# THE PHARMACY COUNCIL OF INDIA v. DR. S.K. TOSHNIWAL EDUCATIONAL TRUSTS VIDARBHA INSTITUTE OF PHARMACY AND ORS. ETC

- **Citation:** [2020] 5 S.C.R. 718
- **Court:** Supreme Court of India
- **Decided:** 2020-03-05
- **Bench:** Arun Mishra, Vineet Saran, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-pharmacy-council-of-india-v-dr-s-k-toshniwal-educational-trusts-vidarbha-34566
- **Pages:** 37

## Headnote

Pharmacy Act, 1948 - All India Council of Technical Education
Act, 1987 - Applicability of the Pharmacy Act, 1948 or the AICTE
Act, 1987 in relation to subject of pharmacy including the approval
of courses of study, minimum standards of education required for
qualification as a pharmacist, registration as a pharmacist, regulation
of future professional conduct etc. - Held: The Pharmacy Act is a
special Act in the field of pharmacy and it is a complete code in
itself in the field of pharmacy, the pharmacy Act shall prevail over
the AICTE Act which is a general statute dealing with technical
education/ institutions - In the AICTE Act there is no specific repeal
of the pharmacy Act, more particularly when the Pharmacy Act is a
special Act and the subsequent enactment of AICTE Act is general
and therefore the Pharmacy Act being a special Act must prevail -
Consequently, so far as recognition of degrees and diplomas of
pharmacy education is concerned, the Pharmacy Act shall prevail.
Pharmacy Act, 1948 - All India Council of Technical Education
Act, 1987 - In the field of pharmacy, PCI would have the jurisdiction
or AICTE constituted under the AICTE Act - Held: PCI consists of
experts in the field of pharmacy and related subjects connected with
the education of pharmacy - On the other hand, so far as AICTE is
concerned, only one member would be from the field of pharmacy
and that too representative of PCI - Under the circumstances, the
PCI is the body of experts connected with the subject of pharmacy
and related subjects and therefore it will be in the larger interest
and more particularly in the interest of education of pharmacy that
PCI shall alone have the jurisdiction in the field of Pharmacy rather
than AICTE - Further, both PCI and AICTE are the creature of the
statute - The fight of supremacy between both regulators is unhealthy
for the education sector as well as the institutions to permit two
[2020] 5 S.C.R. 718
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regulators to function in the same field - Therefore, when the PCI is
consisting of the experts in the field of pharmacy and other related
subjects, it is in the larger interest in the field of Pharmacy that the
PCI must be given the power to regulate in the field of pharmacy.
Disposing of the matters, the Court
HELD: Whether the mandate of the PCI or that of the
AICTE would prevail on the question of granting approval and
related matters to any institution for conducting pharmacy
education course, if there is any conflict/contradictions in the
opinions of these two bodies.
1. As per the Preamble of the Pharmacy Act, 1948, the
Pharmacy Act has been enacted to make better provision for the
regulation of the profession and practice of Pharmacy and for that
purpose to constitute Pharmacy Councils. If this Court considers
the relevant provisions of the Pharmacy Act, it covers all areas
inclusive of approval of courses, laying down course content,
eligibility conditions for students as well as teachers, evaluation
of standards of examination, grant of registration, entry of higher
qualification, taking action for any infamous conduct etc. The
relevant provisions in the Pharmacy Act are Sections 10, 12, 13,
16, 29, 32, 35, 36 and 42. [Paras 12 & 13][732-C-D; 740-B-C]
2. In exercise of powers vested in the Pharmacy Act, PCI
has framed a number of Regulations for prescribing minimum
standards of education as well as regulating the subject of
pharmacy in India, including:
a. Education Regulations, 1991;
b. Pharm. D Regulations, 2008;
c. Minimum Qualifications for Teachers in Pharmacy
Institutions Regulations, 2014;
d. Bachelor of Pharmacy (B.Pharm) Course Regulations,
2014;
e. Master of Pharmacy (M.Pharm) Course Regulations,
2014;
PHARMACY COUNCIL OF INDIA v. DR. S.K. TOSHNIWAL EDUCATIONAL
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f. Bachelor of Pharmacy (Practice) Regulations, 2014;
g. Pharmacy Practice Regulations, 2015.
 Thus, considering the vario

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THE PHARMACY COUNCIL OF INDIA
v.
DR. S.K. TOSHNIWAL EDUCATIONAL TRUSTS VIDARBHA
INSTITUTE OF PHARMACY AND ORS. ETC.
(Transferred Case (Civil) Nos. 213-227 of 2020)
MARCH 05, 2020
[ARUN MISHRA, VINEET SARAN AND M. R. SHAH, JJ.]
Pharmacy Act, 1948 - All India Council of Technical Education
Act, 1987 - Applicability of the Pharmacy Act, 1948 or the AICTE
Act, 1987 in relation to subject of pharmacy including the approval
of courses of study, minimum standards of education required for
qualification as a pharmacist, registration as a pharmacist, regulation
of future professional conduct etc. - Held: The Pharmacy Act is a
special Act in the field of pharmacy and it is a complete code in
itself in the field of pharmacy, the pharmacy Act shall prevail over
the AICTE Act which is a general statute dealing with technical
education/ institutions - In the AICTE Act there is no specific repeal
of the pharmacy Act, more particularly when the Pharmacy Act is a
special Act and the subsequent enactment of AICTE Act is general
and therefore the Pharmacy Act being a special Act must prevail -
Consequently, so far as recognition of degrees and diplomas of
pharmacy education is concerned, the Pharmacy Act shall prevail.
