Capacity of the students and the decisions of The Pharmacy Council of India shall only be followed b

The Pharmacy Council of India Versus Dr. S.K. Toshniwal Educational Trusts Vidarbha Institute of Pharmacy and Ors. Etc TRANSFERRED CASE (CIVIL) NO.OF 2020 [TRANSFER PETITIONS (CIVIL) NOS. 87-101 OF 2014]

“As per Section 12 of the Pharmacy Act, any “authority” in a State that is empowered to conduct a course of study in pharmacy may apply to the Central Council for approval of the course in accordance with the Education Regulations. Likewise, any authority which conducts an examination of a State for pharmacy may apply to the PCI for approval of such examination.”

The bench encompassing Justice Arun Mishra, Justice Vineet Saran, and Justice M. R. SHAH collectively pronounced judgment on Pharmacy Act, 1948 and All India Council of Technical Education Act, 1987. Shri Maninder Singh, learned Senior Advocate appearing on behalf of PCI has vehemently submitted that having regard to the statutory scheme contained in the Pharmacy Act, which is a complete code by itself dealing with the subject of pharmacy, the jurisdiction for regulating the standards of education in the subject of pharmacy and subsequent professional conduct of pharmacists vests entirely in the PCI and AICTE does not have any jurisdiction or power in this behalf.

That, as such, the issue involved in the present batch of cases is now not res integra and is clearly covered by the decision of this Court in the case of AICTE v. Shri Prince Shivaji Maratha Boarding House’s College of Architecture. It is submitted that, in the said case, while dealing with an identical statutory scheme in the case of Council of Architecture constituted under the Architects Act, 1972 , this Court has held that even when the definition of “technical education” in Section 2(g) of the AICTE Act also uses the word “architecture”, the said word would have to be dropped from the definition of “technical education” and shall be treated as inapplicable in cases where AICTE imports its regulatory framework.

It is further submitted that, in that case, it is held that insofar as recognition of degrees and diplomas of architecture education is concerned, the Architecture Act, 1972 would prevail and that AICTE shall not be entitled to impose any regulatory measure in connection with the degrees and diplomas in the subject of architecture. Heavy reliance has been placed upon paragraphs 67 to 70 of the said decision.

Shri Harish Panday, learned counsel appearing on behalf of the AICTE submitted that AICTE was originally set up in the year 1945 by a Government resolution as a National Expert Body to advise Central and State Government for ensuring the coordinated development and technical education in accordance with approved standards and was playing effective role. It is submitted that taking into account the growing erosion of standard and pursuant to recommendation, a National Working Group was set up in November 1985 to look into the role of AICTE. In order to enable the AICTE to play its role effectively, it was recommended that council should be given the statutory power. The National Policy of Education 1986 also stipulated that Council will be vested with statutory power.

A Bill was introduced to ensure proper planning and coordinated development of Technical Education system in the country. It is submitted that the AICTE Act has been enacted with an object to provide for the establishment of an AICTE with a view to proper planning and coordinated development of the technical education system throughout the country; the promotion of qualitative improvement of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith. It is submitted that the power and functions assigned to AICTE is not only to prescribe norms and standards but to inspect, approve and withhold recognition of programmes and institutes.

Section 2(g) of the AICTE Act defines ‘technical education” and it includes “pharmacy”. Learned counsel on behalf of AICTE has taken us through various provisions of the AICTE Act and it is submitted that therefore the AICTE Act has been enacted for regulating and fixing minimum standard for technical education and education institutions in the field of technical education, as defined in Section 2(g) of the AICTE Act. It is submitted that the AICTE Act has been given all powers for fixing the minimum qualification and standards and regulating institutions and in case of failure to comply with its rules and regulations, power to take action, including withdrawal of the approval.

So far as the Pharmacy Act is concerned, it is a pre-Constitution Act which was enacted in the year 1948 with the primary object to make better provisions for regulation of the profession and practice of pharmacy and for that  purpose to constitute Pharmacy Council. It is submitted that perusal of the object, aim and provisions of the Pharmacy Act makes it clear that the Pharmacy Act which is a prior Act has been primarily enacted to regulate the professionals only. It is submitted that in the year 1987, AICTE has been given the statutory status with the sole authority to regulate and prescribe minimum norms and standard for Technical Education and technical instructions as defined under the AICTE Act. It is submitted that after coming into AICTE Act, it is entirely within the domain of the AICTE Council to grant approval to a new course or to recognize a new institute.

The issue involved in the present batch of cases is regarding the 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, registration as a pharmacist, regulation of future professional conduct etc.While answering the issues/questions involved in the present batch of petitions, first of all, what is required to be considered is whether the Pharmacy Act which is a prior Act to that of AICTE Act can be said to be a special Act with special provisions in the field of Pharmacy?

Section 10 of the Pharmacy Act empowers the PCI to frame Education Regulations prescribing the minimum standard of education required for qualification as a pharmacist. As per Section 12 of the Pharmacy Act, any “authority” in a State that is empowered to conduct a course of study in pharmacy may apply to the Central Council for approval of the course in accordance with the Education Regulations. Likewise, any authority which conducts an examination of a State for pharmacy may apply to the PCI for approval of such examination. A student who has passed/completed an approved course and passed an approved examination can only be registered as a Pharmacist subject to meeting other requirements. Section 13 of the Pharmacy Act empowers the Central Council to withdraw approval accorded to the ‘course of study’ and ‘examination’ for failure to comply with the prescribed norms.

Section 16 of the Pharmacy Act empowers the Executive Committee to appoint inspectors to inspect any institution which provides an approved course of study or those institutions which apply for approval of course of study or examination. Section 29 deals with preparation and maintenance of a register of pharmacists. Section 35 provides for entry of additional qualifications in the register in relation to any registered pharmacist. Section 36 provides for the removal of any person from the register, either permanently or for a temporary period. As per Section 42 of the Pharmacy Act, a person may not practice the profession of pharmacy unless he or she is registered as a pharmacist in accordance with the Pharmacy Act. Sub-section (2) of Section 42 is a penal provision which states that any person who is not a registered pharmacist and contravenes subsection (1) of Section 42 shall be punishable with imprisonment for a term which may extend to six months, or with fine not exceeding one thousand rupees or with both. Thus, the court held that all these Transferred Cases/Appeals/Writ Petitions stand disposed of accordingly.

“It is further directed the concerned institutions who increased their intake capacity as approved by AICTE and their increase in intake capacity was not approved by PCI, shall apply afresh for increase in intake capacity and/or evening shift for the next academic year within a period of four weeks from today and their cases for increase in intake capacity and/or applications for recognition and/or applications for approval of the course or evening shift shall be considered by the PCI in accordance with the Pharmacy Act, 1948 and rules and regulations framed therein and the norms prescribed by the PCI.”

View/Download Judgement: The Pharmacy Council of India Versus Dr. S.K. Toshniwal Educational Trusts Vidarbha Institute of Pharmacy and Ors.

– Karthik K.P

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