Patna High Court
L.N. Mishra Institute Of Pharmacy vs State Of Bihar And Ors. on 29 July, 1993
Equivalent citations: AIR1995PAT85, AIR 1995 PATNA 85, (1994) 1 BLJ 28 (1993) 2 PAT LJR 379, (1993) 2 PAT LJR 379
JUDGMENT G.C. Bharuka, J.
1. The petitioner, L. N. Mishra Institute of Pharmacy, Dhanbad, (hereinafter to be referred to as the 'Institute' only) claiming to be conducting Diploma Courses in Pharmacy (hereinafter to be referred to as 'D. Pharma.' only) has filed the present writ application for a writ of mandamus directing the respondent -- Controller of Examination (hereinafter the 'Controller' only), Health Department, Government of Bihar, to permit its students to sit at the ensuing D. Pharma. examination to be held by him.
2. According to the petitioner institute, the State Government under its letter dated 18-11-1988 as contained in Annexure '1' addressed to the Pharmacy Council of India (hereinafter the 'Central Council' only) has communicated that the Government has taken a decision to allow the students of the institute to appear at the D. Pharma. examination from 1986 session and, therefore, necessary action in this regard may be taken. But the Central Council did not take any step in this regard, still as stated in the writ application, the students of the institute for the sessions 1986-87, 1987-88 and 1988-89, were allowed to participate in the First Year D. Pharma. Examination held by the Controller and the results were also published. But subsequent thereto, the students are not being issued admit cards for appearing in further examinations pertaining to D. Pharma. It may be stated here that the petitioner by way of an amendment petition filed on 10-3-1993, has stated that the Central Council, after inspection of the Institution, under its letter dated 30-3-1992 (Annexure-9) communicated to the petitioner that the Council has decided not to approve the conduct of Diploma Course in Pharmacy by the petitioner-Institute since its performance was found to be in deficiency with the Education Regulations, 1981.
3. Mr. Tara Kant Jha, appearing for the petitioner has submitted that since the State Government had taken a decision to allow the students of the Institute for the session 1986 and onwards, it is absolutely arbitrary on the part of the Controller not to permit the students of the Institute to appear at the examination in question.
4. On the other hand, learned counsel appearing for the State, as also the learned Standing Counsel appearing for the Central Council, have submitted that since the Institute is not an approved Institute for conducting the courses in question as provided under Section 12 of the Pharmacy Act, 1948 (hereinafter to be referred to as 'the Act' only) and the Education Regulations framed under Section 10 thereof, therefore, the students of the Institute, in law, cannot be allowed to sit at the examination in question.
5. To resolve the controversy raised at the Bar that the Controller, in the past, allowed the students of the unapproved Institutes to undertake the D. Pharma. examination, we called for the relevant informations in this regard to be stated on affidavits. In pursuance thereof, the Controller has filed supplementary affidavits on 2-7-93, 5-7-93 and 9-7-93. The facts emerging from these affidavits reveals a disturbing state of affairs. It appears that large number of unapproved Institutions either by obtaining orders from the Stale Government, which, as discussed hereunder, has absolutely no authority in relation to conduct of courses in question or holding of examination in D. Pharma. or alternatively by obtaining judicial orders without placing on record the relevant statutory provisions, have succeeded in getting large number of persons said to be students of those institutions appeared at D. Pharma. examinations held by the Controller. The acts of the said Institutions were obviously to defeat the provisions of the Act, which has been enacted by the Parliament to achieve the minimum standard of education in approved courses of studies and examination for Pharmacist, need whereof has been recognised in most of the countries. The provisions of the Act are intended to regulate the profession and practice of Pharmacy and as measure to eradicate or minimise the health hazards of public at the hands of unskilled and/or untrained persons.
6. It transpires from the counter-affidavit filed by the Commissioner-cum-Secretary, Department of Health, that as declared by the Central Council under Section 12(2) of the Act, the D. Pharma examination held by the Controller is the only qualifying examination for the purpose of registration as Pharmacist under the Act. It has also been admitted in the counter-affidavit that in Bihar only one College, i.e., R. L. Section Yadav College of Pharmacy in Anisabad, Patna, is the approved college up to academic session 1991-92 for admission limited to 60 students in each session, The notification of the Central Council published in the Gazette of India, Part 111, Section4 dated Dec. 5, 1992, also speaks of the same fact. The second and the third counter-affidavits filed by the Controller disclose that the examination in question has been held in Bihar for the session up to 1988. It has further been stated that the State Government under some purported powers had permitted 25 institutions for starting D. Pharma. course, a list whereof has been set out in Annexure 'B'. Thereafter under his letters dated 6-12-1991 (Annexure 'C' series) the Controller has required these institutions to seek fresh permission for the conduct of examination. In the counter-affidavit filed on 5-7-1993 various orders passed by this Court at the stage of admission itself in relation to various students of unapproved/unrecognised institutes have been enclosed, wherein in various forms without addressing itself to the statutory provisions contained under the Act and the Education Regulations framed thereunder, the Court has given certain directions permitting the students to appear at certain examination to be conducted/held by the Controller.
