IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 3634 of 2011
With
SPECIAL CIVIL APPLICATION No. 4567 of 2011
With
SPECIAL CIVIL APPLICATION No. 3633 of 2011
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 3 2 To be referred to the Reporter or not ? YES Whether their Lordships wish to see the fair copy of the judgment ? NO Whether this case involves a substantial question 4 of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO =========================================================
RAHULKUMAR JASVANTLAL PANCHAL - Petitioner(s)
Versus
STATE OF GUJARAT - THROUGH SECRETARY & 8 - Respondent(s)
=========================================================
COMMON APPEARANCE : SCA Nos.3634, 4567 & 3633 /2011
MR GAURAV CHUDASAMA for Petitioner(s) : 1, MR PK JANI GOVERNMENT PLEADER with MR LB DABHI ASST.GOVERNMENT PLEADER for Respondent(s) : 1, DS AFF.NOT FILED (N) for Respondent(s) : 2,5 - 6, 8, MR DHAVAL G NANAVATI for Respondent(s) : 3, MR HRIDAY BUCH for Respondent(s) : 4, MR DC DAVE for Respondent(s) : 7, MS SAMATA V PATEL for Respondent(s) : 9,
MS VD NANAVATI for Respondent(s): 8 in SCA Nos.4567 & 3633/2011 only
========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH C.A.V. JUDGMENT
Date : 28/08/2012
1.00. As common question of facts and law arises in this group of petitions, they are being heard, decided and disposed of by this Common Judgement and Order.
2.00. Special Civil Application No. 3633 of 2011 has been preferred by the petitioner for appropriate writ, order and/or direction directing the respondent No.3 – Pharmacy Council of India and respondent No.9 – Gujarat State Pharmacy Council, to register the name of the petitioners as Pharmacist in under the Pharmacy Act, 1948.
2.01. In Special Civil Application No.3634 of 2011 similar prayer is made by the petitioner to direct the respondent Nos.3 and 9 to register his name as Pharmacist.
2.02. In Special Civil Application No. 4567 of 2011 also similar prayer is made by the petitioner to issue appropriate writ, order and/or direction directing the respondent Nos.3 and 9 to register his name as Pharmacist under the Pharmacy Act, 1948.
3.00. It is the case of the respective petitioner of Special Civil Application Nos.3633, 3634 and 4567 of 2011 that they took admission through the respondent No.2 – Central Admission Committee in the respondent No.5 College which was approved by the respondent No.4 – Saurashtra University and All India Council for Technical Education (“AICTE” for short) That he studied the course approved by the respondent No.3 and passed the examination held by the respondent No.4 and cleared the first year examination from the respondent No.5 college held in April, 2006. It is the case of the petitioners that thereafter in the year 2006, the petitioners and other students had approached the respondent No.4 university, and sought transfer from the respondent No.5 college and accordingly all the students were transferred from respondent No.5 college to respondent No.2 college and half of the students were transferred to respondent No.6 college and half of the students were transferred to another college.
3.01. It is the case of the petitioners that the petitioners had studied the course approved by the respondent No.3 and passed the examination held by the respondent No.4 University and has cleared the second year from the respondent No.6 college held in the month of April, 2007.
3.02. It is also the case of the petitioners that the petitioners have also completed training programme as per the Pharmacy Act. It is the case on behalf of the petitioners that the petitioners had completed B.Pharm Course from the respondent No.7 college in the year 2010. It is the case on behalf of the petitioners that thereafter the petitioners had on several occasions approached the respondent No.9 - Gujarat State Pharmacy Council to register their names as Pharmacist under the Pharmacy Act, however the name of the petitioners are not registered as Pharmacists, on the ground that the institution in which the petitioners had studied in the first year i.e. respondent No.5, the same was not approved by the Pharmacy Council of India and therefore, the petitioners were not eligible to get admission in Pharmacy Course. Therefore, the petitioners have preferred the aforesaid Special Civil Applications for the aforesaid relief.
