# PHARMACY COUNCIL OF INDIA v. RAJEEV COLLEGE OF PHARMACY AND ORS

- **Citation:** [2022] 12 S.C.R. 61
- **Court:** Supreme Court of India
- **Decided:** 2022-09-15
- **Case number:** Civil Appeal No. 6681 of 2022
- **Bench:** B. R. Gavai, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pharmacy-council-of-india-v-rajeev-college-of-pharmacy-and-ors-35465
- **Pages:** 25

## Headnote

Constitution of India - Article 19(1)(g) - Right to establish
an educational institution - Reasonable restrictions imposed thereon
by executive instructions - Impermissibility of- Vide Resolution/
Communication dtd.17.07.19, the appellant-PCI resolved to put a
moratorium on the opening of new pharmacy colleges for running
Diploma as well as Degree courses in pharmacy for a period of
five years beginning from the Academic Year 2020-2021 - Vide
another Resolution/communication dtd.09.09.19, the aforesaid
moratorium was modified exempting its application as indicated
therein - Writ petitions filed by respondents-Institutions before High
Courts of Karnataka, Delhi and Chhattisgarh challenging the
aforesaid Resolutions/communications were allowed - On appeal,
held: Right to establish an educational institution is a fundamental
right u/Article 19(1)(g) and reasonable restrictions on such a right
can be imposed only by a law and not by an executive instruction -
In the present case, the Resolutions/communications of the appellant,
which are in the nature of executive instructions, could not impose
restrictions on the fundamental right to establish educational
institutions u/Article 19(1)(g) and are liable to be struck down on
this ground - View taken by the High Courts of Karnataka, Delhi
and Chhattisgarh lays down the correct position of law - Pharmacy
Act, 1948 - ss.10, 18.
Dismissing the appeals, the Court
HELD: 1.1 All the three High Courts, i.e., Karnataka, Delhi
and Chhattisgarh, while allowing the writ petitions filed by the
respondent-institutions and quashing and setting aside the
Resolutions/communications of the Central Council of the
appellant-PCI, have, in a nutshell, held thus: (i) That the right to
establish educational institutions is a fundamental right
guaranteed under Article 19(1) (g) of the Constitution of India;
[2022] 12 S.C.R. 61
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(ii) That there can be reasonable restrictions on such a right.
However, such a restriction can be imposed only by law enacted
by the competent legislature; (iii) The Resolution/communication
dated 17th July 2019, vide which the moratorium was imposed is
an executive instruction and could not be construed as a law and,
therefore, the moratorium imposed by an executive instruction
is not sustainable in law. Apart from that, the learned Single Judge
of the Karnataka High Court has further found that the petitioners
before the High Court were entitled to establish colleges on the
principles of promissory estoppel and legitimate expectation. The
learned Single Judge of the Karnataka High Court as well as the
learned Single Judge of the Delhi High Court have also held that
the Resolution of the appellant-PCI was violative of Article 14 of
the Constitution of India inasmuch as the government institutions
and the institutions in the North Eastern region were exempted
from the applicability of the moratorium. It was found that such
an act was discriminatory. It was further found that the cap of 50
Pharma institutes per State was also arbitrary inasmuch as the
appellant-PCI does not take into consideration the fact that the
population of the States varies from State to State and, as such,
there could not have been a uniform formula of capping 50
pharmacy institutes for every State. [Paras 28, 29][75-C-H; 76A]
1.2 Vide the said Resolution, the Central Council resolved
to put a moratorium on the opening of new pharmacy colleges for
running Diploma as well as Degree course in pharmacy for a period
of five years beginning from the academic year 2020-2021. The
said Resolution dated 17th July 2019 was modified in the 107th
meeting of the Central Council of the appellant-PCI held on 5th
and 6th August 2019. It is clear, and in all fairness, not even
disputed by the appellant-PCI, that the moratorium was issued
by the Central Council of the appellant-PCI in its executive
powers and not by framing any regulation, as provided under
Sections 1

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PHARMACY COUNCIL OF INDIA
v.
RAJEEV COLLEGE OF PHARMACY AND ORS.
(Civil Appeal No. 6681 of 2022)
SEPTEMBER 15, 2022
[B. R. GAVAI AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Constitution of India - Article 19(1)(g) - Right to establish
an educational institution - Reasonable restrictions imposed thereon
by executive instructions - Impermissibility of- Vide Resolution/
Communication dtd.17.07.19, the appellant-PCI resolved to put a
moratorium on the opening of new pharmacy colleges for running
Diploma as well as Degree courses in pharmacy for a period of
five years beginning from the Academic Year 2020-2021 - Vide
another Resolution/communication dtd.09.09.19, the aforesaid
moratorium was modified exempting its application as indicated
therein - Writ petitions filed by respondents-Institutions before High
Courts of Karnataka, Delhi and Chhattisgarh challenging the
aforesaid Resolutions/communications were allowed - On appeal,
held: Right to establish an educational institution is a fundamental
right u/Article 19(1)(g) and reasonable restrictions on such a right
can be imposed only by a law and not by an executive instruction -
In the present case, the Resolutions/communications of the appellant,
which are in the nature of executive instructions, could not impose
restrictions on the fundamental right to establish educational
institutions u/Article 19(1)(g) and are liable to be struck down on
this ground - View taken by the High Courts of Karnataka, Delhi
and Chhattisgarh lays down the correct position of law - Pharmacy
Act, 1948 - ss.10, 18.
