THE PHARMACY COUNCIL OF INDIA versus DR. S.K. TOSHNIWAL EDUCATIONAL TRUSTS VIDARBHA INSTITUTE OF PHARMACY AND ORS. ETC. on 5 March 2020

1. As per the Preamble of the Pharmacy Act, 1948, thePharmacy Act has been enacted to make better provision for theregulation of the profession and practice of Pharmacy and for thatpurpose to constitute Pharmacy Councils. If this Court considersthe relevant provisions of the Pharmacy Act, it covers all areasinclusive of approval of courses, laying down course content,eligibility conditions for students as well as teachers, evaluationof standards of examination, grant of registration, entry of higherqualification, taking action for any infamous conduct etc. Therelevant 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, PCIhas framed a number of Regulations for prescribing minimumstandards of education as well as regulating the subject ofpharmacy in India, including:

a. Education Regulations, 1991;

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b. Pharm. D Regulations, 2008;

c. Minimum Qualifications for Teachers in PharmacyInstitutions Regulations, 2014;

d. Bachelor of Pharmacy (B.Pharm) Course Regulations,G2014;

e. Master of Pharmacy (M.Pharm) Course Regulations,2014; H

[2020] 5 S.C.R.

Af. Bachelor of Pharmacy (Practice) Regulations, 2014;

Thus, considering the various provisions of the PharmacyAct and the regulations made therein, it can be said that thePharmacy Act is a complete Code in itself in the subject ofBpharmacy. The PCI has been constituted as a body empowered toregulate the education and profession of pharmacy in India. Itcannot be disputed that the subject of pharmacy is a special andnot a general subject. From the relevant provisions of thePharmacy Act, more particularly, the provisions referred toChereinabove, the Pharmacy Act exclusively covers all areasinclusive of approval of courses, laying down course content,eligibility conditions for students as well as teachers, evaluationstandards of examination, grant of registration, entry of higherqualifications in the same discipline, taking action for infamousconduct etc. It also contains a penal provision. Thus, the legislativeDintent in enacting the Pharmacy Act seems to be to ensure thatthere is seamless regulation of the profession. To carry out theobjective and purpose for enacting the Pharmacy Act, theLegislature has established under the Statute the autonomousstatutory authority i.e. Pharmacy Council of India. Thus it can beEsaid that in the field of pharmacy, the Pharmacy Act is a speciallaw. [Para 13.2][741-D-H; 742-A-B]

3. On the other hand, the AICTE Act can be said to be ageneral law applicable to the technical institutions and technicaleducation. If this Court considers the Statement of Objects andFReasons for the AICTE Act, it is specifically stated that theAICTE Act was originally set up by a Government Resolution asa National Expert Body to advise the Central and StateGovernment for ensuring the coordinated development oftechnical education in accordance with the approved standards.[Para 13.3.][742-C-D]G

4. Thus, it can be said that the AICTE Act can be said to bea general law with respect to the technical education. It is truethat in the definition, as per Section 2(g) of the AICTE Act,“technical education” also means “pharmacy”. [Para 13.3][744-B]H

5. Applying the law laid down by the Supreme Court, thePharmacy Act is a Special Act in the field of pharmacy and it is acomplete code in itself in the field of pharmacy, the Pharmacy Actshall 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 concernededucational institutions that the AICTE Act is a subsequent lawand 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 thatas such in the AICTE Act there is no specific repeal of thePharmacy Act, more particularly when, as observed hereinabove,the Pharmacy Act is a Special Act and the subsequent enactmentof AICTE Act is general and therefore the Pharmacy Act being aSpecial Act must prevail. Apart from that, with regard to severalaspects, there is no provision made in AICTE Act which areexclusively within the domain of PCI. Thus, it cannot be acceptedthat there is ‘implied repeal’ of the Pharmacy Act. [Para 15][749-B-D]

Whether in the field of pharmacy, PCI would have thejurisdiction or AICTE constituted under the AICTE Act which isheld to be a general law.

7. PCI consists of experts in the field of pharmacy and relatedsubjects connected with the education of pharmacy. Therefore,under the statute, specialized persons in the field ofpharmaceutical, 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, onlyone member would be from the field of pharmacy and that toorepresentative of PCI. Under the circumstances, the PCI is thebody of experts connected with the subject of pharmacy andrelated subjects and therefore it will be in the larger interest andmore particularly in the interest of education of pharmacy thatPCI 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 fromanother angle. Both, the PCI and AICTE are the creature of the AB

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Astatute. Therefore, it is not at all healthy that the two regulators,both being Central authorities, can be permitted to fight forsupremacy. The fight of supremacy between both the regulatorsis unhealthy for the education sector as well as the institutions topermit two regulators to function in the same field. Thereforealso and more particularly when the PCI is consisting of the expertsBin the field of pharmacy and other related subjects, it is in thelarger interest in the field of pharmacy that the PCI must be giventhe power to regulate in the field of pharmacy. [Para 17][750-G-H; 751-A]

10. In view of the above and for the reasons stated above, itCis held that in the field of Pharmacy Education and moreparticularly so far as the recognition of degrees and diplomas ofPharmacy Education is concerned, the Pharmacy Act, 1948 shallprevail. The norms and regulations set by the PCI and otherspecified authorities under the Pharmacy Act would have to be Dfollowed by the concerned institutions imparting education fordegrees and diplomas in Pharmacy, including the norms andregulations with respect to increase and/or decrease in intakecapacity of the students and the decisions of the PCI shall only befollowed by the institutions imparting degrees and diplomas inPharmacy. The questions are answered accordingly. [Para 21][753-EE-F]

UPSEB v. Hari Shanker Jain (1978) 4 SCC 16 : [1979]1 SCR 355; LIC of India v. D.J. Bahadur (1981) 1 SCC315 : [1981] 1 SCR 1083; Yakub Abdul Razak Memonv. State of Maharashtra (2013) 13 SCC 1 : [2013] 15FSCR 1; R.S. Raghunath v. State of Karnataka (1992) 1SCC 335 : [1991] 1 Suppl. SCR 387; AICTE v. ShriPrince Shivaji Maratha Boarding House’s College ofArchitecture (2019) SCC Online SC 1445 : (2019) 16SCALE 421 – relied on.GBharathidasan University v. All-India Council forTechnical Education (2001) 8 SCC 676 : [2001] 3 Suppl.SCR 253; Municipal Council v. T.J. Joseph [1964] 2SCR 87; Byram Prestonji Gariwala v. Union Bank ofIndia (1992) 1 SCC 31 : [1991] 1 Suppl. SCR 187;HNasiruddin v. Sita Ram Agarwal (2003) 2 SCC 577 :

PHARMACY COUNCIL OF INDIA v. DR. S.K. TOSHNIWAL EDUCATIONALTRUSTS VIDARBHA INST. OF PHARMACY

[2003] 1 SCR 634; Union of India v. Deoki NandanAggarwal (1992) 1 Suppl. SCC 323 : [1991] 3 SCR873; Ajeet Singh Singhvi v. State of Rajasthan (1991)Suppl. 1 SCC 343 : [1991] 1 SCR 579; Ajoy KumarBanerjee v. Union of India (1984) 3 SCC 127 : [1984]3 SCR 252; Association of Management of PrivateColleges v. All Indian Council for Technical Education(2013) 8 SCC 385 – referred to.

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Case Law Reference

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CIVIL ORIGINAL/APPELLATE JURISDICTION: TransferredCase (Civil) Nos. 213-227 of 2020.

(Petitions filed under Article 139A (1) With Order XXXVI-A PartIVA)

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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.