Pharmacy Act, 1948 - All India Council of Technical Education
Act, 1987 - In the field of pharmacy, PCI would have the jurisdiction
or AICTE constituted under the AICTE Act - Held: PCI consists of
experts in the field of pharmacy and related subjects connected with
the education of pharmacy - On the other hand, so far as AICTE is
concerned, only one member would be from the field of pharmacy
and that too representative of PCI - Under the circumstances, the
PCI is the body of experts connected with the subject of pharmacy
and related subjects and therefore it will be in the larger interest
and more particularly in the interest of education of pharmacy that
PCI shall alone have the jurisdiction in the field of Pharmacy rather
than AICTE - Further, both PCI and AICTE are the creature of the
statute - The fight of supremacy between both regulators is unhealthy
for the education sector as well as the institutions to permit two
[2020] 5 S.C.R. 718
718
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regulators to function in the same field - Therefore, when the PCI is
consisting of the experts in the field of pharmacy and other related
subjects, it is in the larger interest in the field of Pharmacy that the
PCI must be given the power to regulate in the field of pharmacy.
Disposing of the matters, the Court
HELD: Whether the mandate of the PCI or that of the
AICTE would prevail on the question of granting approval and
related matters to any institution for conducting pharmacy
education course, if there is any conflict/contradictions in the
opinions of these two bodies.
1. As per the Preamble of the Pharmacy Act, 1948, the
Pharmacy Act has been enacted to make better provision for the
regulation of the profession and practice of Pharmacy and for that
purpose to constitute Pharmacy Councils. If this Court considers
the relevant provisions of the Pharmacy Act, it covers all areas
inclusive of approval of courses, laying down course content,
eligibility conditions for students as well as teachers, evaluation
of standards of examination, grant of registration, entry of higher
qualification, taking action for any infamous conduct etc. The
relevant provisions in the Pharmacy Act are Sections 10, 12, 13,
16, 29, 32, 35, 36 and 42. [Paras 12 & 13][732-C-D; 740-B-C]
2. In exercise of powers vested in the Pharmacy Act, PCI
has framed a number of Regulations for prescribing minimum
standards of education as well as regulating the subject of
pharmacy in India, including:
a. Education Regulations, 1991;
b. Pharm. D Regulations, 2008;
c. Minimum Qualifications for Teachers in Pharmacy
Institutions Regulations, 2014;
d. Bachelor of Pharmacy (B.Pharm) Course Regulations,
2014;
e. Master of Pharmacy (M.Pharm) Course Regulations,
2014;
PHARMACY COUNCIL OF INDIA v. DR. S.K. TOSHNIWAL EDUCATIONAL
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f. Bachelor of Pharmacy (Practice) Regulations, 2014;
g. Pharmacy Practice Regulations, 2015.
 Thus, considering the various provisions of the Pharmacy
Act and the regulations made therein, it can be said that the
Pharmacy Act is a complete Code in itself in the subject of
pharmacy. The PCI has been constituted as a body empowered to
regulate the education and profession of pharmacy in India. It
cannot be disputed that the subject of pharmacy is a special and
not a general subject. From the relevant provisions of the
Pharmacy Act, more particularly, the provisions referred to
hereinabove, the Pharmacy Act exclusively covers all areas
inclusive of approval of courses, laying down course content,
eligibility conditions for students as well as teachers, evaluation
standards of examination, grant of registration, entry of higher
qualifications in the same discipline, taking action for infamous
conduct etc. It also contains a penal provision. Thus, the legislative
intent in enacting the Pharmacy Act seems to be to ensure that
there is seamless regulation of the profession. To carry out the
objective and purpose for enacting the Pharmacy Act, the
Legislature has established under the Statute the autonomous
statutory authority i.e. Pharmacy Council of India. Thus it can be
said that in the field of pharmacy, the Pharmacy Act is a special
law. [Para 13.2][741-D-H; 742-A-B]
3. On the other hand, the AICTE Act can be said to be a
general law applicable to the technical institutions and technical
education. If this Court considers the Statement of Objects and
Reasons for the AICTE Act, it is specifically stated that the
AICTE Act was originally set up by a Government Resolution as
a National Expert Body to advise the Central and State
Government for ensuring the coordinated development of
technical education in accordance with the approved standards.
[Para 13.3.][742-C-D]
4. Thus, it can be said that the AICTE Act can be said to be
a general law with respect to the technical education. It is true
that in the definition, as per Section 2(g) of the AICTE Act,
"technical education" also means "pharmacy". [Para 13.3]
[744-B]
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5. Applying the law laid down by the Supreme Court, the
Pharmacy Act is a Special Act in the field of pharmacy and it is a
complete code in itself in the field of pharmacy, the Pharmacy Act
shall prevail over the AICTE Act which, as observed hereinabove,
is a general statute dealing with technical education/institutions.
