# HMS College of Pharmacy, Bulandsahar & Anr v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 934
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-27
- **Case number:** Writ -C No. 8389 of 2023
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hms-college-of-pharmacy-bulandsahar-anr-v-state-of-u-p-ors-49361
- **Pages:** 26

## Headnote

Civil Law - Pharmacy Act, 1948 - Sections
10, 12 & 13 - Education Regulations, 2020
- Regulations 8 & 9 - U.P. Pravidhik
Shiksha Adhiniyam, 1962 - Sections 12, 13
& 14 - Uttar Pradesh Pravidhik Shiksha
(Committee
and
Sub-Committees,
Affiliation
of
Institutions)
Regulation,
2000 - Regulations 12, 13 & 14 -
Affilliation / Recognition - Denial of -
Validity - Matter pertains to institutions
approved by PCI whose applications for
extension
of
affiliation
for
2023-24
rejected - Board's decision was primarily
based on District Magistrate's inspection
report
citing
certain
shortcomings,
unfulfilled
by
institutions,
leading
to
rejection of applications for affiliation
extension - St. Government arbitrarily
denied affiliation to various institutions
despite PCI approval and prior affiliation
for 2022-23, without relying on any
substantive material - St. and Board
initiated counselling process prematurely,
prior to expiry of timeline fixed by
Supreme Court in order dated 06.09.2023,
rendering institutions approved by PCI
within permissible period ineligible for
participation - This not only violates
Supreme
Court's
schedule
but
also
undermines objective of Pharmacy Act and
hampers
promotion
of
pharmacy
education - Hence, counselling process
initiated via decision dated 16.09.2023,
effective from 25.09.2023, quashed - St.
Government and Board directed to comply
to
Supreme
Court's
guidelines
dated
06.09.2023
and
grant
affiliation
to
institutions that meet PCI norms, unless
St., based on cogent material, approaches
PCI under Section 13 for revocation of
such approval. (Para 10, 36)

Writ petitions disposed off. (E-13)

List of Cases cited:

## Text

_Characters 0–39,960 of 83,952. This is a partial read: ask again with offset=39960 for what follows._

934 INDIAN LAW REPORTS ALLAHABAD SERIES
joining service on or after 01.01.2004, may be
given a one-time option to be covered under the
CCS (Pension) Rules, 1972 (now 2021). The
said option may be exercised by the
Government servants latest by 31.08.2023. In
fact the Government of India also called for list
of pending cases of employees seeking
convertion from contributory pension scheme
to old pension scheme by the letter dated
19.02.2023, in which following details were
called for:

(i) The details of employees in your
department in Secretariat and under your
control viz., Heads of Department, Public
Sector Undertakings, Statutory Boards and
Government Societies for whom orders have
been issued for conversion from Contributory
Pension Scheme to Old Pension Scheme with
authority (G.O. No. and Date along with a copy
along with case history from 2003 to till date.

(ii) The details of employees seeking Old
Pension Scheme from Contributory Pension
Scheme either under the ambit of Government
Orders/Clarifications/Court
Orders
and
pending court cases/pending cases with specific
case
history
may
be
forwarded
for
consolidation and taking a final decision in the
matter after due examination.

13.
Therefore,
the
retrospective
amendment/change affecting the vested or
accrued
rights
of
employees,
adversely
affecting their pension, was declared to be
invalid as held by the Hon'ble Supreme Court
of India in the case of Chairman, Railway
Board v. C.R. Rangadhamaiah, (1997) 6 SCC
623."

21. It would be an added buttress to
premise the petitioner's right that her right to be
governed by the old pension scheme, would be
traceable to the date of commencement of the
recruitment process. There appears to be
consensus of opinion on the issue, amongst
various High Courts, including the Supreme
Court's approval to the principle that rights
crystallize about the governing pension regime,
like other rights, with reference to the date on
which the process of recruitment commenced.

22. This is quite apart from the principle
on which this Court finds for the petitioner that
the petitioner's right stands crystallized on the
date the letter of allocation was issued, and for
the most, the day when the District Inspector of
Schools declined to enforce the allocation and
secure an appointment for her, which was well
before the cut-off date.

23. In the result, this petition succeeds and
is allowed. Let a mandamus issue to each of the
respondents, commanding them to treat the
petitioner governed by the General Provident
Fund-cum-Pension Scheme, that was in
vogue
prior
to
enforcement
of
the
contributory pension scheme in terms of
Government Order No. सा-3-379/िस-2005301(9)-2003 dated 28th March, 2005 and to
ensure deduction/ payments of contribution
towards retiral benefits for the petitioner
accordingly.