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AMs. Pinky Anand,ASG, Maninder Singh, P.N. Ravindran, DeepakNagalkar, Vinay Navare, Sr. Advs., Amit Sharma, Gopal Jha, G.S. Makker,Ms. Saudamini Sharma, Hemant Arya, Chakitan V.S. Papta, ZohebHossain, 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,BMs. Binisa Mohanty, Ms. Priti Kumari, Mritunjay Kumar Sinha, AdilMuneer 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, AmolNirmalkumar Suryawanshi, Ms. Qurratulain, Shivaji M. Jadhav, BrijCKishor Sah, Nicholas Choudhary, Shivam Singh, Ravi Kant, MayankManish, Chandra Shekhar Singh, Chandra Prakash, Rozer WillsanMathew, Hitesh Kumar Sharma, Akhileshwar Jha, Willson Thomas (forM. 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. LemaxDLawyers & Co.), Gaurav Agrawal, Bijoy Kumar Jain, Sridhar Potaraju,Ms. Shweta Parihar, Ms. Shiwani Tushir, Ms. G. Ushasri, Vishnu TulasiMenon, Rajiv Ranjan Dwivedi, Anil Soni, Harish Pandey, AniruddhaDeshmukh, P. S. Sudheer, Rituraj Biswas, Ms. Abha R. Sharma, AmolNirmalkumar Suryawanshi, Nishant Ramakantrao Katneshwarkar,EM/S. Lemax Lawyers & Co., Advs. for the appearing parties.

Respondent-in-person.

The Judgment of the Court was delivered by

M. R. SHAH, J.F1. Transfer Petitions (Civil) Nos. 87-101 of 2014 are allowed andWrit Petition Nos. 3783 of 2013 – Dr. S. K. Toshniwal Educational Trust’sVidarbha Institute of Pharmacy vs. The State of Maharashtra & Ors.,W.P. No. 3945 of 2013 – Young Engineer’s Education Society vs. TheState of Maharashtra & Ors. pending in the High Court of Judicature atGBombay, Nagpur Bench, Nagpur, W.P. No. 4992 of 2013 – The ShirpurEducation Society & Anr. vs. The State of Maharashtra & Ors., W.P.No. 5104 of 2013 – Shri Bhagwan College of Pharmacy vs. The Stateof Maharashtra & Ors., W.P. No. 5150 of 2013 – Kiran & Ors. vs. TheState of Maharashtra & Ors., W.P. No. 5681 of 2013 – YashodabaiDagadu Saraf Charitable Trust & Anr. vs. The State of Maharashtra &HOrs., W.P. No. 5914 of 2013 - Nagaon Education Society’s Institute of Pharmacy, Nagaon vs. The State of Maharashtra & Ors. pending in theHigh Court of Judicature at Bombay Bench at Aurangabad, W.P. No.19253 of 2013 – Aldel Education Trust vs. All India Council for TechnicalEducation, W.P. 19254 of 2013 – Shikshan & Krushi Vikas PratishthanMedshingi vs. All India Council for Technical Education & Ors., W.P.19255 of 2013 – K.B.H.S.S. Trust vs. All India Council for TechnicalEducation & 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 atBombay Bench at Aurangabad, W.P. No. 25857 of 2013 – St. Mary’sGroup of Institutions Hyderabad vs. The Pharmacy Council of India &Ors., W.P. No. 26077 of 2013 - B. Sridhar & Ors. vs. The PharmacyCouncil of India & Ors., W.P. No. 26286 of 2013 – St. Mary’s Group ofInstitutions Guntur vs. The Pharmacy Council of India & Ors. pendingin the High Court of Judicature at Andhra Pradesh at Hyderabad andW.P. 1388 of 2013 – Kashi Institute of Pharmacy v. Union of India &Ors. pending in the High Court of Judicature at Allahabad, LucknowBench, Lucknow are transferred to this Court.

2. Leave granted in the Special Leave Petitions.

2. Leave granted in the Special Leave Petitions.

3. As common question of law and facts arise in this group ofcases, all these cases are being decided together by this commonjudgment and order.

4. In all these petitions, respective respondent-Collegesapproached the respective High Courts with the grievance regardingactions of approval of the second shift by the Pharmacy Council of India(hereinafter referred to as the PCI) and restriction on increasing theintake capacity of students for various pharmacy courses. Since therespective respondent Colleges increased the intake of students, basedupon the requisite permission/approval obtained from the All India Councilof Technical Education (hereinafter referred to as the AICTE), therespective High Courts have allowed the colleges to increase/continuewith the increase in intake. The respective High Courts have concludedthat AICTE is the supreme authority between the two bodies, namely,AICTE and PCI and the decision of AICTE will prevail over the decisionof PCI. That, by the interim orders, the High Court allowed the Institutionsto continue with the increased number of intake as approved/permittedby AICTE. That, in some of the cases, such interim orders have beenmade absolute. Therefore, the issue involved in the present batch of AB

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Acases is regarding the applicability of the Pharmacy Act, 1948 (hereinafterreferred to as the Pharmacy Act) or the All India Council of TechnicalEducation Act, 1987 (hereinafter referred to as the AICTE Act) inrelation to the subject of Pharmacy, including approval of courses ofstudy, minimum standards of education required for qualification as aPharmacist, registration as a Pharmacist, regulation of future professionalBconduct etc.

SUBMISSIONS OF PCI

5. Shri Maninder Singh, learned Senior Advocate appearing onbehalf of PCI has vehemently submitted the following arguments:

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5.1 That having regard to the statutory scheme contained in thePharmacy Act, which is a complete code by itself dealing with the subjectof pharmacy, the jurisdiction for regulating the standards of education inthe subject of pharmacy and subsequent professional conduct ofpharmacists vests entirely in the PCI and AICTE does not have anyDjurisdiction or power in this behalf.

5.2 That, as such, the issue involved in the present batch of casesis now not res integra and is clearly covered by the decision of thisCourt in the case of AICTE v. Shri Prince Shivaji Maratha BoardingHouse’s College of Architecture (2019) SCC Online SC 1445 = (2019)E16 SCALE 421. It is submitted that, in the said case, while dealing withan identical statutory scheme in the case of Council of Architectureconstituted under the Architects Act, 1972 , this Court has held that evenwhen the definition of “technical education” in Section 2(g) of the AICTEAct also uses the word “architecture”, the said word would have to bedropped from the definition of “technical education” and shall be treatedFas inapplicable in cases where AICTE imports its regulatory framework.It is further submitted that, in that case, it is held that insofar as recognitionof degrees and diplomas of architecture education is concerned, theArchitecture Act, 1972 would prevail and that AICTE shall not be entitledto impose any regulatory measure in connection with the degrees andGdiplomas in the subject of architecture. Heavy reliance has been placedupon paragraphs 67 to 70 of the said decision.

That, in the said decision, this Court considered the entirelyidentical statutory scheme contained in the Architects Act, 1972 andtherefore the same would squarely apply for interpretation of the PharmacyAct as well. It is submitted that even in the case of pharmacy, the standH

of AICTE is based solely upon the user of the word “pharmacy” in thedefinition of “technical education” in Section 2(g) of the AICTE Act. Itis submitted that having regard to the law laid down by this Court in theaforesaid decision, as well as the statutory scheme under the PharmacyAct, the said word “pharmacy” would deserve to be dropped from thedefinition of “technical education” under Section 2(g) of the AICTE Actand would deserve to be held to be inapplicable in relation to the regulatorymeasures for prescribing minimum standards for education in the fieldof pharmacy.

5.3 That even otherwise and having regard to the statutory schemeunder the Pharmacy Act, which is a complete code and a special law inrelation to subject of pharmacy, PCI is empowered to not only regulatethe profession of Pharmacy, but also the educational institutions fromwhich persons may obtain the qualification as a pharmacist and thatAICTE 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, underthe Pharmacy Act, the PCI has been constituted as a body empoweredto regulate the education and profession of Pharmacy in India. It issubmitted that PCI has been empowered to determine and enforce thequalifications required for a person to practice as Pharmacist in India,including approving courses of study and institutions which may offersuch courses of study to enable one to practice the profession of apharmacist. Relying upon the Statement of Objects and Reasons of thePharmacy Act, it is vehemently submitted by the learned Senior Advocateappearing for PCI that PCI is supposed to prescribe the minimumstandards of education and approve courses of study for pharmacists.

5.5 That pharmacy is one of the several disciplines/subjects wherethe Legislature has laid down that for imparting education in that subject,the minimum standards are to be prescribed by an autonomous statutorybody comprising of eminent professionals in the field. It is submitted thatthey not only prescribe the standard of education of different courses inthe discipline/subject, they also lay down eligibility conditions for studentsas well as teachers, course content, standards for evaluation ofexamination etc. It is submitted that they also approve the courses in thesubject in colleges/institutions on the basis of the laid down norms byverification by inspections. It is submitted that the law also deals with AB

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Athe registration of the professionals in that discipline as well as theirsubsequent conduct as registered professionals.