Therefore, the submission on behalf of AICTE and/or concerned
educational institutions that the AICTE Act is a subsequent law
and in the definition of "technical education" it includes the
"pharmacy" and therefore it can be said to be an "implied repeal",
cannot be accepted. At this stage, it is required to be noted that
as such in the AICTE Act there is no specific repeal of the
Pharmacy Act, more particularly when, as observed hereinabove,
the Pharmacy Act is a Special Act and the subsequent enactment
of AICTE Act is general and therefore the Pharmacy Act being a
Special Act must prevail. Apart from that, with regard to several
aspects, there is no provision made in AICTE Act which are
exclusively within the domain of PCI. Thus, it cannot be accepted
that there is 'implied repeal' of the Pharmacy Act. [Para 15][749B-D]
Whether in the field of pharmacy, PCI would have the
jurisdiction or AICTE constituted under the AICTE Act which is
held to be a general law.
7. PCI consists of experts in the field of pharmacy and related
subjects connected with the education of pharmacy. Therefore,
under the statute, specialized persons in the field of
pharmaceutical, pharmacy etc. shall be the members of the PCI.
[Para 16][749-E; 750-E]
8. On the other hand, so far as AICTE is concerned, only
one member would be from the field of pharmacy and that too
representative of PCI. Under the circumstances, the PCI is the
body of experts connected with the subject of pharmacy and
related subjects and therefore it will be in the larger interest and
more particularly in the interest of education of pharmacy that
PCI shall alone have the Jurisdiction in the field of pharmacy,
rather than AICTE. [Para 16.1][750-F]
9. The aforesaid question is also required to be viewed from
another angle. Both, the PCI and AICTE are the creature of the
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statute. Therefore, it is not at all healthy that the two regulators,
both being Central authorities, can be permitted to fight for
supremacy. The fight of supremacy between both the regulators
is unhealthy for the education sector as well as the institutions to
permit two regulators to function in the same field. Therefore
also and more particularly when the PCI is consisting of the experts
in the field of pharmacy and other related subjects, it is in the
larger interest in the field of pharmacy that the PCI must be given
the power to regulate in the field of pharmacy. [Para 17][750-GH; 751-A]
10. In view of the above and for the reasons stated above, it
is held that in the field of Pharmacy Education and more
particularly so far as the recognition of degrees and diplomas of
Pharmacy Education is concerned, the Pharmacy Act, 1948 shall
prevail. The norms and regulations set by the PCI and other
specified authorities under the Pharmacy Act would have to be
followed by the concerned institutions imparting education for
degrees and diplomas in Pharmacy, including the norms and
regulations with respect to increase and/or decrease in intake
capacity of the students and the decisions of the PCI shall only be
followed by the institutions imparting degrees and diplomas in
Pharmacy. The questions are answered accordingly. [Para 21][753E-F]
UPSEB v. Hari Shanker Jain (1978) 4 SCC 16 : [1979]
1 SCR 355; LIC of India v. D.J. Bahadur (1981) 1 SCC
315 : [1981] 1 SCR 1083; Yakub Abdul Razak Memon
v. State of Maharashtra (2013) 13 SCC 1 : [2013] 15
SCR 1; R.S. Raghunath v. State of Karnataka (1992) 1
SCC 335 : [1991] 1 Suppl. SCR 387; AICTE v. Shri
Prince Shivaji Maratha Boarding House's College of
Architecture (2019) SCC Online SC 1445 : (2019) 16
SCALE 421 - relied on.
Bharathidasan University v. All-India Council for
Technical Education (2001) 8 SCC 676 : [2001] 3 Suppl.
SCR 253; Municipal Council v. T.J. Joseph [1964] 2
SCR 87; Byram Prestonji Gariwala v. Union Bank of
India (1992) 1 SCC 31 : [1991] 1 Suppl. SCR 187;
Nasiruddin v. Sita Ram Agarwal (2003) 2 SCC 577 :
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[2003] 1 SCR 634; Union of India v. Deoki Nandan
Aggarwal (1992) 1 Suppl. SCC 323 : [1991] 3 SCR
873; Ajeet Singh Singhvi v. State of Rajasthan (1991)
Suppl. 1 SCC 343 : [1991] 1 SCR 579; Ajoy Kumar
Banerjee v. Union of India (1984) 3 SCC 127 : [1984]
3 SCR 252; Association of Management of Private
Colleges v. All Indian Council for Technical Education
(2013) 8 SCC 385 - referred to.
Case Law Reference
(2019) 16 SCALE 421
relied on
Para 5.2
[2001] 3 Suppl. SCR 253
referred to
Para 5.15
[1979] 1 SCR 355
relied on
Para 5.17
[1981] 1 SCR 1083
relied on
Para 5.17
[2013] 15 SCR 1
relied on
Para 5.17
[1964] 2 SCR 87
referred to
Para 5.19
[1991] 1 Suppl. SCR 187
referred to
Para 5.19
[2003] 1 SCR 634
referred to
Para 6.5
[1991] 3 SCR 873
referred to
Para 6.6.