Dismissing the appeals, the Court
HELD: 1.1 All the three High Courts, i.e., Karnataka, Delhi
and Chhattisgarh, while allowing the writ petitions filed by the
respondent-institutions and quashing and setting aside the
Resolutions/communications of the Central Council of the
appellant-PCI, have, in a nutshell, held thus: (i) That the right to
establish educational institutions is a fundamental right
guaranteed under Article 19(1) (g) of the Constitution of India;
[2022] 12 S.C.R. 61
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(ii) That there can be reasonable restrictions on such a right.
However, such a restriction can be imposed only by law enacted
by the competent legislature; (iii) The Resolution/communication
dated 17th July 2019, vide which the moratorium was imposed is
an executive instruction and could not be construed as a law and,
therefore, the moratorium imposed by an executive instruction
is not sustainable in law. Apart from that, the learned Single Judge
of the Karnataka High Court has further found that the petitioners
before the High Court were entitled to establish colleges on the
principles of promissory estoppel and legitimate expectation. The
learned Single Judge of the Karnataka High Court as well as the
learned Single Judge of the Delhi High Court have also held that
the Resolution of the appellant-PCI was violative of Article 14 of
the Constitution of India inasmuch as the government institutions
and the institutions in the North Eastern region were exempted
from the applicability of the moratorium. It was found that such
an act was discriminatory. It was further found that the cap of 50
Pharma institutes per State was also arbitrary inasmuch as the
appellant-PCI does not take into consideration the fact that the
population of the States varies from State to State and, as such,
there could not have been a uniform formula of capping 50
pharmacy institutes for every State. [Paras 28, 29][75-C-H; 76A]
1.2 Vide the said Resolution, the Central Council resolved
to put a moratorium on the opening of new pharmacy colleges for
running Diploma as well as Degree course in pharmacy for a period
of five years beginning from the academic year 2020-2021. The
said Resolution dated 17th July 2019 was modified in the 107th
meeting of the Central Council of the appellant-PCI held on 5th
and 6th August 2019. It is clear, and in all fairness, not even
disputed by the appellant-PCI, that the moratorium was issued
by the Central Council of the appellant-PCI in its executive
powers and not by framing any regulation, as provided under
Sections 10 and 18 of the said Act. The moot question, therefore,
that requires consideration, is as to whether the moratorium, as
imposed by the Central Council of the appellant-PCI, could have
been imposed by the said Resolution, which is in the nature of an
executive instruction of the Central Council. [Paras 31-33][76D-E; 77-C-D]
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1.3 The Constitution Bench consisting of 11 Judges, of this
Court in the case of T.M.A. Pai Foundation , in unequivocal terms,
holds that in view of Article 19(1)(g) and Article 26 of the
Constitution of India, all citizens and religious denominations are
conferred with a right to establish and maintain educational
institutions. The Constitution Bench in Islamic Academy of
Education holds that the State would be entitled to impose
restrictions and make regulations both in terms of Article 19(1)(g)
and Article 30 of the Constitution of India for maintaining
excellence in the standard of education. It has been held that
regulatory measures are necessary for ensuring orderly, efficient
and sound administration. The Constitution Bench, consisting of
Seven Judges, of this Court in P.A. Inamdar has again reiterated
that the right to impart education is a fundamental right under
Article 19(1)(g) and, therefore, subject to control by clause (6) of
Article 19. It has been held that such a right is subject to the
laws imposing reasonable restrictions in the interest of the general
public. It has further been held that the laws may be enacted for
prescribing the professional or technical qualifications necessary
for practising any profession or carrying on any occupation, trade
or business. The laws could also be enacted for the purposes of
the carrying on by the State, or by a corporation owned or
controlled by the State of any trade, business, industry or service
whether to the exclusion, complete or partial of citizens or
otherwise. In the case of Modern Dental College and Research
Centre, the Constitution Bench, consisting of Five Judges, of this
Court held that though private unaided minority and non-minority
institutions have a right to establish educational institutions, in
order to balance the public interest, the State is also empowered
to frame Regulations in the interest of general public. This Court
held that, while considering the scope of reasonable restrictions
which are sought to be brought in, in the interest of the general
public, the exercise that is required to be undertaken is the
balancing of the fundamental rights to carry on a trade or
occupation on one hand and the restrictions so imposed on the
other hand. This Court held that it was necessary to find out as to
whether the restrictions so imposed were proportional or not. It
is thus clear that though there is a fundamental right to establish
educational institutions, the same can be subject to reasonable
PHARMACY COUNCIL OF INDIA v. RAJEEV COLLEGE OF
PHARMACY AND ORS.