5.6 That it is very much important and/or necessary that theautonomous statutory authority which is made obliged to supervise andmonitor the conduct of professionals by the Legislature in a particularBdiscipline is also given a free hand to decide about the standards ofeducation, approval of courses/institutions evaluation of standards ofexamination and thereafter grant of registration.

5.7 That the Legislature has clearly envisaged only one autonomousstatutory authority to undertake all these integrated functions and it isCimpossible to conceive that in the same very occupied field, anotherstatutory authority, seeks to assume/usurp jurisdiction thereby creatingunsavory practical problems, conflicts and inconsistencies, therebydefeating 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.DIt is submitted that it has been exhaustively dealt with by the Parliamentthrough the Pharmacy Act which exhaustively covers all areas inclusiveof approval of courses, laying down course content, eligibility conditionsfor students as well as teachers, evaluation of standards of examination,grant of registration, taking action for any infamous conduct etc. It issubmitted that this entire legislative objective is achieved through theEPharmacy Act and the statutory rules and regulations made thereunder.

5.9 That Section 10 of the Pharmacy Act empowers the PCI toframe Education Regulations prescribing the minimum standards ofeducation required for qualification as a pharmacist. It is submitted thatas per Section 10(2), such Education Regulations may prescribe –F

(a) the nature and period of study and of practical training to beundertaken before admission to an examination; (b) the equipment and facilities to be provided for studentsundergoing approved courses of study; G(c) the subjects of examination and the standards therein to beattained; (d) any other conditions of admission to examinations.

5.10 That the power to approve courses of study and examinationis contained in Section 12 of the Pharmacy Act. It is submitted thatHunder this provision, any “authority” in a State that is empowered to conduct a course of study in pharmacy may apply to the Central Councilfor approval of the course in accordance with the Education Regulations.It is further submitted that likewise, any authority which conducts anexamination in a State for pharmacy may apply to the PCI for approvalof such examination. It is submitted that a student who has passed/completed an approved course and passed an approved examinationmay therefore be registered as a Pharmacist, subject to meeting otherrequirements. It is submitted that therefore, under the Pharmacy Act,the approval of PCI in conducting any course of pharmacy is mandatoryand, in the absence of the same, no student can be awarded the degreeor diploma for such a course which makes him entitled for registrationas a pharmacist to practice the profession of pharmacy in the country.It is submitted that Section 12(1) of the Pharmacy Act empowers thePCI to grant approval to an Institution which conducts a “course ofstudy” for pharmacist. It is submitted that, as per Section 12, an applicationhas to be made to the Central Council seeking approval which aftersuch enquiry, as it thinks fit to make, that the said course of study is inconformity with the Education Regulations envisaged under Section 10prescribing the minimum standard of education required for qualificationas a pharmacist, shall declare the said course of study for the purpose ofadmission to be an approved examination for pharmacists.

5.10.1 That Section 13 of the Pharmacy Act also empowers theCentral 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 toappoint inspectors to inspect any institution which provides an approvedcourse of study or those institutions which apply for approval of courseof study or examination.

5.10.3 That Section 29 deals with the preparation and maintenanceof a register of pharmacists. Section 35 provides for entry of additionalqualifications 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 thereforethat PCI does not just regulate the provisions itself, but also plays a vitalrole in regulating entry into the profession by approving the courses andexamination which constitute appropriate qualifications to be registeredas a pharmacist under Section 32(2). It is submitted that under Section42 of the Pharmacy Act, a person may not practice the profession of AB

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Apharmacy unless he or she is registered as a pharmacist in accordancewith the Pharmacy Act and Section 42(2) is a penal provision whichstates that any person who is not a registered pharmacist and contravenesSection 42(1) shall be punishable with imprisonment for a term whichmay extend to six months, or with fine not exceeding one thousand rupeesor with both.B

5.11 That in exercise of powers vested in it under the PharmacyAct, the PCI has framed a number of Regulations for prescribingminimum standards of education as well as regulating the subject ofpharmacy in India, including:- Ca. Education Regulations, 1991;

b. Pharm. D. Regulations, 2008;

c. Minimum Qualifications for Teachers in Pharmacy InstitutionsRegulations, 2014;

d. Bachelor of Pharmacy (B. Pharm) Course Regulations, 2014; D

e. Master of Pharmacy (M.Pharm) Course Regulations, 2014;

f. Bachelor of Pharmacy (Practice) Regulations, 2014;

E5.12 That the aforesaid statutory scheme clearly demonstratesthat the field of Pharmacy is fully occupied with all details and is allpervasive. It is submitted that it is fully covered and governed not onlyby the provisions of the Pharmacy Act, but also supplemented by thestatutory Rules and statutory Regulations made thereunder; therebyproviding a complete code on the subject of Pharmacy.F

5.13 That the legislative intent in enacting the Pharmacy Act wasto ensure that there is seamless regulation of the profession, both interms of the qualifications required to be registered as a pharmacist andthe actual practice of pharmacy as a profession. It is submitted that thesame scheme has been adopted by the Parliament with respect to, interGalia, 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 dealingwith the subject/field of pharmacy.

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5.14 That, on the other hand, the AICTE Act is merely to ensurethat the standards are maintained in the area of technical education andthat it is not intended to take over all aspects of the regulation of specializededucation in India for which specialized regulatory bodies already operateunder their respective laws. It is submitted that a perusal of the Statementof Objects and Reasons of the AICTE Act demonstrates that AICTEhad been for assisting and guiding the Central Government in relation topolicies on the subject of engineering and similar technical subjects. Thatit has not been created to dilute, in any manner whatsoever, the autonomyand authority of other statutory bodies. It is submitted that it does notoversee any course which requires registration of professionals and theirconduct. 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 legislativeintent behind the AICTE Act has been explained by this Court in thecase of Bharathidasan University v. All-India Council for TechnicalEducation (2001) 8 SCC 676. Heavy reliance has been placed onParagraphs 8 and 10.

5.16 That therefore the legislative intent behind the AICTE Act istherefore clear. It is not intended to replace or supersede existingregulatory bodies, but rather was intended to focus on coordinating andimproving the standards of technical education across the country in anadvisory capacity. It is submitted that therefore in the regulation ofPharmacy education, PCI continues to be the regulator of the educationalinstitutions under the Pharmacy Act. That in relation to regulation ofeducational institutions in the field of Pharmacy, the provisions of thePharmacy Act being a Special Law dealing with the subject of“Pharmacy” would prevail over the AICTE Act, being a General Lawfor “technical education”.

5.17 That even otherwise the Pharmacy Act being a special lawon the subject of Pharmacy would prevail over the AICTE Act. It issubmitted that it is a settled position of law that a special law dealingwith any subject would prevail over the general law which may be dealingwith the said subject only incidentally. That this principle of law is alsoenshrined in the maxim generalia specialibus non derogant. It issubmitted that it is an exception to the principle that a latter statute wouldprevail over an earlier statute. It is submitted that therefore an earlierSpecial Law would prevail over a later General Law. In support of the AB

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Aabove submissions, heavy reliance has been placed upon the decisionsof this Court in the cases of UPSEB v. Hari Shanker Jain (1978) 4SCC 16; LIC of India v. D.J. Bahadur (1981) 1 SCC 315 and YakubAbdul Razak Memon v. State of Maharashtra (2013) 13 SCC 1.

5.18 Relying upon the above decisions, it is urged that even inBcase of any conflict, the Pharmacy Act being a special law dealing withthe 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 basedon the principle of ‘implied repeal’ are entirely misconceived andCerroneous. It is submitted that it has been held by this Court in the caseof Municipal Council v. T.J. Joseph (1964) 2 SCR 87 that when twolaws are made by the Legislature at different points of time, dealing withthe same subject matter, there is no presumption that the later law impliedlyrepeals the earlier law. Heavy reliance is also placed upon the decisionof this Court in Byram Prestonji Gariwala v. Union Bank of IndiaD(1992) 1 SCC 31. That in the aforesaid decision, it is held by this Courtthat any fundamental change/alteration in law cannot be presumed byapplying the principle of “implied repeal”. That it is held that anyfundamental change/alteration in law, can only be carried out by explicitwords, and not “by a sidewind”. That therefore, in the aforesaid decision,Ethe contention based on the principle of “implied repeal” has beenrejected.