24. Costs easy.
----------
(2023) 10 ILRA 934
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.09.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ -C No. 8389 of 2023
along with other connected cases

HMS College of Pharmacy, Bulandsahar &
Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Ajay
Pratap
Singh
10 All. HMS College of Pharmacy, Bulandshahar & Anr. Vs. State of U.P. & Ors.
935
Counsel for the Respondents:
C.S.C., D.K. Singh Chauhan, Ravi Singh

Civil Law - Pharmacy Act, 1948 - Sections
10, 12 & 13 - Education Regulations, 2020
- Regulations 8 & 9 - U.P. Pravidhik
Shiksha Adhiniyam, 1962 - Sections 12, 13
& 14 - Uttar Pradesh Pravidhik Shiksha
(Committee
and
Sub-Committees,
Affiliation
of
Institutions)
Regulation,
2000 - Regulations 12, 13 & 14 -
Affilliation / Recognition - Denial of -
Validity - Matter pertains to institutions
approved by PCI whose applications for
extension
of
affiliation
for
2023-24
rejected - Board's decision was primarily
based on District Magistrate's inspection
report
citing
certain
shortcomings,
unfulfilled
by
institutions,
leading
to
rejection of applications for affiliation
extension - St. Government arbitrarily
denied affiliation to various institutions
despite PCI approval and prior affiliation
for 2022-23, without relying on any
substantive material - St. and Board
initiated counselling process prematurely,
prior to expiry of timeline fixed by
Supreme Court in order dated 06.09.2023,
rendering institutions approved by PCI
within permissible period ineligible for
participation - This not only violates
Supreme
Court's
schedule
but
also
undermines objective of Pharmacy Act and
hampers
promotion
of
pharmacy
education - Hence, counselling process
initiated via decision dated 16.09.2023,
effective from 25.09.2023, quashed - St.
Government and Board directed to comply
to
Supreme
Court's
guidelines
dated
06.09.2023
and
grant
affiliation
to
institutions that meet PCI norms, unless
St., based on cogent material, approaches
PCI under Section 13 for revocation of
such approval. (Para 10, 36)

Writ petitions disposed off. (E-13)

List of Cases cited:

1. Committee of Management Jai Prakash
Charitable Trust Vs St. of U.P. & ors. along with
connectedmatter in Writ-C No. 4953 of 2023
decided on 22.09.2023, (Paras 35 to 40)

2. Parshvanath Charitable Trust & ors. Vs All
India Council for Technical Educatoin & ors.;
(2013) 3 Supreme Court Cases 385, (Paras 24,
25)

3. Pharmacy Council of India Vs Dr. S.K.
Toshniwal Educational Trusts Vidarbha Institute
of Pharmacy & ors.; (2021) 10 SCC 657

4. Principal & ors. Vs the Presiding Officer &
ors.; (1978) 1 SCC 498

5. St. of T.N. & anr. Vs Adhiyaman Education &
Research Institute & ors.; (1995) 4 SCC 104
(Paras 27, 30, 34, 41)

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. All the writ petitions, raising
common question and as such, the same are
being decided by means of a common
order.

2. I have Heard Dr. L.P. Mishra,
learned counsel assisted by Sri Amit
Kumar Singh Bhadauriya, Prafulla Tiwari
and Shri Ajay Pratap Singh, learned
counsel for petitioners, Shri Nitin Mathur,
learned Counsel for the State, Shri Ravi
Singh learned counsel for P.C.I. Shri
D.K.S. Chauhan, learned counsel for
J.E.E.C. (P) and perused the material
available on record.

3. For the sake of convenience, the
facts as narrated in Writ-C No. 8389 of
2023 are being reproduced. The petitioners
claim to be running a B. Pharma Course
and
were
granted
approval
by
the
Pharmacy Council of India for the
academic sessions 2022-23 and thereafter
for the sessions 2023-24. The approval was
granted with the petitioners in pursuance to
936 INDIAN LAW REPORTS ALLAHABAD SERIES
powers vested in Pharmacy Council of
India under the Pharmacy Act.

4. In some of the cases, for the
academic sessions 2022-23 the approval
was granted by the Pharmacy Council of
India and affiliation was also granted by the
Board of Technical Education, which is
empowered
to
grant
the
affiliation.
However, in some of the cases, the
approval was granted by the Pharmacy of
India, however, the affiliation as is required
was not granted by the Board of Technical
Education and in some cases 'NOC' was
refused, which has led to the filing of the
present writ petitions for the sessions 202324.