3.03. Mr.Gaurav Chudasama, learned advocate appearing on behalf of the respective petitioner has submitted that as such the petitioners got admission in respondent No.5 college / institution through the respondent No.2 - Central Admission Committee. It is submitted that as the respondent No.5 institution / college was recognized by the AICET as well as respondent No.4 university for imparting the course of Diploma in Pharmacy and the respondent No.5 college / institution was included in the list maintained by the Central Admission Committee – respondent No.2 and when the petitioners got admission in the respondent No.5 college, recognized by AICTE and approved and affiliated with the respondent No.4 college and thereafter when the petitioners have completed their study in Diploma in Pharmacy from the respondent No.6 college, which was even approved by the Phamacy Council of India – respondent No.3 and even thereafter when the petitioners have completed their B.Pharm Course from the respondent No.7 institution, which has been recognized and approved by the Pharmacy Council of India – respondent No.3, the action of the concerned respondent Nos.3 and 9 in not registering the names of the petitioners as Pharmacists under the Pharmacy Act, is absolutely illegal and most arbitrary. It is submitted that as such there is no fault on the part of the petitioners when they were given admission in the first year Diploma Course in the respondent No.5 college / institution by the Central Admission Committee – respondent No.2. It is submitted that as such, it was the respondent No.2 – Central Admission Committee who gave admission to the petitioners in the respondent No.5 institution which was even recognized by the AICTE.
3.04. Mr.Chudasama, learned advocate appearing on behalf of the respective petitioner has relied upon the decision of the learned Single Judge of this Court rendered in Special Civil Application Nos.5328 to 5732 of 2010 by which, in similar set of facts and circumstances, the learned Single Judge has directed the Gujarat State Pharmacy Council – respondent No.9 herein, to register the name of the petitioners in those Special Civil Applications, who are similarly situated to the petitioners herein.
By making above submissions and relying upon the above decisions, it is requested to allow these Special Civil Applications.
4.00. In response to the notice issued by this Court, an Affidavit-in-reply is filed on behalf of the Central Admission Committee – respondent No.2 and the State Government – respondent No.1 and the concerned colleges / institutions and even respondent No.4 – Saurashtra University. It is the case on behalf of the concerned respondents, except Pharmacy Council of India – respondent NO.3, that the respondent No.5 college was recognized by the AICTE and therefore, the petitioners were given admission in the respondent No.5 college in Diploma in Pharmacy. It is the case of the respondents, except respondent Nos.3 and 9, that as once the institution / college is recognized by the AICTE and the same is affiliated with the concerned University, there is no further requirement under the Pharmacy Act that the concerned institution / college is further required to get approval of the Pharmacy Council of India.
4.01. On the other hand it is the case on behalf of the respondent No.3 – Pharmacy Council of India and respondent No.9 - Gujarat State Pharmacy Council, that despite the fact that the concerned institution / college is recognized by the AICTE, considering section 12 of the Pharmacy Act as well as regulations more particularly Regulation No.9, any authority in a State which conducts a course of study for Pharmacy is required to apply to the Central Council for approval of the Course and unless and until the same is approved by the Central Council, no authority / institution can conduct the course which has not been approved by the Pharmacy Council and those students who have studied in such institution and studied the course which have not been approved by the Pharmacy Council of India, are not entitled to get their names registered as Pharmacists.
4.02. It is the case on behalf of the respondent No.3 - Pharmacy Council of India that the recognition by the AICTE to run the institution is different and course to be studied by the concerned institution and the examination to be conducted by the concerned University to be approved by the Pharmacy Council are different and both operate in two different fields. It is therefore, submitted that as such even the concerned State authorities and even the respondent No.2 – Central Admission Committee when informed not to include the names of those institutions who have not got approval of the course to be taught from the Pharmacy Council, for the purpose of admission in Diploma in Pharmacy and Bachelor of Pharmacy (“B-Pharm” for short), no illegality has been committed. Therefore, it is submitted that as the respondent No.5 institution, where the respective petitioners got admission in the first year, was not recognized by the Pharmacy Council and even the examination conducted by the respondent No.4 University was not approved by the Pharmacy Council as required under the provisions of section 12 of the Pharmacy Act, 1949 read with Regulation 9 of the Education Regulations, 1991, the names of the petitioners are not required to be registered as Pharmacists under the Pharmacy Act and therefore, no illegality has been committed by the respondent Nos.3 and 9 in refusing to register the names of the respective petitioner as Pharmacists under the Pharmacy Act.