5.19.1 That therefore having regard to the Statement of Objectsand Reasons as well as the scheme of the AICTE Act, as also explainedin para 8 of the judgment in Bharthidarsan case (supra), it is abundantlyFclear that the Parliament has not intended to fundamentally alter theexisting regime where – from the stage of prescribing the minimumstandards of education, approving the courses of study to the stage ofregistration and future monitoring of professional conduct of pharmacistthe Pharmacy Act vests the PCI with such jurisdiction and power.

G5.19.2 That as such the AICTE Act cannot be treated to have, inany manner whatsoever, affected the jurisdiction and power of the PCIin this behalf. It is submitted that therefore AICTE Act cannot be held tohave “implied repealed” the Pharmacy Act and any contention to thecontrary would deserve to be rejected by this Court.

5.19.3 That in the absence of any express or implied legislativeHintent, the AICTE Act cannot be held to have repealed the Pharmacy Act and on the contrary, the provisions of the Pharmacy Act, being aspecial law dealing comprehensively with the subject of Pharmacy, wouldprevail over the AICTE Act.

5.20 This Court while disposing of SLP (c) Diary No. 24798 of2018 – Progressive Education Society’s College of Pharmacy v. Stateof Maharashtra (dated 24.07.2018) has observed that “it is desirablethat the Government of India should revisit the definition in Section 2(g)of the AICTE Act. Whether there could have been inclusion of pharmacywhen it was already converted by the Pharmacy Act”. It is submittedthat in fact thereafter in a inter-Ministerial meeting held on 30.09.2019between the Minister of Health and Family Welfare, Government ofIndia and Minister of HRD, Government of India, a decision has beentaken that the word “pharmacy” would be deleted from the definition of“technical education” under the AICTE Act. However, the saidamendment is still to be carried out. It is submitted that even the proposedHigher Education Commission of India Bill, 2019, which seeks to repealthe UGC and AICTE Acts and the Allied and Healthcare ProfessionsBill, 2018, which seeks to bring into existence a regulatory mechanismfor 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 dutiesand activities under special enactments.

5.21 That the submission of the respondent Colleges and theAICTE Act to the effect that PCI can regulate only the grant of Diplomain Pharmacy and not the further courses/qualifications, is absolutelyerroneous, misconceived and unsustainable in law in view of the specificprovisions under Sections 12 and 35 of the Pharmacy Act. It is submittedthat Sections 12 and 35 makes it abundantly clear that it is all courses inrelation to pharmacy which get covered by the scheme of the PharmacyAct.

5.22 That the primary reason of conflict between the AICTE andPCI was on account of AICTE permitting colleges to double the intakecapacity for courses where the intake capacity had been fixed by thePCI, and also on account of AICITE permitting the second shift (eveningclasses) contrary to the regulations of PCI.

5.23 That even recently a public notice has been issued by theAICTE which informs that AICTE is still inviting applications for grant A

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Aof approval for courses of Architecture, despite the decision of this Courtin Shri Prince Shivaji Maratha Boarding House’s College ofArchitecture (supra). That therefore even the said public notice is inthe teeth of this Court’s judgment and order and the same is nothing butdeliberate disobedience of the decision of this Court.B5.24 Making the above submissions and relying upon the abovedecisions, it is prayed to allow the present petitions and hold that the PCIpossesses the jurisdiction and power to regulate the education as well aspractice of profession of pharmacy in relation to all its aspects and AICTEwould not have any jurisdiction or power in that regard. It is also prayedto hold that the word “pharmacy” in Section 2(g) of the AICTE ActCdeserves to be treated as inapplicable in relation to the regulation ofeducation and practice of profession in pharmacy.

SUBMISSIONS OF AICTE

6. Shri Harish Panday, learned counsel appearing on behalf of theDAICTE has raised the following submissions:

6.1 That AICTE was originally set up in the year 1945 by aGovernment resolution as a National Expert Body to advise Central andState Government for ensuring the coordinated development and technicaleducation in accordance with approved standards and was playingEeffective role. It is submitted that taking into account the growing erosionof standard and pursuant to recommendation, a National Working Groupwas set up in November 1985 to look into the role of AICTE. In order toenable the AICTE to play its role effectively, it was recommended thatcouncil should be given the statutory power. The National Policy ofEducation 1986 also stipulated that Council will be vested with statutoryFpower. A Bill was introduced to ensure proper planning and coordinateddevelopment of Technical Education system in the country. It is submittedthat the AICTE Act has been enacted with an object to provide for theestablishment of an AICTE with a view to proper planning andcoordinated development of the technical education system throughoutGthe country; the promotion of qualitative improvement of such educationin relation to planned quantitative growth and the regulation and propermaintenance of norms and standards in the technical education systemand for matters connected therewith. It is submitted that the power andfunctions assigned to AICTE is not only to prescribe norms and standardsbut to inspect, approve and withhold recognition of programmes andHinstitutes.

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

6.3 That so far as the Pharmacy Act is concerned it is a pre-Constitution Act which was enacted in the year 1948 with the primaryobject to make better provisions for regulation of the profession andpractice of pharmacy and for that purpose to constitute Pharmacy Council.It is submitted that perusal of the object, aim and provisions of thePharmacy Act makes it clear that the Pharmacy Act which is a priorAct has been primarily enacted to regulate the professionals only. It issubmitted that in the year 1987, AICTE has been given the statutorystatus with the sole authority to regulate and prescribe minimum normsand standard for Technical Education and technical instructions as definedunder the AICTE Act. It is submitted that after coming into AICTE Act,it is entirely within the domain of the AICTE Council to grant approval toa new course or to recognize a new institute.

6.4 That the Legislature in its own wisdom has included Pharmacyin the definition of ‘technical education’ in the AICTE Act and givenAICTE powers to maintain the norms and standard of technical educationfor proper and coordinated development of technical education.

6.5 That the language of AICTE Act is plain and unambiguousand therefore the court shall not interpret the same in a different manneronly because a harsh consequence arising therefrom. Reliance is placedupon the case of Nasiruddin v. Sita Ram Agarwal (2003) 2 SCC 577.

6.6 That deleting the word “Pharmacy” from AICTE Act whichhas specifically been incorporated by the Legislature will amount tolegislate which is not permissible, as held by this Court in the case ofUnion of India v. Deoki Nandan Aggarwal (1992) Supp. 1 SCC 323.It is submitted that, as held by this Court, the courts cannot rewrite,recast or reframe the legislation.

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A6.7 That as held by this Court in the case of Ajeet Singh Singhviv. State of Rajasthan 1991 Suppl. (1) SCC 343, the courts should alwayspresume that the Legislature inserted every part of the statute for apurpose and the legislative intention is that every part of the statuteshould have effect. It is further submitted that as held by this Court inthe case of Ajoy Kumar Banerjee v. Union of India (1984) 3 SCCB127, the later law will prevail. It is submitted that therefore the AICTEAct, which is a later Act, shall prevail over the Pharmacy Act.

6.8 That Article 372 of the Constitution provides thatnotwithstanding the repeal by the Constitution of the enactments referredto in Article 395, all the laws that were in force in the territory of IndiaCimmediately before the commencement of the Constitution shall continueto remain in force until altered or repealed or amended by a competentParliament under Entry-66 of List-I (Union List). It is submitted thatAICTE Act has been enacted by the Parliament under the Union List,which covers the same field which was earlier covered by the 1948 Act,Dnamely, to lay down norms and standards for studies in the field ofpharmacy. It is submitted that therefore in terms of Article 372 of theConstitution, the 1987 Act to the extent it covers the same field as coveredby the existing law i.e. 1948 Act, will prevail and the provisions of the1948 Act to that extent stand repealed/altered.E7. So far as the reliance placed upon by the learned counsel forthe petitioner on the decision of this Court in the case of Bharthidarsan(supra) is concerned, it is submitted that the said decision shall not beapplicable at all to the facts of the case on hand. It is submitted that thedispute was with regard to the powers of UGC and AICTE vis.a.vis theUniversities and in the definition of ‘technical institution’ under SectionF2(h) of the AICTE Act, Universities have been excluded and thereforethis Court held that AICTE has no jurisdiction over the Universities. It issubmitted that whereas Pharmacy has been purposely included in thedefinition and under various sections of AICTE Act.