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restrictions, which are found necessary in the general public
interest. However, the question that requires to be answered is
as to whether the same can be done by executive instructions or
not. [Paras 35, 37, 39-41][77-G-H; 78-E-F; 79-C-H]
T.M.A. Pai Foundation and Others v. State of Karnataka
and Others (2002) 8 SCC 481 : [2002] 3 Suppl. SCR
587; Islamic Academy of Education and another v. State
of Karnataka (2003) 6 SCC 697 : [2003] 2 Suppl. SCR
474; P.A. Inamdar and Others v. State of Maharashtra
and Others (2005) 6 SCC 537 : [2005] 2 Suppl. SCR
603; Modern Dental College and Research Centre and
others v. State of Madhya Pradesh and Others (2016)
7 SCC 353 : [2016] 3 SCR 579 - followed.
1.4 The Constitution Bench, consisting of five Judges, of
this Court in the case of State of M.P. vs. Thakur Bharat Singh
holds that the State or its officers cannot exercise its executive
authority to infringe the rights of the citizens merely because the
Legislature of the State has the power to legislate in regard to
the subject on which the executive order is issued. It could thus
be seen that the Constitution Bench holds that even an Executive
cannot do something to infringe the rights of the citizens by an
executive action, though the State Legislature has legislative
competence to legislate on the subject. [Paras 47, 48][81-C-D]
State of M.P. v. Thakur Bharat Singh (1967) 2 SCR
454 - followed.
Shrimati Hira Devi and Others v. District Board,
Shahjahanpur (1952) SCR 1122 - relied on.
1.5 Since this Court has held that the right to establish an
educational institution is a fundamental right under Article 19(1)(g)
of the Constitution of India and reasonable restrictions on such a
right can be imposed only by a law and not by an execution
instruction, the Division Bench of the Bombay High Court,
Aurangabad Bench, in Sayali Charitable Trust's College of
Pharmacy case does not lay down the correct position of law. The
view taken by the High Courts of Karnataka, Delhi and
Chhattisgarh lays down the correct position of law. Since this
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Court has held that the Resolutions/communications dated 17th
July 2019 and 9th September 2019 of the Central Council of the
appellant-PCI, which are in the nature of executive instructions,
could not impose restrictions on the fundamental right to establish
educational institutions under Article 19(1)(g) of the Constitution
of India, it is not found necessary to consider the submissions
advanced on other issues. The Resolutions/communications dated
17th July 2019 and 9th September 2019 of the Central Council of
the appellant-PCI are liable to be struck down on this short
ground. [Paras 54, 55][84-A-D]
Sayali Charitable Trust's College of Pharmacy v. The
Pharmacy Council of India Judgment dtd.06.11.2020
of the Bombay High Court, Aurangabad Bench - held
not correct law.
1.6 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. 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. This Court,
therefore, refrains from considering the rival submissions made
on that behalf. The applications seeking approval for D. Pharm
and B. Pharm courses are required to be accompanied by a "No
Objection Certificate" ("NOC") from the State Government and
consent of affiliation from the affiliating bodies. While scrutinizing
such applications, the Council can always take into consideration
various factors before deciding to allow or reject such applications.
Merely because an institution has a right to establish an
educational institution does not mean that such an application
has to be allowed. In a particular area, if there are more than
sufficient number of institutions already existing, the Central
Council can always take into consideration as to whether it is
necessary or not to increase the number of institutions in such
an area. However, a blanket prohibition on the establishment of
pharmacy colleges cannot be imposed by an executive resolution.
[Paras 56, 57][84-E-H]
PHARMACY COUNCIL OF INDIA v. RAJEEV COLLEGE OF
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1.7 In the result, the appeals filed by the Pharmacy Council
of India are dismissed. The writ petitions filed by the institutions
shall stand disposed of in terms of the above. [Paras 58, 59][85B]
2. CIVIL APPEAL ARISING OUT OF SPECIAL LEAVE
PETITION (CIVIL) NO.1887 OF 2022 [SHAHEED TEG
BAHADUR COLLEGE OF PHARMACY VS. PHARMACY
COUNCIL OF INDIA]
In view of the judgment passed by this Court today in Civil
Appeal arising out of Special Leave Petition (Civil) No.19671 of
2021 and connected matters, this appeal has been rendered
infructuous and is disposed of as such. [Para 62][85-E]
Jawaharlal Nehru Technological University Registrar
v. Sangam Laxmi Bai Vidyapeet and Others (2019) 17
SCC 729 : [2018] 14 SCR 103; Jigya Yadav (Minor)
(Through Guardian/Father Hari Singh) v. Central Board
of Secondary Education and others (2021) 7 SCC 535
: 2021 (6 ) JT 177 - distinguished.
Star India Private Limited v. Department of Industrial
Policy and Promotion and Others (2019) 2 SCC 104 :
[2018] 14 SCR 128 - held inapplicable.