5. The contention of counsel for the
petitioners is that in terms of the Pharmacy
Act a council created under the said Act,
known as the Pharmacy Council of India
(PCI) is a statutory body, which is
empowered to grant approval to the
colleges in respect of B.Pharma and D.
Pharma Courses. In terms of the mandate
of Section 12 of the said Act, specific
provisions exist for enabling an application
by an authority, which proposes to conduct
the course of study for Pharmacist to apply
for approval and on an application being
filed PCI, is empowered to grant the
approval for running the courses. Section
13 of the said Act empowers the Council to
withdraw the approval, on their existing
relevant material to do so, in terms of the
mandate of the Act. Section 16 of the Act
provides for power of carrying out
inspection in respect of the institutions
which are seeking the approval. Section 18
of the said Act empowers the Central
Council to make regulations with the
approval of Central Government for
regulating and carrying out the purpose to
the Act. It is stated that in terms of the
powers conferred by virtue of Section 10 of
the said Act, the Central Government
framed regulations known as Educational
Regulations 2020, which came into force
with effect from 9.10.2020. In terms of the
regulations as framed (hereinafter referred
to as 'the Regulations 2020), minimum
qualifications required for the students
undertaking the courses were prescribed.
Regulation 8 confers the power of the
Pharmacy Council of India to grant the
approval to any authority, which is
intending to start or conduct the diploma
courses. The Pharmacy Council of India is
also empowered to prescribe the regular
academic study in terms of Regulations 8
(2) and specifically proviso thereto, places
a restriction on Pharmacy Council of India
to grant approval to any institutions unless
all the parameters including the teaching,
accommodation, equipment and teaching
staff etc. are available with the institutions
seeking the approval of the Pharmacy
Council of India. Thus, in terms of the said
Act, the PCI is empowered to grant
approval and also places restrictions in
granting the approval for want of the
arrangements for teaching, equipment and
teaching staff, etc. The Pharmacy Council
of India is empowered to grant the approval
for the institutions running B.Pharma and
D.Pharma courses, however, the power to
issue diploma vests with the Board of
Technical Education in State of U.P., which
works and carries out the duties in terms of
U.P. Pravidhik Shiksha Adhiniyam 1962
and the regulations framed thereunder.

6. It is argued that although the
petitioners have been granted approval by
the PCI, the extension of affiliation for year
2023-24 has been refused to them based
upon some inspections carried out by some
committee, without even informing the
petitioners the reasons or any deficiencies.
10 All. HMS College of Pharmacy, Bulandshahar & Anr. Vs. State of U.P. & Ors.
937
In some of the cases, an NOC has been
refused on same foundation and aggrieved
against the same, the petitioners have
approached this Court. It is argued that
once the approval is granted by PCI, the
Board of Technical Education or the State
have no powers to refuse affiliations.

7. On the other hand, it is argued by
learned Standing Counsel that in terms of
the Act 1962, the powers of the Board
constituted under the Act or specified under
Section 13 and the power of the State
Government to issue directions from time to
time vest by virtue of Section 14 of the Act.
He draws my attention towards Section 13
(2) (vi) wherein, the Board can refuse
affiliation to any institutions, which does not
fulfill the criteria prescribed in terms of
standard of staff, instructions, equipments,
buildings, as may be laid down by the Board
in this behalf. He also draws my attention to
the regulations framed in exercise of power
under Section 23 of the said Act and
specifically draws my attention to Regulation
12, which provides for constitution of an
inspection
and
affiliation
committee
comprising of six persons specified in
regulation 12. He also draws my attention to
Regulation 13, which provides for the duties
to be followed by the Inspection and
Affiliation Committee. In the light of the said
powers conferred, by virtue of the Act and
the Regulations, it is argued that the State
Government had got inspections carried out
in respect of various institutions seeking
affiliation and they were found to be wanting
on various aspects, such as, said institutions
were
not
possessed
of
the
requisite
infrastructure, etc. It is also argued that in
terms of the report obtained from the
committee
comprising
of
the
District
Magistrate, the decision was taken not to
grant affiliation to various institutions, who
had applied for the same.