7.1 So far as the reliance placed upon the decision of this Court inGthe case of Shri Prince Shivaji Maratha Boarding House’s Collegeof Architecture (supra) by the learned Senior Advocate appearing onbehalf of PCI is concerned, it is submitted that the reliance placed on thesaid decision is mis-placed as it primarily relies on the decision of thisCourt in the case of Association of Management of Private CollegesHv. All Indian Council for Technical Education (2013) 8 SCC 385

without appreciating the fact that the issue involved in that aforesaidjudgment has been referred to a larger Bench.

7.2 That even otherwise there is a difference in the provisionsbetween the Architect Act and the Pharmacy Act.

7.3 That the AICTE Act, 1987 is a later Act than the PharmacyAct, 1948 and is a special enactment for laying down norms and standardsfor courses, curriculum, physical and instructional facilities, staff pattern,staff qualification, quality instructions, assessment and examination intechnical education as well as granting approval for starting new technicalinstitution, introduction of new courses or variation in intake in the existingcourses. It is submitted that therefore on the principle of “implied repeal”the provisions of AICTE Act would prevail over the Pharmacy Act.

7.4 That pursuant to order passed by this Court in the case ofProgressive Education Society’s College of Pharmacy (supra) in ameeting between Minister of Health and Family Welfare and Ministerof Human Resource Development it was decided to revisit the definitionof ‘technical education’ in the AICTE Act by deleting “Pharmacy” fromthe definition of ‘technical education contained in Section 2(g) of theAICTE Act. It is submitted that, however, it was decided that till thetime it was amended both councils will inspect jointly for the purpose ofgrant of Approval and both parties will withdraw cases filed by them. Itis submitted that both councils will regulate simultaneously.

7.5 Making the above submissions, it is prayed to answer thequestions/issue involved in favour of AICTE and hold that the provisionsof AICTE Act would prevail over the Pharmacy Act.

OTHER SUBMISSIONS

8. Learned counsel appearing on behalf of respondent No. 5 inSLP (C) Nos. 4124-4127 of 2016, as such, supported the stand of AICTE.It is submitted that attempts should be made that both the Pharmacy Actand AICTE Act are harmoniously construed and the attempts should bemade to reconcile both the provisions.

8.1 Learned counsel appearing on behalf of respondent No. 5 hassubmitted that respondent No. 5 does not dispute the authority of PCI toprescribe, approve and regulate the course of study and examinationprescribed to register as pharmacist. It is submitted that, however, thePCI has limited role and powers and also its powers are limited to the A

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ADiploma in Pharmacy and not other courses. It is submitted that thePharmacy Act does not give direct control to the PCI over the Institutions.It is submitted that such a lacuna is filled by the AICTE Act.

8.2 It is further submitted that insofar as the seat intake isconcerned, the Education Regulation, 1991 lays down some of theBinfrastructural facilities required for the diploma courses in Pharmacycourse. It is submitted that AICTE is empowered to decide on seatintake increase on fulfillment of infrastructural requirements. It issubmitted that therefore when there will be full compliance on theinfrastructural requirements laid down in the Education Regulations, stillAICTE can insist on any other compliance as per its own norms. It isCsubmitted that for the purpose of regulating the profession of pharmacy,course for study and examination, PCI will have supremacy and on othermatters AICTE and its regulations would prevail. It is submitted thatinsofar as the profession of pharmacy is concerned, the Pharmacy Actis a Special Act. It is submitted that insofar as regulating the technicalDinstitution, AICTE is the Special Act and therefore the same shall prevail.8.3 Making the above submissions, it is prayed that the intake ofthe seats approved by the AICTE in respect of respondent No. 5Institution may kindly be protected.

9. Learned counsel appearing on behalf of the respectiveEInstitutions have further submitted that by interim orders which in somecases were final, the respective institutions are permitted to increaseintake as per the decision of AICTE and the students have studied andthe interim orders were passed by the High Courts in the interest ofstudents, therefore, whatever be the outcome of the respective cases,Fthe interest of the students and the institutions may be protected.

10. In rejoinder, it is submitted by the learned Senior Advocateappearing on behalf of the PCI that as such the provisions of theArchitects Act, 1972 and the provisions of the Pharmacy Act, 1948 aresimilar and para materia, except the non-obstinatem clause in SectionG17. It is submitted that, however, a bare perusal of Section 17 of theArchitects Act makes it abundantly clear that the said provision does nothave any relation or bearing whatsoever with the power of the Councilof Architecture to prescribe the minimum standards of education in thefield of architecture and the said non-obstinate provision is only withregard to the registration i.e. to say for practicing architecture, registrationHunder the Architects Act would be mandatory. It is submitted that therefore non-existence of any such similar provision in the PharmacyAct is of no consequence or impact for adjudication of the issue involvedin the present case.

11. Now, so far as reliance placed upon Article 372 of theConstitution by the learned Advocate appearing on behalf of the AICTE,it is vehemently submitted by Shri Maninder Singh, learned SeniorAdvocate appearing on behalf of the PCI that even as per Article 372 ofthe Constitution, unless a pre-constitutional statute is specifically repealed,it continues to remain in operation. That, in the present case, in theabsence of any repeal of the Pharmacy Act, 1948, it continues to remainin operation in India.

OUR CONSIDRATION:

OUR CONSIDRATION:

12. As observed hereinabove, the issue involved in the presentbatch of cases is regarding the applicability of the Pharmacy Act, 1948or the AICTE Act, 1987 in relation to subject of pharmacy including theapproval of courses of study, minimum standards of education requiredfor qualification as a pharmacist, registration as a pharmacist, regulationof future professional conduct etc. In other words, the question is as towhether the mandate of the PCI or that of the AICTE would prevail onthe question of granting approval and related matters to any institutionfor conducting pharmacy education course, if there is any conflict/contradictions in the opinions of these two bodies. The issue is as towhich body, i.e. AICTE or PCI would primarily be responsible forregulation of pharmaceutical regulation in India.

13. While answering the issues/questions involved in the presentbatch of petitions, first of all, what is required to be considered is whetherthe Pharmacy Act which is a prior Act to that of AICTE Act can be saidto be a special Act with special provisions in the field of Pharmacy?The Statement of Objects and Reasons for the Pharmacy Act is asunder:

“It is desirable that, as in most other countries, only personswho have attained a minimum standard of professional educationshould be permitted to practise the Profession of Pharmacy. It isaccordingly proposed to establish a Central Council of Pharmacy,which will prescribe the minimum standards of education andapprove courses of study and examinations for Pharmacists, andProvincial Pharmacy Councils, which will be responsible for the AB

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Amaintenance of provincial registers of qualified pharmacists. It isfurther proposed to empower Provincial Governments to prohibitthe dispensing of medicine on the prescription of a medicalpractitioner otherwise than by, or under the direct and personalsupervision of, a registered pharmacist.”

BAs per the Preamble of the Pharmacy Act, 1948, the PharmacyAct has been enacted to make better provision for the regulation of theprofession and practice of Pharmacy and for that purpose to constitutePharmacy Councils. If we consider the relevant provisions of thePharmacy Act, it covers all areas inclusive of approval of courses, layingdown course content, eligibility conditions for students as well as teachers,Cevaluation of standards of examination, grant of registration, entry ofhigher qualification, taking action for any infamous conduct etc. Therelevant provisions in the Pharmacy Act are Sections 10, 12, 13, 16, 29,32, 35, 36 and 42.

13.1 Section 10 of the Pharmacy Act empowers the PCI to frameDEducation Regulations prescribing the minimum standard of educationrequired for qualification as a pharmacist. As per sub-section (2) ofSection 10, such Education Regulations may prescribe:

a) the nature and period of study and of practical training to beundertaken before admission to an examination; E

b) the equipment and facilities to be provided for studentsundergoing approved courses of study;

c) the subjects of examination and the standards therein to beattained;Fd) any other conditions of admission to examinations.