State of Bihar and Others v. Project Uchcha Vidya,
Sikshak Sangh and Others (2006) 2 SCC 545 : [2006]
1 SCR 14; V. T. Khanzode and Others v. Reserve Bank
of India and Another (1982) 2 SCC 7 : [1982] 3 SCR
411 - relied on.
Madhya Bharat Cotton Association Ltd. v. Union of
India and Another AIR 1954 SC 634; Modern School
vs. Union of India and Others (2004) 5 SCC 583 :
[2004] 1 Suppl. SCR 668; Padubidri Damodar Shenoy
v. Indian Airlines Limited and Another (2009) 10 SCC
514 : [2009] 14 SCR 356; Vijay S. Sathaye v. Indian
Airlines Limited and Others (2013) 10 SCC 253 : [2013]
10 SCR 73; Index Medical College, Hospital and
Research Centre v. State of Madhya Pradesh and Others
2021 SCC OnLine SC 318 - referred to.
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Case Law Reference
[2018] 14 SCR 128
held inapplicable
Para 9
[2018] 14 SCR 103
distinguished
Para 11
[2002] 3 Suppl. SCR 587
followed
Para 13
[2003] 2 Suppl. SCR 474
followed
Para 13
[2005] 2 Suppl. SCR 603
followed
Para 13
[1982] 3 SCR 411
relied on
Para 20
[2004] 1 Suppl. SCR 668
referred to
Para 21
[2009] 14 SCR 356
referred to
Para 22
[2013] 10 SCR 73
referred to
Para 22
[2016] 3 SCR 579
followed
Para 26
[2006] 1 SCR 14
relied on
Para 42
CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal
No. 6681 of 2022.
From the Judgment and Orders dated 09.11.2021 of the High Court
of Karnataka at Bengaluru in WA No.746 of 2020.
With
Civil Appeal Nos. 6682-6683 of 2022, Writ Petition (Civil) Nos.
564, 565 of 2022, Civil Appeal Nos. 6684-6685, 6686, 6687, 6688, 6690,
6689 of 2022, Writ Petition (Civil) No. 406 of 2022, Civil Appeal No.
6691 of 2022, Writ Petition (Civil) No. 563 of 2022.
Maninder Singh, Vinay Navare, S.N. Bhat, Rakesh Dwivedi, Sr.
Advs., Gaurav Sharma, Kirtiman Singh, Waize Ali Noor, Ms. Manmeet
Kaur Sareen, Dhawal Mohan, Prateek Bhatia, Ms. Srirupa Nag, Prabhas
Bajaj, Mrigank Prabhakar, Zoheb Hossain, Pai Amit, Ashwin Kumar D.
S., Rajesh Inamdar, Omkar Kambi, Ms. Pankhuri Bhardwaj, Suraj Naik,
Abhiyudaya Vats, Rohit R. Saboo, Samrat Krishnarao Shinde, Siddharth
R Gupta, Ms. Sakshi Banga, Mrigank Prabhakar, Ms. Priyanka Singh,
R.K. Ruhil, Anil Kumar, Shubhranshu Padhi, Vishal Banshal,
Ms. Rajeshwari Shankar, Niroop Sukrithy, Sanjay Sharawat, Divyank
Rana, Akash Sahraya, D. P.Chaturvedi, Tarun Kumar Thakur, Ms. Parvati
Bhat, Ms. Anuradha Mutatkar, Shivam Singh, Ravi Kant, Mayank Manish,
PHARMACY COUNCIL OF INDIA v. RAJEEV COLLEGE OF
PHARMACY AND ORS.
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Chandrashekhar Singh, Vivek Singh, C. P. Rajwar, Abhishek Chaterjee,
Chandra Prakash, Abhinav Singh, Ms. Suman Rani, Amitesh Kumar,
Ms. Binisa Mohanty, Ms. Priti Kumari, Arya Tripathy, Mritunjay Kumar
Sinha, Kunal Chatterji, Ms. Maitrayee Banerjee, Rohit Bansal, Kamlesh
Kumar Maurya Kaushal Yadav, Nandlal Kumar Mishra, Shafik Ahmed,
Deepak Kumar, Zeeshan Anjum, Gourave Kumar Agarwal, Rana Pratap,
Parmanand Gaur, Ms. Beena S. Patnaik, Hitesh Kumar Sharma,
Akhileshwar Jha, A. K. Sharma, Sahil Amarnath, Vikrant Y.S. Narula,
Ayush Mittal, Ajay Kumar, Prakash Ranjan Nayak, Robin Khokhar, V.
N. Raghupathy, Dr. Monika Gusain, Ms. Anuradha Mutatkar, Gautam
Narayan, Kaushal Yadav, Gourave Kumar Agarwal, Parmanand Gaur,
Chandra Prakash, Mritunjay Kumar Sinha, Kunal Chatterji, Advs. for
the appearing parties.
The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. Leave granted in all the Special Leave Petitions.