[1991] 1 SCR 579
referred to
Para 6.7
[1984] 3 SCR 252
referred to
Para 6.7
(2013) 8 SCC 385
referred to
Para 7.1
[1991] 1 Suppl. SCR 387
relied on
Para 14.5
CIVIL ORIGINAL/APPELLATE JURISDICTION: Transferred
Case (Civil) Nos. 213-227 of 2020.
(Petitions filed under Article 139A (1) With Order XXXVI-A Part
IVA)
With
Civil Appeal Nos. 2024-2027, 2028-2031, 2032, 2035, 2036, 2033,
2034, 2037, 2039, 2038, 2040, 2041, 2042, 2043 of 2020, Writ Petition
(C) No. 926 of 2018, 1501 of 2019.
PHARMACY COUNCIL OF INDIA v. DR. S.K. TOSHNIWAL EDUCATIONAL
TRUSTS VIDARBHA INST. OF PHARMACY
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Ms. Pinky Anand,ASG, Maninder Singh, P.N. Ravindran, Deepak
Nagalkar, Vinay Navare, Sr. Advs., Amit Sharma, Gopal Jha, G.S. Makker,
Ms. Saudamini Sharma, Hemant Arya, Chakitan V.S. Papta, Zoheb
Hossain, Prabhas Bajaj, Piyush Goyal, Ms. Ashita Chawla, Atul Shankar,
Dileep Pillai, M.P. Vinod, P.S. Sudheer, Rishi Maheshwari, Bharat Sood,
Ms. Anne Mathew, Ms. Shruti Jose, Rituraj Biswas, Amitesh Kumar,
Ms. Binisa Mohanty, Ms. Priti Kumari, Mritunjay Kumar Sinha, Adil
Muneer Andrabi, Mohd. Imran P., Amir Yousuf W., Sadam Hussain,
M/s. S.M. Jadhav and Company, Sudhanshu S. Choudhari, Yogesh Colte,
Mahesh P. Shinde, Ms. Gwen Karthika, Ms. Abha R. Sharma, Amol
Nirmalkumar Suryawanshi, Ms. Qurratulain, Shivaji M. Jadhav, Brij
Kishor Sah, Nicholas Choudhary, Shivam Singh, Ravi Kant, Mayank
Manish, Chandra Shekhar Singh, Chandra Prakash, Rozer Willsan
Mathew, Hitesh Kumar Sharma, Akhileshwar Jha, Willson Thomas (for
M. K. Sinha), Mritunjay Kumar Sinha, Sachin Patil, Preshit Vilas Surshe,
Nishant Ramakantrao Katneshwarkar, Zoheb Hossain, Saurav Agrawal,
Ashish Kumar Tiwari, Vibhu Anshuman, Suhas Kadam (for M/s. Lemax
Lawyers & Co.), Gaurav Agrawal, Bijoy Kumar Jain, Sridhar Potaraju,
Ms. Shweta Parihar, Ms. Shiwani Tushir, Ms. G. Ushasri, Vishnu Tulasi
Menon, Rajiv Ranjan Dwivedi, Anil Soni, Harish Pandey, Aniruddha
Deshmukh, P. S. Sudheer, Rituraj Biswas, Ms. Abha R. Sharma, Amol
Nirmalkumar Suryawanshi, Nishant Ramakantrao Katneshwarkar,
M/S. Lemax Lawyers & Co., Advs. for the appearing parties.
Respondent-in-person.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Transfer Petitions (Civil) Nos. 87-101 of 2014 are allowed and
Writ Petition Nos. 3783 of 2013 - Dr. S. K. Toshniwal Educational Trust's
Vidarbha Institute of Pharmacy vs. The State of Maharashtra & Ors.,
W.P. No. 3945 of 2013 - Young Engineer's Education Society vs. The
State of Maharashtra & Ors. pending in the High Court of Judicature at
Bombay, Nagpur Bench, Nagpur, W.P. No. 4992 of 2013 - The Shirpur
Education Society & Anr. vs. The State of Maharashtra & Ors., W.P.
No. 5104 of 2013 - Shri Bhagwan College of Pharmacy vs. The State
of Maharashtra & Ors., W.P. No. 5150 of 2013 - Kiran & Ors. vs. The
State of Maharashtra & Ors., W.P. No. 5681 of 2013 - Yashodabai
Dagadu Saraf Charitable Trust & Anr. vs. The State of Maharashtra &
Ors., W.P. No. 5914 of 2013 - Nagaon Education Society's Institute of
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Pharmacy, Nagaon vs. The State of Maharashtra & Ors. pending in the
High Court of Judicature at Bombay Bench at Aurangabad, W.P. No.
19253 of 2013 - Aldel Education Trust vs. All India Council for Technical
Education, W.P. 19254 of 2013 - Shikshan & Krushi Vikas Pratishthan
Medshingi vs. All India Council for Technical Education & Ors., W.P.
19255 of 2013 - K.B.H.S.S. Trust vs. All India Council for Technical
Education & Ors. pending in the High Court of Judicature at Bombay,
W.P. No. 19887 of 2013 - The Shirpur Education Society & Anr. vs.