As per Section 12 of the Pharmacy Act, any “authority” in aState that is empowered to conduct a course of study in pharmacy mayapply to the Central Council for approval of the course in accordancewith the Education Regulations. Likewise, any authority which conductsGan examination of a State for pharmacy may apply to the PCI for approvalof such examination. A student who has passed/completed an approvedcourse and passed an approved examination can only be registered as aPharmacist subject to meeting other requirements. Section 13 of thePharmacy Act empowers the Central Council to withdraw approvalaccorded to the ‘course of study’ and ‘examination’ for failure to complyH

with the prescribed norms. Section 16 of the Pharmacy Act empowersthe Executive Committee to appoint inspectors to inspect any institutionwhich provides an approved course of study or those institutions whichapply for approval of course of study or examination. Section 29 dealswith preparation and maintenance of a register of pharmacists. Section35 provides for entry of additional qualifications in the register in relationto any registered pharmacist. Section 36 provides for the removal of anyperson from the register, either permanently or for a temporary period.As per Section 42 of the Pharmacy Act, a person may not practice theprofession of pharmacy unless he or she is registered as a pharmacist inaccordance with the Pharmacy Act. Sub-section (2) of Section 42 is apenal provision which states that any person who is not a registeredpharmacist and contravenes sub-section (1) of Section 42 shall bepunishable with imprisonment for a term which may extend to six months,or with fine not exceeding one thousand rupees or with both.

13.2 In exercise of powers vested in the Pharmacy Act, PCI hasframed a number of Regulations for prescribing minimum standards ofeducation 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 InstitutionsRegulations, 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;

Thus, considering the various provisions of the Pharmacy Actand the regulations made therein, it can be said that the Pharmacy Act isa complete Code in itself in the subject of pharmacy. The PCI has beenconstituted as a body empowered to regulate the education and professionof pharmacy in India. It cannot be disputed that the subject of pharmacyis a special and not a general subject. From the relevant provisions ofthe Pharmacy Act, more particularly, the provisions referred tohereinabove, the Pharmacy Act exclusively covers all areas inclusive ofapproval of courses, laying down course content, eligibility conditions A

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Afor 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 toensure that there is seamless regulation of the profession. To carry outthe objective and purpose for enacting the Pharmacy Act, the LegislatureBhas established under the Statute the autonomous statutory authority i.e.Pharmacy Council of India. Thus it can be said that in the field ofpharmacy, the Pharmacy Act is a special law.

13.3 On the other hand, the AICTE Act can be said to be a generallaw applicable to the technical institutions and technical education. If weCconsider the Statement of Objects and Reasons for the AICTE Act, it isspecifically stated that the AICTE Act was originally set up by aGovernment Resolution as a National Expert Body to advise the Centraland State Government for ensuring the coordinated development oftechnical education in accordance with the approved standards. It is asDunder:

“1. The All India Council for Technical Education (AICTE)was set up in 1945 by a Government resolution as a NationalExpert body to advice the Central and the State Governments forensuring the co-ordinated development of technical education inEaccordance with approved standards. During the first threedecades the Council functioned quite effectively and there wasphenomenal development of technical education in this period.However, in recent years, a large number of private engineeringcolleges and polytechnics have come up in complete disregard ofthe guidelines, laid down by the AICTE. Most of these institutionsFhave serious deficiencies in terms of even the rudimentaryinfrastructure necessary for imparting proper education andtraining. Barring some exceptions, there is scant regard formaintenance of educational standards.

2. Taking into account the growing erosion of standards, theGCouncil at its meeting held in 1981 came to the conclusion that astage had been reached when it should be vested with statutorypowers to regulate and maintain standards of technical educationin the country. In pursuance of these and other recommendations,a National Working Group was set up in November, 1985 to lookHinto the role of the AICTE. The National Working Group recommended that in order to enable the AICTE to play its roleeffectively, it shall have to be vested with necessary statutoryauthority. The National Policy on Education, 1986, also stipulatedthat the AICTE will be vested with statutory authority for planning,formulation and the maintenance of norms and standards,accreditation, funding of priority areas, monitoring and evaluation,maintaining parity of certificates and awards and ensuring the co-ordinated and integrated development of technical and managementeducation.

3. The Bill seeks to provide statutory powers to the All IndiaCouncil for Technical Education to ensure:

(i) proper planning and co-ordinated development of thetechnical education system throughout the country;

(ii) promotion of qualitative improvement of technicaleducation in relation of planned quantitative growth, and

(iii) regulation of the system and proper maintenance of normsand standards.

Accordingly, the powers and functions assigned to theAICTE, inter alia, provide laying down norms and standards forprogrammes and institutions, giving approval for setting up oftechnical institutions, prescribing guidelines for admission ofstudents and the charging of fees, and inspecting and evaluatinginstitutions periodically with a view to maintaining standards andto provide recognition or withhold recognition of programmes andinstitutions. As part of this overall co-ordination and developmentresponsibilities, the AICTE will also give grants to institutions foridentified developmental purposes. In addition, the AICTE willpromote innovation, research and development, linkages withindustry and greater access to technical education by women,handicapped, and the weaker sections of the society.”

The preamble of the AICTE Act is as under:

“An Act to provide for the establishment of an All IndiaCouncil for Technical Education with a view to the proper planningand co-ordinated development of the technical education systemthroughout the country, the promotion of qualitative improvementsof such education in relation to planned quantitative growth and A

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Athe regulation and proper maintenance of norms and standards inthe technical education system and for matters connectedtherewith.”

Thus, it can be said that the AICTE Act can be said to be ageneral law with respect to the technical education. It is true that in theBdefinition, as per Section 2(g) of the AICTE Act, “technical education”also means “pharmacy”. However, the same shall be dealt withhereinbelow.

14. Now having held that the Pharmacy Act is a special Act dealingwith the special subject of pharmacy, the next question which is posedCfor consideration of this Court is whether in the field of pharmacy, thePharmacy Act would prevail or the AICTE Act? The next question iswhether in the profession of pharmacy, the PCI shall have the exclusivejurisdiction or the AICTE?

14.1 While answering the question whether the Pharmacy ActDwhich is a special Act (as held hereinabove) shall prevail or the AIOCTEAct which is a general law (as held hereinabove) and the submissionson behalf of AICTE that as the AICTE Act is subsequent law and in thedefinition of “technical education” contained in Section 2(g), it includes“pharmacy” also, therefore, being a subsequent law, the same shall prevailas there will be a implied repeal of the Pharmacy Act, few decisions ofEthis Court are required to be referred to and considered.

14.2 In the case of Hari Shankar Jain (supra), this Court hadan occasion to consider the maxim “Generalia specialibus nonderogant”. The relevant portions of paragraphs 8 and 9 are as under:

“8. The maxim “Generalia specialibus non derogant” is quiteFwell-known. The rule flowing from the maxim has been explainedin Mary Seward v. Owner of the “Vera Cruz” [(1884) 10 AC59, 68] as follows:

“Now if anything be certain it is this, that where there aregeneral words in a later Act capable of reasonable and sensibleGapplication without extending them to subjects specially dealt withby earlier legislation, you are not to hold that earlier and speciallegislation indirectly repealed, altered, or derogated from merelyby force of such general words, without any indication of aparticular intention to do so.”Hxxxxxxxxx

9. The reason for the rule that a general provision shouldyield to a specific provision is this: In passing a special Act,Parliament devotes its entire consideration to a particular subject.When a general Act is subsequently passed, it is logical to presumethat Parliament has not repealed or modified the former SpecialAct unless it appears that the Special Act again receivedconsideration from Parliament. Vide London and BlackwallRailway v. Limehouse District Board of Works [26 LJ Ch 164 :69 ER 1048] , and Thorpe v. Adams [(1871) LR 6 CP 125] . InJ&K. Cotton Spinning and Weaving Mills Co. Ltd. v. State ofU.P. [AIR 1961 SC 1170 : (1961) 3 SCR 185 : (1961) 1 LLJ 540: (1960-61) 19 FJR 43] , this Court observed (at p. 1174):

“The rule that general provisions should yield to specificprovisions is not an arbitrary principle made by lawyers and Judgesbut springs from the common understanding of men and womenthat when the same person gives two directions, one covering alarge number of matters in general and another to only some ofthem his intention is that these latter directions should prevail asregards these while as regards all the rest the earlier directionshould have effect.”