2. The appeals filed by the Pharmacy Council of India (hereinafter
referred to as "PCI") mainly challenge the (i) judgments dated
9th November 2021, passed by the Division Bench of the High Court of
Karnataka at Bengaluru in Writ Appeal No. 746-748 of 2020; (ii) judgment
dated 7th March 2022, passed by the learned Single Judge of the High
Court of Delhi at New Delhi in Writ Petition (Civil) No.175 of 2021; and
(iii) judgment dated 22nd April 2022, passed by the learned Single Judge
of the High Court of Chhattisgarh at Bilaspur in Writ Petition (Civil)
No.3766 of 2021. Several interim orders passed by these Courts during
the pendency of these matters are also subject to challenge in some of
the appeals. They are also being disposed of by the present judgment.
3. By the said judgments and orders, the aforesaid three High
Courts of Karnataka, Delhi and Chhattisgarh had allowed the writ petitions
filed by the respondents-institutions, which were, in turn, filed challenging
the Resolutions/communications of the appellant-PCI dated 17th July
2019 and 9th September 2019 and dismissed the Writ Appeals filed by
the PCI. Vide Resolution/Communication dated 17th July 2019, the
appellant-PCI had resolved to put a moratorium on the opening of new
pharmacy colleges for running Diploma as well as Degree courses in
pharmacy for a period of five years beginning from the Academic Year
2020-2021. Vide Resolution/communication dated 9th September 2019,
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the aforesaid moratorium was modified, thereby exempting its application
to (i) Government Institutions; (ii) Institutions in North Eastern region;
and (iii) States/Union Territories where the number of institutions offering
D. Pharm and B. Pharm courses (both combined) is less than 50.
Additionally, vide the said Resolution/communication dated 9th September
2019, the institutions which had applied for opening colleges offering
D.Pharm and/or B. Pharm courses for 2019-2020 academic session
were allowed to apply for conducting diploma as well as degree courses
in Academic Session 2020-2021 and existing approved pharmacy
institutions were allowed to increase the intake capacity as per PCI
norms and/or to start additional pharmacy course(s).
4. The writ petitions filed by the Institutions before the three High
Courts challenged the validity of the said moratorium and also prayed
for a direction to be issued to the appellant-PCI to grant approval for
opening new pharmacy institutions imparting pharmacy courses for the
ensuing academic year of 2022-2023 on the basis of inspection conducted
by the PCI in February 2020 and to not insist on fresh applications from
the institutions pursuant to the PCI's circular of 3rd July 2022, which was
issued in compliance of the interim order of this Court dated 31st May
2022 passed in Special Leave Petition (Civil) No.4862 of 2022.
5. We have heard Shri Maninder Singh, learned Senior Counsel
appearing on behalf of the appellant-PCI and Shri Rakesh Dwivedi and
Shri Vinay Navare, learned Senior Counsel, Shri Amit Pai, Shri Sanjay
Sharawat, Shri Siddharth R. Gupta, and Shri Shivam Singh, learned
counsel appearing on behalf of their respective respondent(s).
6. Shri Maninder Singh, learned Senior Counsel would submit that
the High Courts have totally erred in interfering with the Resolution
dated 17th July 2019 passed by the appellant-PCI. He submits that the
perusal of the preamble of the Pharmacy Act, 1948 (hereinafter referred
to as "the said Act") read with Sections 3, 10 and 12 thereof would
clearly reveal that the appellant-PCI has a power to regulate in the field
of pharmacy education. He submits that the power to regulate would
also include a power to put a moratorium for a certain period. The learned
Senior Counsel submits that perusal of Section 3 of the said Act would
reveal that the Central Council of the PCI consists of experts from various
fields including teachers in the subject concerning pharmacy, elected by
the University Grants Commission ("UGC" for short), persons possessing
a degree or diploma in and practicing pharmacy or pharmaceutical
PHARMACY COUNCIL OF INDIA v. RAJEEV COLLEGE OF
PHARMACY AND ORS. [B. R. GAVAI, J.]
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chemistry, nominated by the Central Government; a representative of
the Medical Council of India; representatives of States elected from the
members of the State Council, so also a member to represent each State
nominated by the State Government, who shall be a registered
pharmacist. He, therefore, submits that the Body, which consists of so
many experts from various fields, is a Body which is competent to take
decisions in the best interests of the pharmacy education.
7. Shri Maninder Singh, learned Senior Counsel submits that the
decision was taken by the appellant-PCI after a sub-committee of experts
was appointed to study the issue. It is submitted that after the subcommittee recommended moratorium in view of mushrooming growth
of pharmacy colleges, the Central Council of the appellant-PCI, after
taking into consideration all these aspects, recommended a moratorium.
He submits that this was done in order to prevent a situation which
would lead to uncontrolled growth of pharmacy colleges, resultantly
producing many pharmacists, who will be without any employment. It is
submitted that these factors have not been taken into consideration by
the High Courts in the impugned judgments.
8. Shri Maninder Singh further submitted that the perusal of the
Communication of the Government of India, Ministry of Health & Family
Welfare dated 22nd April 2022 would reveal that the Central Government
was consulted as required under Section 10 of the said Act.
9. Shri Maninder Singh further submitted that the power to regulate
would also include a power to prohibit. He relies on the judgments of
this Court in the case of Madhya Bharat Cotton Association Ltd. vs.