The State of Maharashtra pending in the High Court of Judicature at
Bombay Bench at Aurangabad, W.P. No. 25857 of 2013 - St. Mary's
Group of Institutions Hyderabad vs. The Pharmacy Council of India &
Ors., W.P. No. 26077 of 2013 - B. Sridhar & Ors. vs. The Pharmacy
Council of India & Ors., W.P. No. 26286 of 2013 - St. Mary's Group of
Institutions Guntur vs. The Pharmacy Council of India & Ors. pending
in the High Court of Judicature at Andhra Pradesh at Hyderabad and
W.P. 1388 of 2013 - Kashi Institute of Pharmacy v. Union of India &
Ors. pending in the High Court of Judicature at Allahabad, Lucknow
Bench, Lucknow are transferred to this Court.
2. Leave granted in the Special Leave Petitions.
3. As common question of law and facts arise in this group of
cases, all these cases are being decided together by this common
judgment and order.
4. In all these petitions, respective respondent-Colleges
approached the respective High Courts with the grievance regarding
actions of approval of the second shift by the Pharmacy Council of India
(hereinafter referred to as the PCI) and restriction on increasing the
intake capacity of students for various pharmacy courses. Since the
respective respondent Colleges increased the intake of students, based
upon the requisite permission/approval obtained from the All India Council
of Technical Education (hereinafter referred to as the AICTE), the
respective High Courts have allowed the colleges to increase/continue
with the increase in intake. The respective High Courts have concluded
that AICTE is the supreme authority between the two bodies, namely,
AICTE and PCI and the decision of AICTE will prevail over the decision
of PCI. That, by the interim orders, the High Court allowed the Institutions
to continue with the increased number of intake as approved/permitted
by AICTE. That, in some of the cases, such interim orders have been
made absolute. Therefore, the issue involved in the present batch of
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cases is regarding the applicability of the Pharmacy Act, 1948 (hereinafter
referred to as the Pharmacy Act) or the All India Council of Technical
Education Act, 1987 (hereinafter referred to as the AICTE Act) in
relation to the subject of Pharmacy, including approval of courses of
study, minimum standards of education required for qualification as a
Pharmacist, registration as a Pharmacist, regulation of future professional
conduct etc.
SUBMISSIONS OF PCI
5. Shri Maninder Singh, learned Senior Advocate appearing on
behalf of PCI has vehemently submitted the following arguments:
5.1 That having regard to the statutory scheme contained in the
Pharmacy Act, which is a complete code by itself dealing with the subject
of pharmacy, the jurisdiction for regulating the standards of education in
the subject of pharmacy and subsequent professional conduct of
pharmacists vests entirely in the PCI and AICTE does not have any
jurisdiction or power in this behalf.
5.2 That, as such, the issue involved in the present batch of cases
is now not res integra and is clearly covered by the decision of this
Court in the case of AICTE v. Shri Prince Shivaji Maratha Boarding
House's College of Architecture (2019) SCC Online SC 1445 = (2019)
16 SCALE 421. It is submitted that, in the said case, while dealing with
an identical statutory scheme in the case of Council of Architecture
constituted under the Architects Act, 1972 , this Court has held that even
when the definition of "technical education" in Section 2(g) of the AICTE
Act also uses the word "architecture", the said word would have to be
dropped from the definition of "technical education" and shall be treated
as inapplicable in cases where AICTE imports its regulatory framework.
It is further submitted that, in that case, it is held that insofar as recognition
of degrees and diplomas of architecture education is concerned, the
Architecture Act, 1972 would prevail and that AICTE shall not be entitled
to impose any regulatory measure in connection with the degrees and
diplomas in the subject of architecture. Heavy reliance has been placed
upon paragraphs 67 to 70 of the said decision.
That, in the said decision, this Court considered the entirely
identical statutory scheme contained in the Architects Act, 1972 and
therefore the same would squarely apply for interpretation of the Pharmacy
Act as well. It is submitted that even in the case of pharmacy, the stand
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of AICTE is based solely upon the user of the word "pharmacy" in the
definition of "technical education" in Section 2(g) of the AICTE Act. It
is submitted that having regard to the law laid down by this Court in the
aforesaid decision, as well as the statutory scheme under the Pharmacy
Act, the said word "pharmacy" would deserve to be dropped from the
definition of "technical education" under Section 2(g) of the AICTE Act
and would deserve to be held to be inapplicable in relation to the regulatory
measures for prescribing minimum standards for education in the field
of pharmacy.
5.3 That even otherwise and having regard to the statutory scheme
under the Pharmacy Act, which is a complete code and a special law in
relation to subject of pharmacy, PCI is empowered to not only regulate
the profession of Pharmacy, but also the educational institutions from
which persons may obtain the qualification as a pharmacist and that
AICTE does not have any jurisdiction in that behalf.