4.03. Now, so far as the reliance placed upon the decision of the learned Single Judge rendered in Special Civil Application Nos.5328 to 5732 of 2010 is concerned, it is submitted against the said decision, Letters Patent Appeals have been preferred and the same are pending final adjudication and therefore, as such the said judgement is subjudice and therefore, it is requested not to consider the decision of the learned Single Judge rendered in the aforesaid Special Civil Applications.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length.
6.00. At the outset, it is required to be noted that as such the respective petitioners got admission in the first year Diploma Course in Pharmacy in the respondent No.5 institution which was recognized by the AICTE and they got admission through the respondent No.2 – Central Admission Committee. It is also not in dispute that the name of the respondent No.5 institution was included in the list prepared and maintained by the respondent No.2 – Central Admission Committee for admission in Diploma in Pharmacy and the admissions were offered by the respondent No.2 – Central Admission Committee to the petitioners and it is not that the petitioners voluntarily got admission on their own in the respondent No.5 institution. Therefore, as such the petitioners are not at fault in getting admission in the respondent No.5 institution. It appears that thereafter the petitioners got transferred in second year in other institution which is as such recognized and approved by the Pharmacy Council of India and thereafter they have completed their course in Diploma in Pharmacy from the institution which has been recognized by the Pharmacy Council of India and even they have completed B.Pharm also. The names of the respective petitioner are not registered as Pharmacist under the Act on the ground that they got admission and completed their first year from the respondent No.5 college / institution which was not approved and recognized by the Pharmacy Council of India and the course which was imparted to the respective petitioners and the examination conducted by the respondent No.4 university, were not approved by the Pharmacy Council of India. On the other hand it is the case on behalf of the concerned respondents, except Pharmacy Council of India and Gujarat Pharmacy Council, that as the respondent No.5 got recognization of the AICTE, there is no further requirement of getting recognition from the Pharmacy Council of India under the Pharmacy Act and/or Regulations framed thereunder.
6.01. For the aforesaid, Section 12 of the Pharmacy Act, 1948 as well as Regulation 9 of the Education Regulations, 1991 for the Diploma Course and Pharmacy are required to be considered, which read as under :-
“Section 12. Approved course of study and examination:-
(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 Regulation, 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 State 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.”
6.02. “Regulation 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 these regulations.”
6.03. It cannot be disputed that Pharmacy Council of India is a statutory body constituted under the Pharmacy Act, 1948. It is a Central Act passed by the Parliament with an objective of regulating education and protection of provisions of Pharmacy in the country in order to ensure that only qualified and skilled manpowers takes care of the health of the society. It also cannot be disputed that in order to fulfill the objectives of the Pharmacy Act, the following powers and responsibilities are entrusted to the Pharmacy Council of India under the Pharmacy Act :-
(i) 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 institution seeking approval of the PCI for imparting education in pharmacy (Section 10 of the Pharmacy Act).
(ii) To ensure uniform implementation of the education standards through out the country. (section 10 of the Pharmacy Act)
(iii) To approve the courses of study and examination for pharmacists i.e. approval of the academic training institutions providing pharmacy courses (section 12 of the Pharmacy
Act).
(iv) To withdraw approval, if the approved course of study or an approved examination does not continue to be in conformity with the education standards prescribed by the PCI (section 13 of the Pharmacy Act).
(v) To approve qualifications granted outside the territories to which the Pharmacy Act extends
i.e. the approval of foreign qualifications (section 14 of the Pharmacy Act).
