• Ms. Kanika Balhara

Pharmacy Council of India v. Dr. SK Toshniwal Educational Trusts Vidarbha Institute of Pharmacy

CASE

Pharmacy Council of India v. Dr. SK Toshniwal Educational Trusts Vidarbha Institute of Pharmacy


CITATION

2020 SCC OnLine SC 296


CORAM

Supreme Court of India

Full Bench - Hon’ble Justice Arun Mishra , Hon’ble Justice Vineet Saran

and Hon’ble Justice M.R. Shah


ALSO KNOWN AS

X--------X


POINT OF CONSIDERATION

Applicability of the Pharmacy Act, 1948 or the AICTE Act, 1987 in relation to subject of pharmacy including the approval of courses of study, minimum standards of education required for qualification as a pharmacist etc.


FACTS

  1. As common questions of law and facts arose in several group of cases, all these cases were decided together by this common judgment and order.

  2. In all these petitions, respective respondent-Colleges approached the respective High Courts with the grievance regarding actions of approval of the second shift by the Pharmacy Council of India (hereinafter referred to as the PCI) and restriction on increasing the intake capacity of students for various pharmacy courses.

  3. Since the respective respondent Colleges increased the intake of students, based upon the requisite permission/approval obtained from the All India Council of Technical Education (hereinafter referred to as the AICTE), the respective High Courts have allowed the colleges to increase/continue with the increase in intake. The respective High Courts have concluded that AICTE is the supreme authority between the two bodies, namely, AICTE and PCI and the decision of AICTE will prevail over the decision of PCI.

  4. By the interim orders, the High Court allowed the Institutions to continue with the increased number of intake as approved/permitted by AICTE.

  5. However, in some of the cases, such interim orders have been made absolute.

  6. Therefore, the issue involved in the present batch of cases is regarding the applicability of the Pharmacy Act, 1948 (hereinafter referred to as the Pharmacy Act) or the All India Council of Technical Education Act, 1987 (hereinafter referred to as the AICTE Act) in relation to the subject of Pharmacy, including approval of courses of study, minimum standards of education required for qualification as a Pharmacist, registration as a Pharmacist, regulation of future professional conduct etc.


ISSUES RAISED & RATIO

  • Whether the Pharmacy Act, 1948 or the AICTE Act, 1987 is applicable in relation to subject of pharmacy including the approval of courses of study, minimum standards of education required for qualification as a pharmacist, registration as a pharmacist, regulation of future professional conduct etc?

As per the Preamble of the Pharmacy Act, 1948, the Pharmacy Act has been enacted to make better provision for the regulation of the profession and practice of Pharmacy and for that purpose to constitute Pharmacy Councils. The Pharmacy Act, it covers all areas inclusive of approval of courses, laying down course content, eligibility conditions for students as well as teachers, evaluation of standards of examination, grant of registration, entry of higher qualification, taking action for any infamous conduct etc. The relevant provisions in the Pharmacy Act are Sections 10, 12, 13, 16, 29, 32, 35, 36 and 42. (Refer to the Pharmacy Act, 1948)


Thus, considering the various provisions of the Pharmacy Act and the regulations made therein, it can be said that the Pharmacy Act is a complete Code in itself in the subject of pharmacy. The PCI has been constituted as a body empowered to regulate the education and profession of pharmacy in India. It also contains a penal provision. Thus, the legislative intent in enacting the Pharmacy Act seems to be to ensure that there is seamless regulation of the profession.


On the other hand, the AICTE Act can be said to be a general law applicable to the technical institutions and technical education. Thus, it can be said that the AICTE Act can be said to be a general law with respect to technical education. It is true that in the definition, as per Section 2(g) of the AICTE Act, “technical education” also means “pharmacy”. It is submitted that the amendment in Section 2(g) of the AICTE Act was proposed, but thereafter there is no further progress in the wake of formation of newly proposed Higher Education Council of India and finalization of NEP, which as such has nothing to do with the Pharmacy Act. Therefore, the word ‘pharmacy’ is to be deleted from the definition of ‘technical education’ contained in Section 2(g) of the AICTE Act.


The Pharmacy Act is a Special Act in the field of pharmacy and it is a complete code in itself in the field of pharmacy, the Pharmacy Act shall prevail over the AICTE Act which, as observed hereinabove, is a general statute dealing with technical education/institutions. Therefore, the submission on behalf of AICTE and/or concerned educational institutions that the AICTE Act is a subsequent law and in the definition of “technical education” it includes the “pharmacy” and therefore it can be said to be an “implied repeal”, cannot be accepted.

  • Whether AICTE or PCI would primarily be responsible for regulation of pharmaceutical regulation in India?

PCI consists of experts in the field of pharmacy and related subjects connected with the education of pharmacy. Therefore, under the statute, specialized persons in the field of pharmaceutical, pharmacy etc. shall be the members of the PCI.


On the other hand, so far as AICTE is concerned, only one member would be from the field of pharmacy and that too representative of PCI. Under the circumstances, the PCI is the body of experts connected with the subject of pharmacy and related subjects and therefore it will be in the larger interest and more particularly in the interest of education of pharmacy that PCI shall alone have the Jurisdiction in the field of pharmacy, rather than AICTE.


Both, the PCI and AICTE are the creature of the statute. Therefore, it is not at all healthy that the two regulators, both being Central authorities, can be permitted to fight for supremacy. The fight of supremacy between both the regulators is unhealthy for the education sector as well as the institutions to permit two regulators to function in the same field. Therefore also and more particularly when the PCI is consisting of the experts in the field of pharmacy and other related subjects, it is in the larger interest in the field of pharmacy that the PCI must be given the power to regulate in the field of pharmacy.


IMPORTANT CASES REFERRED

  1. AICTE v. Shri Prince Shivaji Maratha Boarding House’s College of Architecture (2019) SCC Online SC 1445; (2019) 16 SCALE 421

  2. Bharathidasan University v. All-India Council for Technical Education (2001) 8 SCC 676.

  3. UPSEB v. Hari Shanker Jain (1978) 4 SCC 16

  4. LIC of India v. D.J. Bahadur (1981) 1 SCC 315

  5. Yakub Abdul Razak Memon v. State of Maharashtra (2013) 13 SCC 1

  6. Byram Prestonji Gariwala v. Union Bank of India (1992) 1 SCC 31

  7. Nasiruddin v. Sita Ram Agarwal (2003) 2 SCC 577

  8. Ajeet Singh Singhvi v. State of Rajasthan 1991 Suppl. (1) SCC 343

  9. Association of Management of Private Colleges v. All Indian Council for Technical Education (2013) 8 SCC 385

  10. R.S. Raghunath v. State of Karnataka (1992) 1 SCC 335


The author is a law graduate from the University School of Law and Legal Studies, GGS IP University, New Delhi.

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