Union of India and another1 and in the case of Star India Private
Limited vs. Department of Industrial Policy and Promotion and
others2 in this regard.
10.Shri Maninder Singh would further submit that a Division Bench
of the Bombay High Court, Aurangabad Bench, in a batch of writ petitions
being Writ Petition No. 4919 of 2020 (Sayali Charitable Trust's College
of Pharmacy vs. The Pharmacy Council of India, decided on 6th
November 2020) along with connected matters has upheld the
moratorium. He submits that, however, the said judgment of the Bombay
High Court has not been considered by all the three High Courts of
Karnataka, Delhi and Chhattisgarh.
1 AIR 1954 SC 634
2 (2019) 2 SCC 104
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11. Shri Maninder Singh submits that, having regard to the scheme
of the said Act and the purpose sought to be achieved therein, it will
have to be held that it is not only the jurisdiction of the PCI, but its duty
and responsibility to impose a moratorium so as to prevent mushrooming
growth of pharmacy colleges in the country. Learned Senior Counsel
further submits that the power to impose such regulations has been upheld
by this Court in the case of Jawaharlal Nehru Technological
University Registrar vs. Sangam Laxmi Bai Vidyapeet and others3.
He submits that the facts in the present case and the facts in the case of
Jawaharlal Nehru Technological University Registrar (supra) are
totally identical. It is, therefore, submitted that the view taken by all the
three High Courts is liable to be set aside and it is required to be held that
the moratorium imposed, being in the larger public interest, is legal and
valid.
12. Shri Maninder Singh relies on the judgment of this Court in the
case of Jigya Yadav (Minor) (Through Guardian/Father Hari Singh)
vs. Central Board of Secondary Education and others4 in support of
his submission that the moratorium could also be imposed by a resolution
of the appellant-PCI and it would be a law as per Article 13 of the
Constitution of India.
13. Per contra, Shri Rakesh Dwivedi, learned Senior Counsel,
submitted that it is the fundamental right of the respondent - Institutions
to establish educational institutions under Article 19(1)(g) of the
Constitution of India. He relies on the judgments of this Court in the
cases of T.M.A. Pai Foundation and others vs. State of Karnataka
and others5, Islamic Academy of Education and another vs. State of
Karnataka and others6, and P.A. Inamdar and others vs. State of
Maharashtra and others7 in that regard.
14. Shri Rakesh Dwivedi submits that there is no doubt that
reasonable restrictions could be imposed on the fundamental rights.
However, the burden lies on the State to establish that the restrictions so
imposed are reasonable and have a nexus with the object to be achieved.
He submits that the appellant-PCI has totally failed to discharge the said
3 (2019) 17 SCC 729
4 (2021) 7 SCC 535
5 (2002) 8 SCC 481 [Para 18 to 25]
6 (2003) 6 SCC 697 [Para 120]
7 (2005) 6 SCC 537 [Para 92]
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burden. It is submitted that the restriction, which is in the nature of absolute
prohibition, is totally unreasonable, arbitrary and discriminatory. It is
submitted that it has no nexus with the object to be achieved.
15. Shri Rakesh Dwivedi further submits that the impugned
communications of the appellant-PCI are arbitrary. To buttress his
submission that the impugned communications of the appellant-PCI are
arbitrary, Shri Rakesh Dwivedi submitted that the appellant-PCI itself
has exempted Government Colleges from the moratorium imposed, which
has in effect added about 34000 seats in the field of pharmacy. He
further submits that the impugned communication exempts the North
Eastern region from its operation. As such, the power has been exercised
in a manifestly arbitrary manner. It is submitted that the only justification
given is that if there is no moratorium, it will lead to unemployment. He
submits that if such a ground is to be accepted, then all the colleges
imparting education in different areas like Medicine, Law, Engineering,
Technology, etc. will have to be banned.
16. Shri Rakesh Dwivedi further submitted that, unless the power
to ban is specifically provided in the statute, such a power cannot be
exercised. In any case, he submitted that if such a power was to be
exercised, the same could have been exercised only by framing a
Regulation in accordance with Section 10 of the said Act. He further
submitted that for such a Regulation to be valid, the following four factors
are required to be complied with:
(i)
The copies of the draft Regulations should be furnished by
the Central Council to all the State Governments and before
the Central Council submits the Education Regulations to the
Central Government for approval, the comments of the State
Governments are to be invited and considered;
(ii) That such Regulations must have approval of the Central
Government;
(iii) In view of Section 10(4), such Regulations will have to be
published in the Official Gazette;
(iv) In view of sub-section (4) of Section 18 of the said Act, such
Regulations have to be laid before each House of Parliament.
17. Shri Vinay Navare, learned Senior Counsel submitted that the
perusal of Section 3 of the said Act would reveal that the Central Council
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of the appellant-PCI consists essentially of persons who are connected
with the practice of Pharmacy. He submits that the moratorium is imposed
with a mala fide intention by those persons who are already connected
with the profession of Pharmacy so as to create a monopoly in the field.