6.04. Thus, it appears that the Pharmacy Act empowers PCI to regulate Pharmacy Education for registration. By way of section 10 of the Pharmacy Act it empowers the PCI to frame regulation called Education Regulation, prescribing minimum standard of education required for qualification as Pharmacist and consequently PCI has framed Education Regulation which are revised from time to time depending upon the need of the provision and presently Education Regulation 1991 is in force. Considering Section 12 of the Pharmacy Act, though a particular institution / college is recognized by the AICTE under the provisions of the AICTE Act, any authority in a State which conducts a course of study for pharmacists is required to 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, may declare the said course of study to be an approved course of study for the purpose of admission to an approved examination for pharmacists.
6.05. As per sub-section (2) of section 12, any authority in a State which holds an examination in pharmacy (concerned University who holds the examination) is required to 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 Regulation, may declare the said examination to be approved examination for the purpose of qualifying for registration as a pharmacist under the Act.
6.06. Even as per sub-section (3) of section 12 of the Pharmacy Act, every authority in the State which conducts an approved course of study or holds an approved examination is required to 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.
6.07. Thus, considering section 12 of the Pharmacy Act, even if a concerned institution / college is recognized by the AICTE and/or AICTE has granted approval to such institution / college for starting new technical education for the purpose of qualifying of registration as an Pharmacist under the Act, first of all the concerned institution / college in a State which conducts a course of study for Pharmacist is required to first get approval of the course to be imparted by them by the Central Council and if the Central Council is satisfied after such inquiry as it thinks fit that the said course of study which is to be imparted by the concerned institution / college is in conformity with the Education Regulation and declares such course of study to be approved course of study for the purpose of qualifying for registration as a pharmacist under the Pharmacy Act, such an institution who might have been granted approval by the AICTE under the AICTE Act cannot impart any education / course of study for pharmacist unless and until the same is approved by the Central Council as provided in sub-section (1) of section 12.
6.08. Not only that but even after the course of study for pharmacist to be imparted by the concerned institution is approved by the Central Council and the concerned study or course to be imparted by the institution is approved by the Central Council, when the examination is to be conducted by the concerned authority / University, even approval of the Central Council is required to be obtained by such institution / college as provided in sub-section (2) of section 12 and/or the concerned authority / university in a State which holds an examination in pharmacy and is required to apply to the Central Council for approval of the examination, and unless and until the Central Council is satisfied, after such enquiry as it thinks fit to make, that the said examination is in conformity with the Education Regulation, and unless and until the said examination is approved by the Central Council for the purpose of qualifying for registration as a pharmacist under the Act, even the concerned university / authority in a State which holds an examination in pharmacy cannot hold examination conducted by such University / authority in the State without getting the same approved, as required under sub-section (2) of section 12, which is required to be approved by the Central Council for approval of the examination, even concerned students who might have passed such examination conducted by the University / Authority in the State but not approved by the Central Council, their name are not required to be registered as pharmacist under the Act.