8. It appears from the record that prior
to the present writ petitions being filed, a
requirement for obtaining 'NOC' from the
State Government was prescribed by the
Pharmacy Council of India in respect of the
any institutions, which was desirous of
obtaining an approval for running the course,
the issue of requirement of 'NOC' was put to
challenge by various institutions. The issue
was addressed by this Court in the case of
Committee of Management Jai Prakash
Charitable Trust Vs. State of U.P. and
others along with connected matter in WritC No. 4953 of 2023 decided by this Court on
22.09.2023 wherein this Court had held that
the requirement prescribing for obtaining
the 'NOC' is bad in law. While deciding
the said writ petitions, the following
directions were given by this Court, which
are quoted herein below:

(35) A bare reading of the aforesaid
impugned letter reveals that the manner in
which the impugned action has been taken
by the State Government/Board, is violative
of principle of natural justice as the
impugned letter gives rises to civil
consequences for the reason that on the
direction of the State Government, the
district authorities have conducted a
surprise inspection of these pharmacy
institutions and have also submitted an
inspection
report
of
discrepancy
/shortcomings
arose
in
the
these
institutions to the State Government and on
the basis of the said report, the State
Government took decision to cancel the
NOC granted earlier to these institutions
and thereafter on the decision of the State
Government,
the
Board
issued
the
impugned letter cancelling the NOC of the
petitioners/
institution,
however,
no
opportunity whatsoever has been granted
to the petitioners/institutions to putforth
their version in respect of the said
938 INDIAN LAW REPORTS ALLAHABAD SERIES
discrepancy/shortcomings
to
the
petitioners/
institutions
before
taking
impugned action cancelling the NOC of
these institutions.

(36) Thus, this Court is of the view
that since neither any show cause notice
nor any opportunity of explanation has
been sought from these institutions by the
the State/Board and mechanical impugned
letter for cancellation of NOC has been
issued by them without assigning any
reasoning, the impugned order cannot be
sustained in the eyes of law. The
importance of a show cause notice as has
been reiterated by Apex Court in the case
of Umanath Pandey v. State of U.P.: (2009)
12 SCC 40 is as under:

"Notice is the first limb of this
principle.
It
must
be
precise
and
unambiguous. It should appraise the party
determinatively the case he has to meet.
Time given for the purpose should be
adequate so as to enable him to make his
representation. In the absence of a notice
of
the
kind
and
such
reasonable
opportunity, the order passed becomes
wholly vitiated. Thus, it is but essential that
a party should be put on notice of the case
before any adverse order is passed against
him."

(37) It is pertinent to mention here that
had any show cause notice been issued to
these institutions by the State/Board, the
matter would had ended there and then
as apparently in most of the cases, these
petitioners
have
a
plausible
answer/reasoning for the deficiency
pointed out by the State/Board. In any
case, the law stands settled that a party
to whose prejudice an order is intended
to be passed is entitled to a hearing
applies
even
to
authorities,
who
adjudicate upon matters involving civil
consequences.

(38) Before parting, this Court may
observe that there could indeed be a
necessity to impose certain restrictions so
as to prevent mushrooming growth of
pharmacy colleges. Such restrictions may
be in the larger general public interest.
However, if that has to be done, it has to be
done strictly in accordance with law and
not in the manner has purportedly has been
sought to be adopted by the State
Government. In any case, if and when such
restrictions are imposed by an authority
competent to do so, the validity of the same
can
always
be
scrutinized
on
the
touchstone of law.

(39) It is further to be noted that the
applications seeking approval for D.
Pharma or B. Pharma courses, as the case
may be, are required to be accompanied by
a "No Objection Certificate" ("NOC")
from the State Government and consent of
affiliation from the affiliating bodies i.e.
PCI. While scrutinizing such applications,
the
Council
can
always
take
into
consideration various factors, including the
reservation/comment
of
the
State
Government, if any, before deciding to
allow or reject such applications.

"(40) For all the aforesaid reasons,
the above-captioned writ petitions are
disposed of with the following directions :-

i. Impugned letter dated 18.05.2023
issued by the Secretary of the Board and
consequential order, if any, in reference to
the impugned letter dated 18.05.2023 are
hereby quashed.

ii. Liberty is granted to the State
Government/Board to take action on the
issue, in accordance with law, if so desires.

iii. If the State Government/Board
refers any issue in respect of the
petitioners/institutions to the PCI, this
Court hope and trust that the PCI shall
make an earnest endeavour to consider and
decide the same, in accordance with law,
10 All. HMS College of Pharmacy, Bulandshahar & Anr. Vs. State of U.P. & Ors.
939
after affording opportunity to the aggrieved
person(s) expeditiously."