5.4 That pharmacy is the profession of preparing, preserving,
compounding and dispensing medical drugs. It is submitted that, under
the Pharmacy Act, the PCI has been constituted as a body empowered
to regulate the education and profession of Pharmacy in India. It is
submitted that PCI has been empowered to determine and enforce the
qualifications required for a person to practice as Pharmacist in India,
including approving courses of study and institutions which may offer
such courses of study to enable one to practice the profession of a
pharmacist. Relying upon the Statement of Objects and Reasons of the
Pharmacy Act, it is vehemently submitted by the learned Senior Advocate
appearing for PCI that PCI is supposed to prescribe the minimum
standards of education and approve courses of study for pharmacists.
5.5 That pharmacy is one of the several disciplines/subjects where
the Legislature has laid down that for imparting education in that subject,
the minimum standards are to be prescribed by an autonomous statutory
body comprising of eminent professionals in the field. It is submitted that
they not only prescribe the standard of education of different courses in
the discipline/subject, they also lay down eligibility conditions for students
as well as teachers, course content, standards for evaluation of
examination etc. It is submitted that they also approve the courses in the
subject in colleges/institutions on the basis of the laid down norms by
verification by inspections. It is submitted that the law also deals with
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the registration of the professionals in that discipline as well as their
subsequent conduct as registered professionals.
5.6 That it is very much important and/or necessary that the
autonomous statutory authority which is made obliged to supervise and
monitor the conduct of professionals by the Legislature in a particular
discipline is also given a free hand to decide about the standards of
education, approval of courses/institutions evaluation of standards of
examination and thereafter grant of registration.
5.7 That the Legislature has clearly envisaged only one autonomous
statutory authority to undertake all these integrated functions and it is
impossible to conceive that in the same very occupied field, another
statutory authority, seeks to assume/usurp jurisdiction thereby creating
unsavory practical problems, conflicts and inconsistencies, thereby
defeating the entire objective sought to be achieved by the Special Law.
5.8 That subject of Pharmacy is a special and not a general subject.
It is submitted that it has been exhaustively dealt with by the Parliament
through the Pharmacy Act which exhaustively covers all areas inclusive
of approval of courses, laying down course content, eligibility conditions
for students as well as teachers, evaluation of standards of examination,
grant of registration, taking action for any infamous conduct etc. It is
submitted that this entire legislative objective is achieved through the
Pharmacy Act and the statutory rules and regulations made thereunder.
5.9 That Section 10 of the Pharmacy Act empowers the PCI to
frame Education Regulations prescribing the minimum standards of
education required for qualification as a pharmacist. It is submitted that
as per Section 10(2), such 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.
5.10 That the power to approve courses of study and examination
is contained in Section 12 of the Pharmacy Act. It is submitted that
under this provision, any "authority" in a State that is empowered to
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conduct a course of study in pharmacy may apply to the Central Council
for approval of the course in accordance with the Education Regulations.
It is further submitted that likewise, any authority which conducts an
examination in a State for pharmacy may apply to the PCI for approval
of such examination. It is submitted that a student who has passed/
completed an approved course and passed an approved examination
may therefore be registered as a Pharmacist, subject to meeting other
requirements. It is submitted that therefore, under the Pharmacy Act,
the approval of PCI in conducting any course of pharmacy is mandatory
and, in the absence of the same, no student can be awarded the degree
or diploma for such a course which makes him entitled for registration
as a pharmacist to practice the profession of pharmacy in the country.
It is submitted that Section 12(1) of the Pharmacy Act empowers the
PCI to grant approval to an Institution which conducts a "course of
study" for pharmacist. It is submitted that, as per Section 12, an application
has to be made to the Central Council seeking approval which after
such enquiry, as it thinks fit to make, that the said course of study is in
conformity with the Education Regulations envisaged under Section 10
prescribing the minimum standard of education required for qualification
as a pharmacist, shall declare the said course of study for the purpose of
admission to be an approved examination for pharmacists.
5.10.1 That Section 13 of the Pharmacy Act also empowers the
Central Council to withdraw approval accorded to the 'course of study'
and 'examination' for failure to comply with the prescribed norms.
5.10.2 That Section 16 empowers the Executive Committee to
appoint inspectors to inspect any institution which provides an approved
course of study or those institutions which apply for approval of course
of study or examination.
5.10.3 That Section 29 deals with the preparation and maintenance
of a register of pharmacists. Section 35 provides for entry of additional
qualifications in the register in relation to any registered pharmacist.
Section 36 provides for the removal of any person from the register,
either permanently or for a temporary period. That it is evident therefore
that PCI does not just regulate the provisions itself, but also plays a vital
role in regulating entry into the profession by approving the courses and
examination which constitute appropriate qualifications to be registered
as a pharmacist under Section 32(2). It is submitted that under Section
42 of the Pharmacy Act, a person may not practice the profession of
PHARMACY COUNCIL OF INDIA v. DR. S.K. TOSHNIWAL EDUCATIONAL
TRUSTS VIDARBHA INST. OF PHARMACY [M. R. SHAH, J.]
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pharmacy unless he or she is registered as a pharmacist in accordance
with the Pharmacy Act and Section 42(2) is a penal provision which
states that any person who is not a registered pharmacist and contravenes
Section 42(1) shall be punishable with imprisonment for a term which
may extend to six months, or with fine not exceeding one thousand rupees
or with both.
