the approval from the State Government to start the college to impart Pharmacy courses and the University also granted affiliation to the college on the basis of the approval granted by the AICTE and more particularly, the students who have also undergone the prescribed syllabi which has been adopted by the AICTE for the students to undergo the course and on further fact that the University has also conferred the Degrees on the petitioners for having successfully completed the course, the petitioners are entitled to get themselves registered before the State Council in the register maintained by the State and consequently in the register maintained by the Central Council. Hence, I have no hesitation to hold that the petitioners are entitled to succeed in the writ petitions. Consequently, the Registrar, Tamil Nadu Pharmacy Council, Chennai is directed to entertain the applications from the petitioners in both the writ petitions for entering their names in the register maintained by the State Council and take further action to forward the same to the Central Council to enable the Central Council to again enter their names in the register maintained by the Central Council, so as to enable the petitioners to practice as Pharmacists. With the above direction, both the writ petitions are allowed. No costs. Consequently, the connected W.P.M.P. is closed.
In the aforesaid case, it has been held that once the norms and standard prescribed by the AICTE is adopted by the College and the students have undergone the Course and have also been HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.2693/2014 (Vishal Kumar Gupta & Anr. Vs. State of M. P. & Ors.) Writ Petition No.6841/2014 (Jayshree Awasya & Ors. Vs. State of M. P. & Ors.)
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declared successful neither the Central Pharmacy Council nor the State Pharmacy Council can deny their registration.
10- A similar view has been taken by the Andhra Pradesh High Court in the case of B. Laxmi and Others Vs. Government of Andhra Pradesh and Others reported in 2003 (5) ALT 715 and in paragraphs No.8 to 10 has held as under:-
"8. Thus, a reading of the Pharmacy Act, 1948, makes it clear that the Central Council is empowered to make regulations prescribing minimum standard of education required for qualification as a Pharmacist, the subjects of examination, standards thereon to be attained, the nature and period of study and of practical training to be undertaken before admission to an examination, equipment and facilities to be provided for students undergoing approved courses of study. It is not the case of the 4th respondent that the conduct of B.Pharmacy course by the A.P. State authorities was not approved course of study imparted by the 6th respondent-college of B.Pharmacy, Unless it was approved course of study, the question of granting recognition by AICTE and giving permission by the State Government to conduct the course of B.Pharmacy by the 6th respondent does not arise. Respondents 1 to 3 are the State authorities and have permitted the 6th respondent to impart education of B.Pharmacy and if the authorities i.e., respondents 1, 2 and 3 have permitted to conduct the course of B.Pharmacy study for the Pharmacists contrary to the approved course, it is for the Pharmacy Council of India to withdraw the approval from conducting the said course by the State authorities but for no fault of the petitioners, the degrees granted by the 3rd respondent-University cannot be nullified. As a matter of fact, the course of study conducted by the 6th respondent institution for the students of II, III and IV year has been recognized whose admissions have been transferred from the 6th respondent-college to the Bapatla College of B.Pharmacy, Bapatla. If that be so, the petitioners, who are the students of first batch of the 6th respondent college and who have passed the course of I, II, III and IV year of B.Pharmacy and they have passed in distinction in the examinations conducted by the Jawaharlal Nehru Technological University and, therefore, there is no justification on the part of the 4th respondent in recognizing II, III and IV year batches and in not recognising the first batch students. The All India Council for HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.2693/2014 (Vishal Kumar Gupta & Anr. Vs. State of M. P. & Ors.) Writ Petition No.6841/2014 (Jayshree Awasya & Ors. Vs. State of M. P. & Ors.)
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Technical Education Act, 1987 which is enacted subsequent to the Pharmacy Act, 1948. Both the Acts are the Central Acts and the legislative competency of the same is referable to Entry 66 of List-I of VII Schedule of the Constitution of India. The AICTE Act also covers the same field, which was earlier covered by Pharmacy Act, 1948. The AICTE is vested with the statutory authority for planning, formulation and maintenance of norms and standards and integrated development of technical and management education. Under Section 10 of the AICTE Act, 1987, it is the duty of the AICTE to take all such steps as it may think fit in ensuring the co-ordination and integrated development and technical and management education and the maintenance of standards and for the purpose of performing its function under the Act, the Council may lay down the norms and standards for course physical and infrastructure facilities and staff pattern and staff qualifications, quality, instructions, assessment and examination and accord the approval for starting new technical educational institutions and for introduction of new course or programme in consultation with the agencies concerned. The AICTE granted approval for starting B.Pharmacy College by the 6th respondent and the said course conducted by the 6th respondent was approved by the AICTE as well as the State Government and the 3rd respondent-University. Therefore, it cannot be said that B.Pharmacy course conducted by the 6th respondent-college after getting approval by the concerned authorities is invalid.
9. Admittedly, the University withdrawn the affiliation granted to the 6th respondent-institution from the academic year 2001 onwards only and transferred the students of the 6th respondent-college to Bapatla College of B.Pharmacy, Bapatla. It is not the case of the 4th respondent that AICTE has no power or authority to permit for conducting the degree course in B.Pharmacy. Under the AICTE Act, the AICTE is empowered to grant affiliation and after satisfying the norms and the reports of the concerned authority, the AICTE accorded provisional affiliation subject to certain conditions and for not fulfilling the said conditions subsequently by the 6th respondent-college of B.Pharmacy cannot be a ground to refuse to recognise the degrees obtained by the petitioners by the 4th respondent. The action of the 4th respondent while permitting the other batch of students to continue their course of study while refusing to recognize the degrees obtained by the petitioners is illegal, discriminatory and without any reason.
10. For the aforesaid reasons, 4 th respondent is directed to confer approval of the degrees obtained by the petitioners in HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.2693/2014 (Vishal Kumar Gupta & Anr. Vs. State of M. P. & Ors.) Writ Petition No.6841/2014 (Jayshree Awasya & Ors. Vs. State of M. P. & Ors.)
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pursuance of the final examinations conducted by the 3rd respondent-University."
In light of the aforesaid judgment also, the Pharmacy Council of India cannot deny the registration of the petitioners.
11- The Bombay High Court in the case of Shri Bhairavnath Nisarga Mandal's College of Pharmacy Vs. The State of Maharashtra and Others (Writ Petition No.10027 of 2016, decided on 04th July, 2017) was dealing with a similar controversy and in spite of there being no registration by Pharmacy Council of India, Pharmacy Council of India / Maharashtra Pharmacy Council has been directed to grant registration to the students.
12- In the considered opinion of this Court, as the petitioners have cleared the B. Pharmacy Examination from a recognized University, the respondent No.3 Pharmacy Council of India is directed to issue a certificate of registration within a period of 90 days from the date of receipt of certified copy of this order.
13- With the aforesaid, both the writ petitions stand allowed.
Certified copy as per rules.
(S. C. SHARMA) (VIRENDER SINGH)
JUDGE JUDGE
Tej
Digitally signed by
Tej Prakash Vyas
Date: 2019.01.30
11:05:34 +05'30'