9. In the light of the said directions, it
was incumbent upon the Board to have
taken a decision with regard to request for
extension of affiliation by various institutes
for the session 2023-24, however, the
requests for the same was turned down in
some of the cases vide order dated
25.09.2023.

10. The problem in the present cases
has arisen in respect of the institutions,
which have been granted approval by the
Pharmacy Council of India but their request
for extension of affiliation for the session
2023-24 has been rejected by means of
order dated 25.09.2023 in terms of the
decision of the Board mainly based upon
the ground that an inspection was carried
out and in terms of the report submitted by
the
District
Magistrate,
certain
shortcomings were cited, which were not
fulfilled by the institutions, as such, the
applications for extension of grant of
approval were rejected.

11. The counsel for the respondent
Board as well as learned Standing Counsel
have argued that an advisory has been
issued by the Board not to grant the
approval of extension in respect of the
cases where the report of the District
Magistrate
highlights
discrepancies,
however,
the
shortcomings
are
not
rectified.

12. The counsel for petitioners as well
as respondents also placed before this
Court, an order passed by Hon'ble Supreme
Court in C.A. No.9048 of 2012 in
Miscellaneous Application No. 1927 of
2023 wherein the Supreme Court, on an
application filed by AICTE and the
Pharmacy Council of India, had passed an
order disposing of three applications vide
its order dated 6.9.2023, the extract of the
said order is quoted hereinbelow:-

"M.A. No. 1927/2023 in C.A. No.
9048/2012

"(a) Grant extension of the date for
completion of approval process up to
October
31st
2023
and
appeals/compliances process till November
30th 2023 to the Applicant/Pharmacy
Council of India for the academic year
2023-24;"

MA 1928/2023 in C.A. No. 9048/2012

"(a) extend the cut-off date for grant of
affiliation upto 15.09.2023 in respect of
Applicant Technical Institutions/courses
approved by AICTE for the Academic
Session 2023-24."

MA
No.
1929/2023
in
C.A.
No.9048/2012

"(a) Extend/relax the cut-off dates
specified in order dtd. 24.03.2023 for
affiliation and completion of Admissions
process by the Applicant University to
AICTE
and
CoA
approved
courses/institutions by a reasonable time,
as provided in para 21 of this Application."

3. Needless to state that the period
for counselling shall stand extended by
one month thereafter.

4.
The
applications
are,
accordingly, disposed of."

13. The counsel for the petitioners
also
draws
my
attention
to
the
guidelines
issued
by
the
State
Government on 30.06.2023 containing a
flow chart indicating the manner in
which, the affiliation applications ought
to be disposed of. A flow chart of the
affiliation process is being quoted
herein below (page 206 in Writ-C No.
7818 of 2023):-
940 INDIAN LAW REPORTS ALLAHABAD SERIES

AFFILIATION PROCESS

Registered Trust/Society/Company will
apply application on AKTU online portal
in the month of July/ at the beginning of
the academic session

Trust/Society/Company have appropriate
land with title and fill detailed online
application with Registration Fees

Examining Authority (The University)
will scrutinize the application

15 day

Examining Authority (The University)
will provide result to Institution via portal

Consent No

 Consent Yes

A consent letter shall be issued by the
Examining Authority (The University) to
the concerned institution via the portal

Proponent shall apply on regulatory
bodies (PCI/AICTE/COA) Portal

Approval from PCI/AICTE/COA

On receipt of the Approval Letter of on
regulatory bodies, proponent will apply on
the Examining Authority (The University)
portal for affiliation process

On receipt AKTU will form a 4 member
committee for physical verification under
University Regulation (6.2)