5.11 That in exercise of powers vested in it under the Pharmacy
Act, the PCI has framed a number of Regulations for prescribing
minimum standards of education as well as regulating the subject of
pharmacy in India, including:-
a. Education Regulations, 1991;
b. Pharm. D. Regulations, 2008;
c. Minimum Qualifications for Teachers in Pharmacy Institutions
Regulations, 2014;
d. Bachelor of Pharmacy (B. Pharm) Course Regulations, 2014;
e. Master of Pharmacy (M.Pharm) Course Regulations, 2014;
f. Bachelor of Pharmacy (Practice) Regulations, 2014;
g. Pharmacy Practice Regulations, 2015.
5.12 That the aforesaid statutory scheme clearly demonstrates
that the field of Pharmacy is fully occupied with all details and is all
pervasive. It is submitted that it is fully covered and governed not only
by the provisions of the Pharmacy Act, but also supplemented by the
statutory Rules and statutory Regulations made thereunder; thereby
providing a complete code on the subject of Pharmacy.
5.13 That the legislative intent in enacting the Pharmacy Act was
to ensure that there is seamless regulation of the profession, both in
terms of the qualifications required to be registered as a pharmacist and
the actual practice of pharmacy as a profession. It is submitted that the
same scheme has been adopted by the Parliament with respect to, inter
alia, the legal profession (Bar Council of India), medical profession
(Medical Council of India), architects (Architecture Council of India),
nursing (Nurses Council of India) and dentistry (Dental Council of India).
It is submitted that therefore the Pharmacy Act is a special law dealing
with the subject/field of pharmacy.
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5.14 That, on the other hand, the AICTE Act is merely to ensure
that the standards are maintained in the area of technical education and
that it is not intended to take over all aspects of the regulation of specialized
education in India for which specialized regulatory bodies already operate
under their respective laws. It is submitted that a perusal of the Statement
of Objects and Reasons of the AICTE Act demonstrates that AICTE
had been for assisting and guiding the Central Government in relation to
policies on the subject of engineering and similar technical subjects. That
it has not been created to dilute, in any manner whatsoever, the autonomy
and authority of other statutory bodies. It is submitted that it does not
oversee any course which requires registration of professionals and their
conduct. That it has no jurisdiction whatsoever on the subject of medicine,
dentistry, architecture as well as pharmacy.
5.15 That the scope of powers of the AICTE and the legislative
intent behind the AICTE Act has been explained by this Court in the
case of Bharathidasan University v. All-India Council for Technical
Education (2001) 8 SCC 676. Heavy reliance has been placed on
Paragraphs 8 and 10.
5.16 That therefore the legislative intent behind the AICTE Act is
therefore clear. It is not intended to replace or supersede existing
regulatory bodies, but rather was intended to focus on coordinating and
improving the standards of technical education across the country in an
advisory capacity. It is submitted that therefore in the regulation of
Pharmacy education, PCI continues to be the regulator of the educational
institutions under the Pharmacy Act. That in relation to regulation of
educational institutions in the field of Pharmacy, the provisions of the
Pharmacy Act being a Special Law dealing with the subject of
"Pharmacy" would prevail over the AICTE Act, being a General Law
for "technical education".
5.17 That even otherwise the Pharmacy Act being a special law
on the subject of Pharmacy would prevail over the AICTE Act. It is
submitted that it is a settled position of law that a special law dealing
with any subject would prevail over the general law which may be dealing
with the said subject only incidentally. That this principle of law is also
enshrined in the maxim generalia specialibus non derogant. It is
submitted that it is an exception to the principle that a latter statute would
prevail over an earlier statute. It is submitted that therefore an earlier
Special Law would prevail over a later General Law. In support of the
PHARMACY COUNCIL OF INDIA v. DR. S.K. TOSHNIWAL EDUCATIONAL
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above submissions, heavy reliance has been placed upon the decisions
of this Court in the cases of UPSEB v. Hari Shanker Jain (1978) 4
SCC 16; LIC of India v. D.J. Bahadur (1981) 1 SCC 315 and Yakub
Abdul Razak Memon v. State of Maharashtra (2013) 13 SCC 1.
5.18 Relying upon the above decisions, it is urged that even in
case of any conflict, the Pharmacy Act being a special law dealing with
the special subject of pharmacy would prevail over the AICTE Act being
a general law in the field of technical education.
5.19 That even the submission on behalf of the respondents based
on the principle of 'implied repeal' are entirely misconceived and
erroneous. It is submitted that it has been held by this Court in the case
of Municipal Council v. T.J. Joseph (1964) 2 SCR 87 that when two
laws are made by the Legislature at different points of time, dealing with
the same subject matter, there is no presumption that the later law impliedly
repeals the earlier law. Heavy reliance is also placed upon the decision
of this Court in Byram Prestonji Gariwala v. Union Bank of India
(1992) 1 SCC 31. That in the aforesaid decision, it is held by this Court
that any fundamental change/alteration in law cannot be presumed by
applying the principle of "implied repeal". That it is held that any
fundamental change/alteration in law, can only be carried out by explicit
words, and not "by a sidewind". That therefore, in the aforesaid decision,
the contention based on the principle of "implied repeal" has been
rejected.