6.09. It appears that it is the case on behalf of the concerned respondents, except Pharmacy Council of India and Gujarat State Pharmacy Council, that once the concerned institution / college has got recognition and/or the same is approved by the AICTE under the AICTE Act, further approval / recognition of Central Council and/or PCI is not required, which cannot be accepted. Recognition of institution and/or approval for starting new institution / college by the AICTE under the AICTE Act and approval from the Central Council of the course conducted by any authority in a State and approval of the examination by the Central Council, examination to be conducted by the concerned authority / University in a State as provided under section 12, operate in two different fields. Therefore, on conjoint reading of the provisions of the AICTE Act as well as Pharmacy Act and the purpose and object for which the Pharmacy Act is enacted, it is to be held that despite the recognition / approval by the AICTE under the AICTE Act, course of study for pharmacist to be conducted by any authority in a State/Institution/College is required to be approved by the Central Council and unless and until such course of study to be conducted by the concerned institution is approved by the Central Council, such an institution cannot impart study for pharmacy courses and even the concerned university which conducts examination is also required to get first approval of the examination to be conducted by them and therefore, any student who has studied in the institution whose study of course has not been approved by the Central Council and/or who has cleared the examination conducted by any authority / University in the State, which is not approved by the Central Council, as such they cannot be said to be qualified and they shall not be qualified for the purpose of registration as Pharmacist under the Act. Therefore, as such no illegality has been committed by the concerned authority – respondent Nos.3 and 9 and as such the respondent Nos.3 and 9 are justified in insisting for course of study for pharmacist to be conducted by the concerned University / institution approved by the Central Council and the examination to be conducted by the concerned authority / university approved by the Central Council. Under the circumstances, the contention on behalf of the petitioners as well as concerned respondent (except Pharmacy Council) that once the institution / college has got approval of the AICTE under the AICTE Act, further approval of the Central Council / PCI is not required, cannot be accepted. The recognition of the concerned institution for starting a new technical institution / pharmacy college of PCI may not be required but course of study for pharmacy to be conducted by the concerned University which shall be required in conformity with the education regulation and approval of the examination to be conducted by the concerned authority / university in the State, of the Central Council is must for the purpose of qualifying for registration.
6.10. Now so far as the case of the respective petitioners is concerned, they are required to be considered in the peculiar facts and circumstances of the case. As stated above, for whatever the reasons, either because of misinterpretation of the provisions of law by the concerned State Authorities inclusive of the respondent No.2 – Central Admission Committee and even the AICTE, respective petitioners were granted admission by the Central Admission Committee in the respondent No.5 college / institution which was though recognized by the AICTE under the AICTE Act, but its course of study was not approved by the PCI and therefore, as such there was no fault on the part of the concerned petitioners in getting admission in respondent No.5 college – institution whose course of study for pharmacy was not approved by the PCI.
6.11. It is also required to be noted that subsequently from / in the second year, the petitioners have studied from another college / institution which has been recognized by the PCI and not only that on the basis of their Certificate in Diploma in Pharmacy, they have further studied in B.Pharm and they have also completed their study in B.Pharm. Under the circumstances, and in the peculiar facts and circumstances of the case, the registration of the petitioners under the Pharmacy Act cannot be refused solely on the ground that they have studied in the first year Diploma in Pharmacy from an institution / college, course of study of which was not recognized by the Pharmacy Council of India, more particularly when the Central Admission Committee had granted admission to the petitioners in the said institution / college and the petitioners had not opted the said institution / college as per their wish and will and when the petitioners are not at fault at all in getting the admission in the first year in the said college / study and therefore, the petitioners cannot be punished when they have studied and invested valuable years of their career.
7.00. In view of the above and for the reasons stated above, present Special Civil Applications are partly allowed and it is observed and held that despite the concerned institution/college is recognized / approved by the AICTE under the AICTE Act, still their course of study in Pharmacy to be conducted by the institution is required to be got approved from the Central Council and such institution / college is required to get approval of the course from the Central Council and even examination in Pharmacy to be held and conducted by the Authority in a State/ University is also required to be got approved from the Central Council, for the purpose of qualifying for registration in Pharmacy under the Pharmacy Act.
However, in the peculiar facts and circumstances of the case narrated hereinabove, respondent Nos.3 - Pharmacy Council of India and respondent No.9 - Gujarat State Pharmacy Council, are hereby directed to positively consider the case of the respective petitioners for registration as Pharmacist under the Pharmacy Act at the earliest and their registration shall not be denied solely on the ground that they have studied in first year Diploma in Pharmacy in respondent No.5 college and if concerned petitioners otherwise fulfill and/or satisfy all other criteria and if it is found that they have completed their course (except first year) in Diploma Pharmacy as well as Bachelor of Pharmacy (B.Pharm) from the recognized institution / college.
Rule is made absolute to the aforesaid extent. No costs.
rafik [M.R. Shah,J]