Yes
Report of the Committee will be uploaded
on portal for institution

Not Approved
Report submitted to affiliation
committee

5 Days

Approved

No

14. On the reading of the flow chart
as issued by the State Government, it
becomes clear that the approval from
PCI/AICTE/CoA is to be obtained prior in
Security
Result
Exit
Previous approval for State
Government under Section 23(2)
Submitted to Execute council for
approval
On Approval online affiliation
Certificate Issue
10 All. HMS College of Pharmacy, Bulandshahar & Anr. Vs. State of U.P. & Ors.
941
point of time before applying for affiliation
from the examining authority. In the light
of the said document and the order of the
Supreme Court as quoted herein above,
submission of counsel for petitioners is that
once the Supreme Court itself has extended
the time for seeking approval up to
31.10.2023 in respect of the Pharmacy
Council of India for the academic sessions
2023-24, it cannot be contemplated that the
approval process would not get extended
further. In fact, he argues that in terms of
the said order itself it was clarified that the
process of counselling shall also stand
extended by one month thereafter. He
argues that on plain reading of the order
passed by the Supreme Court, the only
logical thing that can flow is that the
approval process is to be completed by
31.10.2023, thereafter the affiliation is to
be concluded by the respective boards and
thereafter the counselling process would
get extended and concluded after the
processes are over, whereas in the present
case, the State Government has issued
counselling schedule in its decision taken
on 16.09.2023 wherein the first round of
counselling commenced with effect from
25.09.2023 and the first round of allotment
is to take place on 28.09.2023.

15. It is argued that when some of the
matters were being heard before this Court,
in respect of the institutions, which had
sought affiliation, but their affiliation
applications were not being decided, this
Court had noted down the statement of
Government Counsel that the counselling
process is not likely to commence soon and
was also stated that the same is likely to be
initiated next week. The said statement was
given on 20.09.2023 and in the light of the
said statement, coupled with the statement
that a decision shall be taken in terms of the
directions issued within a period of one
week, this Court in its order dated
20.09.2023 had directed the Board to take a
decision
on
the
application
of
the
petitioners therein for grant of affiliation
within a period of one week, however,
before initiating the counselling process. In
terms of the said directions given, the order
refusing the affiliation was passed by the
Board in its meeting held on 25.09.2023.

16. The counsel for the petitioners
argues that a wrong statement was made
before this Court when this Court was
passing order dated 20.09.2023, inasmuch
as, in the counselling schedule notified and
challenged in some of the petitions itself
indicates that the decision to notify the
schedule of counselling was taken on
16.09.2023 and once the said decision was
taken, the same ought to have been
informed to the Court. In any case, it is
proposed to be argued that the entire basis
for refusing the affiliation as can be
discerned from the order dated 25.09.2023,
being the report of the District Magistrate is
neither in accordance with the regulations
relied upon by the respondents nor was the
said decision ever communicated to the
petitioners at any point of time. It is further
argued that in any event, the Supreme
Court has categorically held in the catena
of cases, the interplay between the rights of
Pharmacy Council of India, constituted
under a Central Act and the powers to be
exercised by the affiliating body. My
attention is drawn to paragraph no. 24 and
25 of the judgment of the Supreme Court in
the case of Parshvanath Charitable Trust
and others Vs. All India Council for
Technical Educatoin and others; (2013) 3
Supreme Court Cases 385 and Pharmacy
Council of India Vs. Dr. S.K. Toshniwal
Educational Trusts Vidarbha Institute of
Pharmacy and others (2021) 10 SCC 657.
The said argument is to impress that all the
942 INDIAN LAW REPORTS ALLAHABAD SERIES
powers, which are vested in the Pharmacy
Council of India being under Central Act in
respect of the approval will supersede and
the powers conferred upon the Board by
virtue of the 1962 Act and the regulations
framed thereunder have to give way to the
powers to be exercised by the PCI.

17. An argument is also raised that the
difference between approval and affiliation,
is very significant and has been explained
by the Supreme Court in the case of
Principal and others Vs. the Presiding
Officer and others; (1978) 1 SCC 498
wherein the Supreme Court has observed as
under:-

"There is a significant difference
between 'affiliation' and 'recognition.
Whereas 'affiliation', it may be noted, is
meant to prepare and present the students
for public examination, 'recognition' of a
private school is for other purposes
mentioned in the Act and it is only when the
School is recognised by the "appropriate
authority" that it becomes amenable to
other provisions of the Act."

18. From the arguments raised at the
Bar and quoted herein above, it is required
that this Court appreciates the manner in
which the two Acts, first being Pharmacy
Act, 1948 and the second being The Uttar
Pradesh Pravidhik Shiksha Adhiniyan,
1962 are to operate.