5.19.1 That therefore having regard to the Statement of Objects
and Reasons as well as the scheme of the AICTE Act, as also explained
in para 8 of the judgment in Bharthidarsan case (supra), it is abundantly
clear that the Parliament has not intended to fundamentally alter the
existing regime where - from the stage of prescribing the minimum
standards of education, approving the courses of study to the stage of
registration and future monitoring of professional conduct of pharmacist
the Pharmacy Act vests the PCI with such jurisdiction and power.
5.19.2 That as such the AICTE Act cannot be treated to have, in
any manner whatsoever, affected the jurisdiction and power of the PCI
in this behalf. It is submitted that therefore AICTE Act cannot be held to
have "implied repealed" the Pharmacy Act and any contention to the
contrary would deserve to be rejected by this Court.
5.19.3 That in the absence of any express or implied legislative
intent, the AICTE Act cannot be held to have repealed the Pharmacy
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Act and on the contrary, the provisions of the Pharmacy Act, being a
special law dealing comprehensively with the subject of Pharmacy, would
prevail over the AICTE Act.
5.20 This Court while disposing of SLP (c) Diary No. 24798 of
2018 - Progressive Education Society's College of Pharmacy v. State
of Maharashtra (dated 24.07.2018) has observed that "it is desirable
that the Government of India should revisit the definition in Section 2(g)
of the AICTE Act. Whether there could have been inclusion of pharmacy
when it was already converted by the Pharmacy Act". It is submitted
that in fact thereafter in a inter-Ministerial meeting held on 30.09.2019
between the Minister of Health and Family Welfare, Government of
India and Minister of HRD, Government of India, a decision has been
taken that the word "pharmacy" would be deleted from the definition of
"technical education" under the AICTE Act. However, the said
amendment is still to be carried out. It is submitted that even the proposed
Higher Education Commission of India Bill, 2019, which seeks to repeal
the UGC and AICTE Acts and the Allied and Healthcare Professions
Bill, 2018, which seeks to bring into existence a regulatory mechanism
for 53 allied and healthcare professions such as physiotherapists,
radiologists, nutritionists etc., have no relation whatsoever with the PCI.
It is submitted that all the four Councils dealing with Medicine, Dentistry,
Pharmacy and Nursing would continue to discharge their respective duties
and activities under special enactments.
5.21 That the submission of the respondent Colleges and the
AICTE Act to the effect that PCI can regulate only the grant of Diploma
in Pharmacy and not the further courses/qualifications, is absolutely
erroneous, misconceived and unsustainable in law in view of the specific
provisions under Sections 12 and 35 of the Pharmacy Act. It is submitted
that Sections 12 and 35 makes it abundantly clear that it is all courses in
relation to pharmacy which get covered by the scheme of the Pharmacy
Act.
5.22 That the primary reason of conflict between the AICTE and
PCI was on account of AICTE permitting colleges to double the intake
capacity for courses where the intake capacity had been fixed by the
PCI, and also on account of AICITE permitting the second shift (evening
classes) contrary to the regulations of PCI.
5.23 That even recently a public notice has been issued by the
AICTE which informs that AICTE is still inviting applications for grant
PHARMACY COUNCIL OF INDIA v. DR. S.K. TOSHNIWAL EDUCATIONAL
TRUSTS VIDARBHA INST. OF PHARMACY [M. R. SHAH, J.]
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of approval for courses of Architecture, despite the decision of this Court
in Shri Prince Shivaji Maratha Boarding House's College of
Architecture (supra). That therefore even the said public notice is in
the teeth of this Court's judgment and order and the same is nothing but
deliberate disobedience of the decision of this Court.
5.24 Making the above submissions and relying upon the above
decisions, it is prayed to allow the present petitions and hold that the PCI
possesses the jurisdiction and power to regulate the education as well as
practice of profession of pharmacy in relation to all its aspects and AICTE
would not have any jurisdiction or power in that regard. It is also prayed
to hold that the word "pharmacy" in Section 2(g) of the AICTE Act
deserves to be treated as inapplicable in relation to the regulation of
education and practice of profession in pharmacy.
SUBMISSIONS OF AICTE
6. Shri Harish Panday, learned counsel appearing on behalf of the
AICTE has raised the following submissions:
6.1 That AICTE was originally set up in the year 1945 by a
Government resolution as a National Expert Body to advise Central and
State Government for ensuring the coordinated development and technical
education in accordance with approved standards and was playing
effective role. It is submitted that taking into account the growing erosion
of standard and pursuant to recommendation, a National Working Group
was set up in November 1985 to look into the role of AICTE. In order to
enable the AICTE to play its role effectively, it was recommended that
council should be given the statutory power. The National Policy of
Education 1986 also stipulated that Council will be vested with statutory
power. A Bill was introduced to ensure proper planning and coordinated
development of Technical Education system in the country. It is submitted
that the AICTE Act has been enacted with an object to provide for the
establishment of an AICTE with a view to proper planning and
coordinated development of the technical education system throughout
the country; the promotion of qualitative improvement of such education
in relation to planned quantitative growth and the regulation and proper
maintenance of norms and standards in the technical education system
and for matters connected therewith.