14.3 In the case of D. J. Bahadur (supra), this Court had anoccasion to consider the conflict between the general legislation and thespecial legislation and argument of ‘implied repeal’. In the said decision,this Court took note of the following extracts from the Craies on StatuteLaw [1963 Edn., pp. 376-77]:

“49. xxxxxxxxx

“The general rule, that prior statutes are held to be repealedby implication by subsequent statutes if the two are repugnant, issaid not to apply if the prior enactment is special and the subsequentenactment is general, the rule of law being, as stated by LordSelbourne in Sewards v. Vera Cruz [Mary Sewards v. Owner ofthe “Vera Cruz”, (1884) 10 AC 59, 68] , ‘that where there aregeneral words in a later Act capable of reasonable and sensibleapplication without extending them to subjects specially dealt withby earlier legislation, you are not to hold that earlier and speciallegislation indirectly repealed, altered, or derogated from merelyby force of such general words, without any indication of aparticular intention to do so. There is a well-known rule which AB

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Ahas application to this case, which is that a subsequent generalAct does not affect a prior special Act by implication. That this isthe law cannot be doubted, and the cases on the subject will befound collected in the third edition of Maxwell is generaliaspecialibus non derogant — i.e. general provisions will notabrogate special provisions.’ When the legislature has given itsBattention to a separate subject and made provision for it, thepresumption is that a subsequent general enactment is not intendedto interfere with the special provision unless it manifests thatintention very clearly. Each enactment must be construed in thatrespect according to its own subject-matter and its own terms.”

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In the said decision, it is observed that an ‘implied repeal’ is thelast judicial refuge and unless driven to that conclusion, is rarely resortedto. It is further observed that in determining whether a statute is a specialor a general one, the focus must be on the principal subject-matter plusthe particular perspective. It is observed that for certain purposes, anDAct may be general and for certain other purposes it may be special andwe cannot blur distinctions when dealing with finer points of law. It isfurther observed that what is special or general is wholly a creature ofthe subject and context and may vary with situation, circumstances andangle of vision. Law is no abstraction but realizes itself in the livingsetting of actualities. Which is a special provision and which general,Edepends on the specific problem, the topic for decision, not the broadrubric nor any rule of thumb.

14.4 In the case of Yakub Abdul Razak Memon (supra), thisCourt again had an occasion to consider the conflict between the generalstatue and the special statute. After considering the various decisions ofFthis Court on the point, it is observed and concluded in paragraphs 1518to 1522 as under:

“1518. The principle that the latter Act would prevail theearlier Act has consistently been held to be subject to the exceptionthat a general provision does not derogate from a special one. ItGmeans that where the literal meaning of the general enactmentcovers a situation for which specific provision is made by anotherenactment contained in the earlier Act, it would be presumed thatthe situation was intended to continue to be dealt with by thespecific provision rather than the later general one.

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1519. The basic rule that a general provisions should yieldto the specific provisions is based on the principle that if twodirections are issued by the competent authority, one covering alarge number of matters in general and another to only some ofthem, his intention is that these latter directions should prevail asregards these while as regards all the rest the earlier directionsmust be given effect to.

1520. It is a settled legal proposition that while passing aspecial Act, the legislature devotes its entire consideration to apeculiar subject. Therefore, when a general Act is subsequentlypassed, it is logical to presume that the legislature has not repealedor modified the former special Act unless an inference may bedrawn from the language of the special Act itself.

1521. In order to determine whether a statute is special orgeneral one, the court has to take into consideration the principalsubject-matter of the statute and the particular perspective forthe reason that for certain purposes an Act may be general andfor certain other purposes it may be special and such a distinctioncannot be blurred.

1522. Thus, where there is inconsistency between theprovisions of two statutes and both can be regarded as special innature, the conflict has to be resolved by reference to the purposeand policy underlying the two enactments and the clear intendmentof the legislature conveyed by the language of the relevantprovisions therein. (Vide Ram Narain v. Simla Banking andIndustrial Co. Ltd. [AIR 1956 SC 614] , J.K. Cotton Spg. &Wvg. Mills Co. Ltd. v. State of U.P. [AIR 1961 SC 1170] , KumaonMotor Owners’ Union Ltd. v. State of U.P. [AIR 1966 SC 785], Sarwan Singh v. Kasturi Lal [(1977) 1 SCC 750] , U.P. SEB v.Hari Shankar Jain [(1978) 4 SCC 16 : 1978 SCC (L&S) 481] ,LIC v. D.J. Bahadur [(1981) 1 SCC 315 : 1981 SCC (L&S) 111],Ashoka Mktg. Ltd. v. Punjab National Bank [(1990) 4 SCC406 : AIR 1991 SC 855] and T.M.A. Pai Foundation v. State ofKarnataka [(2002) 8 SCC 481].”

14.5 In the case of R.S. Raghunath v. State of Karnataka (1992)1 SCC 335, this Court was considering the enforceability of special lawon the subject in spite of the general law. This Court noted the followingparagraph in Maxwell on the Interpretation of Statutes:

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“A general later law does not abrogate an earlier specialone by mere implication. Generalia specialibus non derogant,or, in other words, ‘where there are general words in a later Actcapable of reasonable and sensible application without extendingthem to subjects specially dealt with by earlier legislation, you arenot to hold that earlier and special legislation indirectly repealed,altered, or derogated from merely by force of such general words,without any indication of a particular intention to do so. In suchcases it is presumed to have only general cases in view, and notparticular cases which have been already otherwise provided forby the special Act.”

That, thereafter it is further observed and held as under:

“In Maharaja Pratap Singh Bahadur v. ThakurManmohan Dey [AIR 1966 SC 1931 : (1966) 3 SCR 663] applyingthis principle it is held that general law does not abrogate earlierspecial law by mere implication. In Eileen Louise Nicolle v. JohnWinter Nicolle [(1922) 1 AC 284] , Lord Phillimore observed asunder:

“It is no doubt a sound principle of all jurisprudence that aprior particular law is not easily to be held to be abrogated by aposterior law, expressed in general terms and by the apparentgenerality of its language applicable to and covering a number ofcases of which the particular law is but one. This as a matter ofjurisprudence, as understood in England, has been laid down in agreat number of cases, whether the prior law be an express statute… or be the underlying common or customary law of the country.

… ‘Where there are general words in a later Act capableof reasonable and sensible application without extending them tosubjects specially dealt with by earlier legislation … that earlierand special legislation is not to be held indirectly repealed, alteredor derogated from merely by force of such general words, withoutany indication of a particular intention to do so’. [Ed.: Quotingfrom Vera Cruz case, (1884) 10 AC 59, 68]’’

In Justiniano Augusto De Piedade Barreto v. Antonio VicenteDa Fonseca [(1979) 3 SCC 47 : AIR 1979 SC 984] this Court observedthat a law which is essentially general in nature may contain specialprovisions on certain matters and in respect of these matters it would be classified as a special law. Therefore unless the special law is abrogatedby express repeal or by making provisions which are wholly inconsistentwith it, the special law cannot be held to have been abrogated by mereimplication.”

15. Applying the law laid down by this Court in the aforesaiddecisions and as observed hereinabove, the Pharmacy Act is a SpecialAct in the field of pharmacy and it is a complete code in itself in the fieldof pharmacy, the Pharmacy Act shall prevail over the AICTE Act which,as observed hereinabove, is a general statute dealing with technicaleducation/institutions. Therefore, the submission on behalf of AICTEand/or concerned educational institutions that the AICTE Act is asubsequent law and in the definition of “technical education” it includesthe “pharmacy” and therefore it can be said to be an “implied repeal”,cannot be accepted. At his stage, it is required to be noted that as suchin the AICTE Act there is no specific repeal of the Pharmacy Act, moreparticularly when, as observed hereinabove, the Pharmacy Act is a SpecialAct and the subsequent enactment of AICTE Act is general and thereforethe Pharmacy Act being a Special Act must prevail. Apart from that,with regard to several aspects, there is no provision made in AICTE Actwhich are exclusively within the domain of PCI. Thus, it cannot beaccepted that there is ‘implied repeal’ of the Pharmacy Act.