19. The Pharmacy Act, 1948 was
enacted to regulate the profession of
Pharmacy. The Statements of Objects and
Reasons for which the Pharmacy Act was
enacted clearly laid down that the Act is to
regulate the professional education required
to practice the profession of pharmacy for
which several provisions were made. The
Act enacted in the year 1948 was amended
by Amendment Act No.24 of 1959 and
further by Amendment Act No.22 of 1982.
The Pharmacy Act provides for constitution
of Pharmacy Council of India (PCI) under
Chapter II and by virtue of Section 10 of
the said Act, the Central Council, with the
approval of the Central Government, could
make regulations to be called the Education
Regulations, prescribing the minimum
standing
of
education
required
for
qualification as a Pharmacist. Section 10 of
the Pharmacy Act, 1948 is quoted herein
below:

"10. Education Regulations.- (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 Regulations 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 examinations.
(3) Copies of the draft of Education
Regulations
and
of
all
subsequent
amendment 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 subsection (1) take into consideration the
10 All. HMS College of Pharmacy, Bulandshahar & Anr. Vs. State of U.P. & Ors.
943
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."

Section 12 of the Pharmacy Act
empowers the PCI to grant approval to the
institutions desirous of imparting Pharmacy
Education. Section 12 is quoted hereunder:-

12. Approved courses of study and
examinations.-

(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 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.

20. Section 13 of the Pharmacy Act
empowers the Central Council to withdraw
the approval so granted on any infirmity
being brought to its notice through the State
Government. Section 13 is quoted herein
below:

13. Withdrawal of approval. - (1)
Where the Executive Committee reports to
the Central Council that an approved
course
of
study
or
an
approved
examination does not continue to be in
conformity with the Education Regulations,
the Central Council shall give notice to the
authority concerned of its intention to take
into
consideration
the
question
of
withdrawing the declaration of approval
accorded to the course of study or
examination, as the case may be, and the
said authority shall within three months
from the receipt of such notice forward to
the Central Council through the State
Government such representation in the
matter as it may wish to make.

(2)
After
considering
any
representation which may be received from
the
authority
concerned
and
any
observations thereon which the State
Government may think fit to make, the
Council may declare that the course of
study or the examination shall be deemed
to be approved only when completed or
944 INDIAN LAW REPORTS ALLAHABAD SERIES
passed, as the case may be, before a
specified date."

21. In terms of the power conferred
on the Central Council by virtue of Section
18 of the said Act, it can make regulations
to carry out the purposes of this Chapter.

22. Chapter III of the Pharmacy Act
makes a provision for constitution of State
Council in the event of there being an
agreement made under Section 20 in
between the States, however, the said
powers need not be gone into by this Court
for the purposes of adjudicating the
controversy raised in the present case.

23. In terms of the powers conferred
upon the Central Council, Education
Regulations were framed in the year 2020
by virtue of Notification dated 09.10.2020.
The said regulations prescribed for the
course of Study. Regulation 8 prohibits any
authority from starting or conducting a
diploma in pharmacy course without the
prior approval of the PCI; Regulation 9
prescribes for examinations to be held at
the
end
of
the
academic
year;
Regulation 10 prescribes for eligibility
for
appearing
in
the
diploma
examinations; Regulation 16 provides
that the examinations required to be
undertaken by the students pursuing the
diploma course is to be held by an
authority in a State which is to be
approved by the PCI under Section
12(2) of the Pharmacy Act and it further
mandates that the approval is to be
granted to the Examining Authority
only
if
it
fulfills
the
conditions
specified
in
Appendix-B
to
the
Regulations;
and
Regulations
17
mandates and empowers the Examining
Authority to grant a certificate of having
passed the examination for the Diploma in
Pharmacy.

24. Regulation 8, which is relevant in
the present case, prescribes that any
authority intending to start a diploma
course shall obtain the prior approval of the
PCI and fulfils the requirement as are
specified in Appendix - A to the
Regulations.
Appendix
-
A
to
the
Regulations prescribes for the requirement
of accommodation, staff and non-teaching
staff etc. Regulation 8, Regulation 9 and
Appendix - A to the Regulations are
extracted herein below:

"8.
Approval
of
the
authority
conducting the course of study -

(1) No authority in a State shall start
or conduct Diploma in Pharmacy course of
study without the prior approval of the
Pharmacy Council of India.

(2) The course of regular academic
study prescribed under regulation 6 shall
be conducted in an institution, approved by
the Pharmacy Council of India under subsection (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,
equipments and teaching staff etc. as
specified
in
Appendix-A
to
these
regulations which may be amended by the
Pharmacy Council of India from time to
time.

9. Examination-

1)
There
shall
be
an
annual
examination at the end of the academic
year.
10 All. HMS College of Pharmacy, Bulandshahar & Anr. Vs. State of U.P. & Ors.
945

2) If necessary, there shall be a
supplementary examination for the students
who are not able to pass Diploma in
Pharmacy Part-1 or Part-II, as the case
may be, as per the criteria specified by the
examining authority.