He submits that if the composition of the Central Council of the appellantPCI under the said Act is compared with the composition of the Council
under the All India Council for Technical Education Act, 1987 (hereinafter
referred to as "AICTE Act"), it would reveal that the Council under the
AICTE Act has a wider spectrum. It also consists of the persons not
connected with Technical Education.
18. Shri Navare further submitted that the powers under Section
10 of the AICTE Act are much wider than the powers of the Central
Council under Section 10 of the said Act.
19. Shri Navare further submitted that the Resolution which is
sent to the State Government is only for the purpose of intimation and,
therefore, there is no sufficient compliance of requirement under Section
10(3) of the said Act.
20. Relying on the judgment of this Court in the case of V.T.
Khanzode and others vs. Reserve Bank of India and another8, Shri
Navare submits that since the appellant-PCI is a statutory body, its powers
would be circumscribed by the statutory provisions. He submitted that
since the power to impose prohibition is not provided under the said Act,
such an exercise is wholly impermissible in law.
21. He further submits that there can be no restrictions on
fundamental rights except by a valid law enacted by the legislature. In
this respect, he relies on the judgment of this Court in the case of Modern
School vs. Union of India and others9.
22. Shri Navare further submits that the words used in sub-section
(1) of Section 10 of the said Act are "subject to the approval of the
Central Government". He, therefore, submits that unless there is an
approval of the Central Government with regard to the moratorium, the
same would not be valid in law. He relies on the judgments of this Court
in the cases of Padubidri Damodar Shenoy vs. Indian Airlines
8 (1982) 2 SCC 7
9 (2004) 5 SCC 583
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Limited and another10, and Vijay S. Sathaye vs. Indian Airlines
Limited and others11 in support of this proposition.
23. Shri Amit Pai, learned counsel also submitted that the impugned
communications are totally beyond the powers of the appellant-PCI and,
as such, no interference is warranted with the impugned judgments and
orders of the High Courts.
24. Shri Sanjay Sharawat, learned counsel submitted that the
decision to impose moratorium has been taken by the appellant-PCI
without conducting any survey. No material is placed on record in support
of its decision. He submits that the decision to impose moratorium is
wholly arbitrary. He further submits that the appellant-PCI has acted in
an arbitrary manner. On one hand, it has imposed ban and on the other
hand it has granted permission to about 2500 institutions to start pharmacy
courses. As such, it has acted in a totally arbitrary and discriminatory
manner.
25. Shri Siddharth Gupta, learned counsel, submitted that the
impugned communications are totally discriminatory in nature and tend
to create a monopoly in respect of the existing colleges inasmuch as
they have been permitted to expand the number of existing seats. He
further submits that the cap of 50 colleges imposed for all the States is
totally arbitrary. He submits that the cap for a highly populated State like
Uttar Pradesh and for a small State like Goa is the same. He submits
that in the State of Chhattisgarh, 7 colleges have been granted permission
on the ground that they were in the pipeline. As such, there is no
consistency in the policy of the appellant-PCI. He relies on the judgments
of this Court in the case of Index Medical College, Hospital and
Research Centre vs. State of Madhya Pradesh and others12 in support
of his submission.
26. Relying on the judgment of this Court in the case of Modern
Dental College and Research Centre and others vs. State of Madhya
Pradesh and others13, he submits that unless the impugned restriction
satisfies the test of proportionality of restrictions, the same would not be
tenable in law. He submits that it will be necessary to find out as to
10 (2009) 10 SCC 514
11 (2013) 10 SCC 253
12 2021 SCC OnLine SC 318
13 (2016) 7 SCC 353
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whether the limitation on constitutional rights is for a purpose which is
reasonable and necessary in a democratic society. He submits that
applying the said test, the impugned communication which imposed a
total ban for a period of five years does not stand the proportionality
test.
27. Shri Shivam Singh, learned counsel submitted that the decisionmaking process is totally vitiated. He submits that taking into consideration
the pandemic situation, the Authorities ought to have considered that
there is a need to have a larger number of Pharmacy colleges. However,
this aspect has been totally ignored by the appellant-PCI.
28. All the three High Courts, i.e., Karnataka, Delhi and
Chhattisgarh, while allowing the writ petitions filed by the respondentinstitutions and quashing and setting aside the Resolutions/
communications of the Central Council of the appellant-PCI, have, in a
nutshell, held thus:
(i)
That the right to establish educational institutions is a
fundamental right guaranteed under Article 19(1)(g) of the
Constitution of India;
(ii)
That there can be reasonable restrictions on such a right.
However, such a restriction can be imposed only by law
enacted by the competent legislature;
(iii) The Resolution/communication dated 17th July 2019, vide
which the moratorium was imposed is an executive instruction
and could not be construed as a law and, therefore, the
moratorium imposed by an executive instruction is not
sustainable in law.