7. The respondent-Controller, who was present in the Court in person, after referring to the statutory provisions, clearly admitted that in law he cannot permit the students of unapproved institutes to undertake D. Pharma. examination. On instructions from the respondent Commissioner-cum-Secretary, he further stated that the Government has no authority under the Act or the Regulations framed thereunder to either grant recognition to the institutions undertaking courses of studies in D. Pharma. or holding of examination in this regard. Nonethe-less keeping in view the submissions at the Bar, it is essential on our part to examine the statutory regulations. Sections 10, 11 and 12 of the Act are relevant for the present purposes which are being quoted hereunder:
10(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 Regulation may prescribe -
(a) the nature and period of study and of practical training to be undertaken before admission to an examination;
(b) the equipment and facilities to be provided for students undergoing approved courses of study;
(c) the subjects of examination and the standards therein to be attained;
(d)any other conditions of admission to examination.
(3) Copies of the draft of the Education Regulations and of all subsequent amendments thereof shall be furnished by the Central Council to all. State Governments, and the Central Council shall before submitting the Education Regulations or any amendment thereof, as the case may be, to the Central Government for approval under Sub-section (1)take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.
(4) The Education Regulations shall be published in the Official Gazette and in such other manner as the Central Council may direct.
(5) The Executive Committee shall from time to time report to the Central Council on the efficacy of the Education Regulations and may recommend to the Central Council such amendments thereof as it may think fit.
11. At any time after the constitution of the State Council under Chapter 111 and after consultation with the State Council, the State Government may, by notification in the Official Gazette, declare that the Education Regulations shall take effect in the State :
Provided that where no such declaration has been made, the Education Regulations shall take effect in the State on the expiry of three years from the date of the constitution of the State Council.
12(1). Any authority in a State which conducts a course of study for pharmacists may apply to the Central Council for approval 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 the purpose of admission to an approved examination for pharmacists.
(2) 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.
(3) Every authority in the States which conducts an approved course of study or holds as 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.
The Central Council has been constituted under Section 3 of the Act and pursuant to the provisions under Section 11, the State Council has been constituted in the State of Bihar. In 1955 rules were framed in this regard under Notification No. 3423 dated 7th February, 1955. As required under Section 10 of the Act, the Central Council has framed Education Regulations from time to time. The present regulation namely Education Regulations, 1991, has been framed with the approval of the Central Government in supersession of the Education Regulations, 1981, which has come into force with effect from its publication in the Gazette of India, Part III, Section 4, dated 11-7-92. Regulations 9, 10, 11 and 12 are relevant for the present purpose, which are being quoted hereunder :
9. Approval of the authority conducting the course of study -- The course of regular academic study prescribed under Regulation 7 shall be conducted in an institution, approved by the Pharmacy Council of India under Sub-section (1) of Section 12 of the Pharmacy Act, 1948:
Provided that the Pharmacy Council of India shall not approve any institution under this regulation unless it provides adequate arrangements for teaching in regard to building, accommodation, equipment and teaching staff as specified in Appendix B to the regulations.
10. Examinations -- There shall be an examination for Diploma in Pharmacy (Part-D to examine students of the first year course and an examination for Diploma in Pharmacy (Part-II) to examine students of the second year course. Each examination may be held twice every year. The first examination in a year shall be the annual examination and the second examination shall be the supplementary examination of the Diploma in Pharmacy (Part-I) or Diploma in Pharmacy (Part-II), as the case may be, the examinations shall be of written and practical (including oral) nature carrying maximum marks for each part of a subject, as indicated in Table III and IV.
11. Eligibility for appearing at the Diploma in Pharmacy Part-I Examination:
Only such candidates who produce certificate from the head of the academic institution in which he/she has undergone the Diploma in Pharmacy Part I course, in proof of his/her having regularly and satisfactorily undergone the course of study by attending not less than 75% of the classes held both in theory and in practical separately in each subject shall be eligible for appearing at the Diploma in Pharmacy (Part-I) examination.
12. Eligibility for appearing at the Diploma in Pharmacy Part II examination;
Only such candidates who produce certificate from the Head of the academic institution in which he/she has 66dw4ee45 the Diploma in Pharmacy Part-II course, in proof of his/her having regularly and satisfactorily undergone the Diploma in Pharmacy Part-II course by attending not less than 75% of the classes held both in theory and practicals separately in each subject, shall be eligible for appearing at the Diploma in Pharmacy (Part II) examination.