3) The examinations shall be of
written and practical (including viva-voce)
nature, carrying maximum marks for each
part of a subject, as indicated in Table IV
and V below.

..........

Appendix-A

(See regulation 8)

Conditions to be fulfilled by the
academic institution

Any authority in India applying to the
Pharmacy Council of India for approval of
courses of study for Pharmacists under
sub-section (1) of section 12 of the
Pharmacy Act, 1948 shall provide.

(A) ACCOMMODATION

Suitable and sufficient accommodation
with adequate ventilation lighting and
other
hygienic
conditions
should
be
provided to the rooms for Principal /Head
of the department, office, class room,
library, staff, staff common room, students
common room, museum, stores etc.

At least four laboratories specified
below should be provided for:-

1. Pharmaceutics Lab.

2. Pharm. Chemistry Lab.

3. Physiology, Pharmacology and
Pharmacognosy Lab.

4. Biochemistry, Clinical Pathology,
Hospital and Clinical Pharmacy Lab.

In
addition
to
the
laboratories,
balance room, aseptic room or cabinet, a
machine room are also to be provided for.

Floor area of the laboratory should
not be less than 30 square feet per student
required to work in the laboratory at any
given time subject to a minimum of 500
square feet.

Laboratories should be fitted and
constructed in a manner that these can be
kept reasonably clean. Gas and water
fittings,
shelves,
fume
cupboards
be
provided wherever necessary.

The institutions shall provide "Model
Pharmacy" as per following details -

Model Pharmacy No. Area
Essential :
Running
Model
Community
Pharmacy

Desirable:
Drug
Model
Store
01
80 Sq. Mts.
(Including 10 Sq.
mt
for
Drug
Information
Centre & 10 Sq.
mt. for Patient
Counseling)

Wherever animal experimentations are
prescribed in the curriculum, the required
knowledge and skill should be imparted by
using computer assisted modules. Animal
hold area shall be as per the Committee for
the Purpose of Control and Supervision of
Experiments
on
Animals
(CPCSEA)
guidelines.

(B) STAFF

Principal/Director/Professor/Head of
Institution/Head of the Department may be
engaged in teaching upto eight hours a
week, and the work load of other teaching
staff should not be more than sixteen hours
per week.

Staff student ratio should not exceed
1:60 in theory classes and 1:20 in practical
classes. There should be two teachers for a
batch
of
30
students
in
practicals.
According to the above norms, the
946 INDIAN LAW REPORTS ALLAHABAD SERIES
following staff is required for an intake of
60 students:

1.
Principal/Director/Professor/
Head of Institution/Head of
the Department
- One
2. Lecturer:
• M.Pharm/Pharm.D
• B.Pharm with 3 years of
professional experience
Three
Four

In addition to regular faculty, the
institution can have Bachelor of Medicine
and Bachelor of Surgery (M.B.B.S) faculty
as visiting faculty for teaching Anatomy &
Physiology and Biochemistry and Clinical
Pathology.

The
minimum
qualification
and
experience of the teaching faculty including
the Principal/ Director/ Professor/ Head of
Institution/ Head of Department and their
payscales shall be as prescribed in the
Minimum Qualification for Teachers in
Pharmacy Institutions Regulations, 2014.

The pay scale of teaching staff shall
not be less than the scale of pay prescribed
by the State Government/ University Grants
Commission/
All
India
Council
for
Technical Education for similar category of
posts.

Provided that the above qualifications
shall not apply to the incumbents appointed
under the repealed Education Regulations.

Non-Teaching Staff

List of Non-Teaching staff for the
D.Pharm course:

1.
Laboratory
2
Technician
(Qualificatio
n-Diploma
in
Pharmacy)
2.
Laboratory
Attendent
4
3.
Office
Superintende
nt
1
4.
Clerk-cumAccountant
1
5.
StoreKeeper
1
6.
Typist
1
7.
Asstt.
Librarian
1
8.
Peons
2
9.
Cleaners/Sw
eepers
4
10. Gardener
1

Museum

Every institution shall maintain a
museum of crude drugs, herbarium sheets,
botanical specimens of the drugs and plants
mentioned in the course. In addition, the
following are recommended:-

1. Coloured slides of medicinal plants:

2.
Display
of
popular
patent
medicines; and

3. Containers of common usage in
medicines.

Library

Every institution shall maintain a
library
which
should
contain
books
mentioned in the syllabus and also the
10 All.