29. Apart from that, the learned Single Judge of the Karnataka
High Court has further found that the petitioners before the High Court
were entitled to establish colleges on the principles of promissory estoppel
and legitimate expectation. The learned Single Judge of the Karnataka
High Court as well as the learned Single Judge of the Delhi High Court
have also held that the Resolution of the appellant-PCI was violative of
Article 14 of the Constitution of India inasmuch as the government
institutions and the institutions in the North Eastern region were exempted
from the applicability of the moratorium. It was found that such an act
was discriminatory. It was further found that the cap of 50 Pharma
institutes per State was also arbitrary inasmuch as the appellant-PCI
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does not take into consideration the fact that the population of the States
varies from State to State and, as such, there could not have been a
uniform formula of capping 50 pharmacy institutes for every State.
30. Undisputedly, the Central Council of the appellant-PCI vide
its Resolution/communication dated 17th July 2019 has resolved as under:
"RESOLUTION
Taking into consideration the availability of sufficient qualified
pharmacist workforce, the House unanimously resolved to put a
moratorium on the opening of new pharmacy colleges for running
Diploma as well as Degree course in pharmacy for a period of
five years beginning from the academic year 2020-2021. This
moratorium shall not be applicable in the North Eastern region of
the country where there is a shortage of pharmacy colleges."
31. It can thus be seen that vide the said Resolution, the Central
Council resolved to put a moratorium on the opening of new pharmacy
colleges for running Diploma as well as Degree course in pharmacy for
a period of five years beginning from the academic year 2020-2021.
The said Resolution dated 17th July 2019 was modified in the 107th meeting
of the Central Council of the appellant-PCI held on 5th and 6th August
2019. The relevant part of the modified Resolution reads thus:
"1252.4
In view of it, it was unanimously decided that
moratorium on the opening of new pharmacy
colleges for running Diploma as well as Degree
course in pharmacy for a period of five years
beginning from the academic year 2020-2021 will
be subject to following conditionsa)
The moratorium will not apply to the
Government institutions.
b)
The moratorium will not apply to the institutions
in North Eastern region.
c)
The moratorium will not apply to the States/
Union Territories where the number of D.
Pharm and B. Pharm institutions (both
combined) is less than 50.
d)
The institutions which had applied for opening
D. Pharm and/or B. Pharm colleges for 2019-
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20 academic session either to the PCI or to
the AICTE and the proposal was rejected or
not inspected due to some reason or the other
will be allowed to apply for 2020-21 academic
session and this relaxations is given only for
one year i.e. for 2020-21 academic session
only.
e)
Existing approved pharmacy institutions will
be allowed to apply for increase in intake
capacity as per PCI norms and/or to start
additional pharmacy course(s)."
32. It is thus clear, and in all fairness, not even disputed by the
appellant-PCI, that the moratorium was issued by the Central Council of
the appellant-PCI in its executive powers and not by framing any
regulation, as provided under Sections 10 and 18 of the said Act.
33. The moot question, therefore, that requires consideration, is
as to whether the moratorium, as imposed by the Central Council of the
appellant-PCI, could have been imposed by the said Resolution, which is
in the nature of an executive instruction of the Central Council.
34. It will be relevant to refer to the following observations of the
Constitution Bench, consisting of 11 Judges, of this Court in the case of
T.M.A. Pai Foundation (supra):
"18. With regard to the establishment of educational institutions,
three articles of the Constitution come into play. Article 19(1)(g)
gives the right to all the citizens to practise any profession or to
carry on any occupation, trade or business; this right is subject to
restrictions that may be placed under Article 19(6). Article 26
gives the right to every religious denomination to establish and
maintain an institution for religious purposes, which would include
an educational institution. Article 19(1)(g) and Article 26, therefore,
confer rights on all citizens and religious denominations to establish
and maintain educational institutions...."
35. It could thus clearly be seen that the Constitution Bench of
this Court in the aforesaid case, in unequivocal terms, holds that in view
of Article 19(1)(g) and Article 26 of the Constitution of India, all citizens
and religious denominations are conferred with a right to establish and
maintain educational institutions.
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36. Another Constitution Bench, consisting of five Judges, of this
Court in the case of Islamic Academy of Education (supra) has held
thus:
"120. So far as institutions imparting professional education are
concerned, having regard to the public interest, they are bound to
maintain excellence in the standard of education. To that extent,
there cannot be any compromise and the State would be entitled
to impose restrictions and make regulations both in terms of Article
19(1)(g) and Article 30 of the Constitution of India. The width of
the rights and limitations thereof of unaided institutions whether
run by a majority or a minority must conform to the maintenance
of excellence. With a view to achieve the said goal, indisputably,
the regulations can be made by the State.
121. The right to administer does not amount to the right to
maladminister and the right is not free from regulation. The
regulatory measures are necessary for ensuring orderly, efficient
and sound administration. The regulatory measures can be laid
down by the State in the administration of minority institutions."
37. It could thus be seen that the Constitution Bench in Islamic
Academy of Education (supra) holds that the State would be entitled
to impose restrictions and make regulations both in terms of Article
19(1)(g) and Article 30 of the Constitution of India for maintaining
excellence in the standard of education.