In view of the provisions contained under Regulation 9, it is clear that the course of a regular academic study prescribed under the Regulation 7 shall be conducted only by an institution approved by the Central Council. Regulations 11 and 12 provide that only such candidates, who have undergone the Diploma in Pharmacy Parts I and II courses subject to other conditions prescribed thereunder, shall be eligible for appearing at the D. Pharma examinations Part I and Part II. Therefore, there is no escape from holding that Diploma in Pharmacy, holding whereof is a statutory requirement for registration as a pharmacist under the Act, can be acquired only after pursuing a course of study in an institution approved by the Central Council and thereafter participating in the examination held by the authority like the respondent-Controller of Examination approved for this purpose. The Controller of Examination has authority to hold examination in question as per the provisions of the Act and the Regulation made thereunder and the State Government for the said purpose has no power either to permit any institution to conduct the courses of studies of Diploma in Pharmacy or to allow the students of such unapproved institutions to appear at the examination held by the respondent-Controller.
8. I should repeat here that the Apex Court has said, "we cannot imagine anything more destructive of the rule of law than a direction by the Court to disobey the laws". (See A. P. Christians Medical Educational Society v. Govt. of A.P., AIR 1986 SC 1490). I may usefully quote the observations of the Apex Court in the case of State of Maharashtra v. Vikas Sahebrao reported in (1992) 4 SCC 435 at p. 439 : (AIR 1992 SC 1926 at pp. 1929-30):
"Slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of the education. The directions to the appellants to disobey the law is subversive of the rule of law, a breeding ground of corruption and feeding source of indiscipline. The High Court, therefore, committed manifest error in law, in exercising its prerogative power conferred under Article 226 of the Constitution, directing the appellants to permit the students to appear for the examination etc."
9. Accordingly, we hereby command upon the respondent-Controller of Examination not to permit the students of any institution, which is not approved under Regulation 9 of the Regulations to appear at any examination of D. Pharma held by him in the State. Anyhow we may clarify that if any person has obtained any order from this Court earlier by not bringing to the notice of the Court the relevant Act and the regulations, it will be open for the Controller of Examination to seek a review of the said order by filing an appropriate petition for the said purpose: to avoid any discrimination or inconsistency.
10. As noticed above, it seems to us that quite a large number of unapproved/ill-equipped/ fake institutions are claiming to be authorised to impart D. Pharma courses to cheat and exploit "the naive and foolish, eager and ready-to-be-duped aspirants for admission to professional collegiate courses. (As per O. Chinnappa Reddy, J. in A. P. Christians Medical Educational Society case (AIR 1986 SC 1490) (supra)". In its subsequent decision, looking at the said trend, which seems to have become the order of the day, the Apex Court in the case of Managing Committee of Bhagwan Budh Primary Teachers Training College v. State of Bihar, reported in 1990 Supp SCC 722, directed "for issuance of advertisements through news-papers and other possible channels, if any, to ensure that students do not get mislead by such unrecognised institutions wasting their precious time and money in undergoing training which will be of no avail to them." The Supreme Court also suggested that "the State should consider for taking such steps, criminal or civil as are open to them, in law, to stop such institutions and they who run them for misleading students and deceiving them."
11. Keeping in view the observations and guidelines laid down by the Supreme Court, we hereby direct that:
(i) The Commissioner-cum-Secretary, Department of Health, (a) should immediately publish advertisements in at least three news papers of the State with wide circulation warning the students not to take admission in unapproved institutions claiming impartation of D. Pharma courses, and (b) take immediate coercive measures including institution of criminal prosecutions against the persons found to be indulged in the aforesaid illegal activities.
(ii) The Bihar Pharmacy Council should not register any person oh its roll if he is found not to have pursued his courses of studies in D. Pharma in an approved institution;
(iii)The Drug Controller or any other licensing authority under the provisions of the Drugs and Cosmetics Act will not grant any licence/ permit/ privilege contemplated under any statutory provision which needs holding of D. Pharma certificate, if the concerned person is not found to have pursued his courses of studies in an institution approved by the Pharmacy Council of India; and
(iv) The Health Commissioner will ensure that these directions are duly communicated to the respective authorities and he should file an affidavit within two weeks with regard to the compliance of the directions as above.
12. Before parting, we also feel it necessary to mention here that since according to the Gazette Notification of the Pharmacy Council of India, referred to above, only one institution has been approved in Bihar up to academic session 1991-92 limiting admission to 60 students only, keeping in view the demand of such courses, it is essential to eliminate discretion in the management of such institutions in the matter of admission. To achieve this objective, the Supreme Court in the case of Unnikrishnan v. State of A.P., reported in (1993) 1 SCC 645 (at para 205, at p. 755) : (AIR 1993 SC 2178 at p. 2246, para 169) has made it mandatory for every authority granting recognition, affiliation to impose upon the institutions seeking such recognition/affiliation, a regulatory scheme governing admission in such institutions. The scheme has been envisaged in para 205 onwards of the said judgment and has been made applicable to the institutions imparting Pharmacy courses as well.
13. Accordingly, it is directed that henceforth while granting approval/recognition to any institution intending to impart D. Pharma course, the Central Council must make the said scheme a condition for grant of such approval or recognition.
14. Subject to the observations, as above, the writ application is dismissed. No order as to costs.
Gurusharan Sharma, J.
15. I agree.