16. Now the next question which is required to be considered iswhether in the field of pharmacy, PCI would have the jurisdiction orAICTE constituted under the AICTE Act which is held to be a generallaw. The Constitution and Composition of Central Council under thePharmacy Council of India is as under:

“3. Constitution and composition of Central Council.-The Central Government shall, as soon as may be, constitute aCentral Council consisting of the following members, namely :- (a) Six members, among whom there shall be at least oneteacher of each of the subjects, pharmaceutical chemistry,pharmacy, pharmacology and pharmacognosy elected by theUniversity Grants Commission from among persons on the teachingstaff of an Indian University or college affiliated thereto whichgrants a degree or diploma in pharmacy ; (b) Six members, of whom at least four shall be personspossessing a degree or diploma in, and practicing pharmacy orpharmaceutical chemistry nominated by the Central Government; A

BC

D

E

F

G

H

A

(c) One member elected from amongst themselves by themembers of the Medical Council of India.

(d) the Director General, Health Services, ex officio or ifhe is unable to attend any Meeting, a person authorized by him inwriting to do so; B

The Drugs Controller, India, ex officio or if he is unable toattend any meeting, a person authorized by him in writing to doso; (e) the Director of the Central Drugs Laboratory, exofficio; C

(f) a representative of the University Grants Commissionand a representative of the all India Council for TechnicalEducation; (g) one member to represent each State elected fromDamongst themselves by the members of each State Council, whoshall be a registered pharmacist ; (h) One member to represent each State nominated by theState Government, who shall be a registered pharmacist :”

Therefore, PCI consists of experts in the field of pharmacy andErelated 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.

16.1 On the other hand, so far as AICTE is concerned, only onemember would be from the field of pharmacy and that too representativeFof PCI. Under the circumstances, the PCI is the body of expertsconnected with the subject of pharmacy and related subjects and thereforeit will be in the larger interest and more particularly in the interest ofeducation of pharmacy that PCI shall alone have the Jurisdiction in thefield of pharmacy, rather than AICTE.

G17. The aforesaid question is also required to be viewed fromanother angle. Both, the PCI and AICTE are the creature of the statute.Therefore, it is not at all healthy that the two regulators, both beingCentral authorities, can be permitted to fight for supremacy. The fight ofsupremacy between both the regulators is unhealthy for the educationsector as well as the institutions to permit two regulators to function inH

the same field. Therefore also and more particularly when the PCI isconsisting 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 begiven the power to regulate in the field of pharmacy.

17.1 An identical question came to be considered by this Court inthe case of Shri Prince Shivaji Maratha Boarding House’s Collegeof Architecture (supra). In that case, this Court was considering thesimilar provisions in the field of architecture and whether the mandateof the Council of Architecture or that of AICTE would prevail on thequestion of granting approval and related matters to the institution forconducting architecture education course, if there is contradiction in theopinions of these two bodies. At this stage, it is required to be noted thatin the definition of ‘technical education’ in Section 2(g), ‘architecture’ isalso included like ‘pharmacy’. In that case also, the Architecture Actwas enacted prior to the AICTE Act, 1987, i.e. in the year 1972. Afterconsidering the scheme of the Architecture Act and the powers andfunction of the Council of Architecture, this Court observed and heldthat the Architecture Act is a Special Act and shall prevail over theAICTE Act being a general Act, in case of conflict/contradictions in theopinions of the aforesaid two bodies.

After considering the similar submissions made on behalf ofAICTE in the case of Shri Prince Shivaji Maratha Boarding House’sCollege of Architecture (supra), it is ultimately observed and held inparagraphs 63 and 64 as under:

“63. We are of the opinion that in respect of the provisionsof Section 2 (g) of the 1987 Act, the definition of “technicaleducation” would have to be given such a construction and theword “architecture” should be treated to have been inapplicablein cases where the AICTE imports its regulatory framework forinstitutions undertaking technical education. There would howeverbe no substitution because the context would not demand it. Thisconstruction of the definition clause is necessary as the externalcontext requires it to prevent an unworkable outcome inimplementation of the 1987 Act. The principle of implied repealcannot apply so far as the provisions relating to architectureeducation is concerned, on the basis of the 1987 Act having becomeoperational. One of the dominant purposes of the 1972 Act isrecognition of qualifications on architecture. The registration of A

BC

D

E

F

G

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A

an architect is dependent upon acquisition of such recognisedqualification. The said Act cannot be held to have been repealedby implication for the sole reason of inclusion of the word“architecture” in the definition of technical education. AICTE hasfailed to discharge its onus to establish the 71 said provisions ofthe 1972 Act was repealed by implication.

B

64. We accordingly hold that so far as recognition of degreesand diplomas of architecture education is concerned, the 1972Act shall prevail. AICTE will not be entitled to impose anyregulatory measure in connection with the degrees and diplomasin the subject of architecture. Norms and Regulations set by CoACand other specified authorities under the 1972 Act would have tobe followed by an institution imparting education for degrees anddiplomas in architecture.

18. We are in complete agreement with the view taken by thisCourt in Shri Prince Shivaji Maratha Boarding House’s College ofDArchitecture (supra). Otherwise on merits also, as observed and heldhereinabove, the Pharmacy Act which is a Special Act in the field ofpharmacy shall prevail and consequently so far as the recognition ofdegrees and diplomas of pharmacy education is concerned, the PharmacyAct shall prevail. As observed hereinabove, PCI constituted under theEprovisions of the Pharmacy Act which is consisting of the experts in thefield of pharmacy and/or related subjects shall prevail. Consequently,the norms and regulations set by the PCI and other specified authoritiesunder the Pharmacy Act would have to be followed by an institutionimparting education for degrees and diplomas in pharmacy.

F19. Now, so far as reliance placed upon Article 372 of theConstitution by learned Advocate appearing on behalf of AICTE isconcerned, at the outset, it is required to be noted that even as per Article372 of the Constitution, unless a pre-constitutional statute is specificallyrepealed it continues to remain in operation. In the present case, even inthe AICTE Act there is no specific repeal of the Pharmacy Act, 1948.GAs observed hereinabove, there is not even ‘implied repeal’. Therefore,reliance placed upon Article 372 of the Constitution is misconceived.

20. At this stage, it is required to be noted that having realized thedifficulties in view of dual regulations of pharmacy education under thePCI and AICTE, a ministerial level meeting between the Minister ofH

Health and Family Welfare and the Minister of HRD, Union of Indiawas held on 03.10.2018 to end the dual regulations on pharmacy educationunder PCI and AICTE. In the counter-affidavit filed by the AICTE itself,it is stated that during the meeting it was noted and even it is submittedby Ms. Pinki Anand, learned ASG appearing on behalf of the Union ofIndia that during the meeting it was noted that, both the Pharmacy Act,1948 and the AICTE Act, 1987, contain the provisions regardingpharmacy education leading to duplication of regulations and considerableconfusion at the field level, it was unanimously agreed that this dualregulation should be ended forthwith and the AICTE Act governing thegeneral technical education would be amended deleting ‘pharmacy’ fromits mandate and the pharmacy education would thereafter be governedby the Pharmacy Act, 1948. It is submitted that the amendment in Section2(g) of the AICTE Act was proposed, but thereafter there is no furtherprogress in the wake of formation of newly proposed Higher EducationCouncil of India and finalization of NEP, which as such has nothing to dowith the Pharmacy Act. Therefore, even according to the Union of India,the word ‘pharmacy’ is to be deleted from the definition of ‘technicaleducation’ contained in Section 2(g) of the AICTE Act.

21. In view of the above and for the reasons stated above, it isheld that in the field of Pharmacy Education and more particularly so faras the recognition of degrees and diplomas of Pharmacy Education isconcerned, the Pharmacy Act, 1948 shall prevail. The norms andregulations set by the PCI and other specified authorities under thePharmacy Act would have to be followed by the concerned institutionsimparting education for degrees and diplomas in Pharmacy, includingthe norms and regulations with respect to increase and/or decrease inintake capacity of the students and the decisions of the PCI shall only befollowed by the institutions imparting degrees and diplomas in Pharmacy.The questions are answered accordingly.

22. Now the next question which is required to be considered iswith respect to students already admitted pursuant to the orders passedby this Court and the concerned High Courts. The conflict and the disputearose because despite refusal by the PCI, the AICTE increased theintake capacity in the respective institutions, which were not approvedby the PCI. By the interim orders, this Court and the respective HighCourts have directed to allow those students to appear in the examinationsand to register them as pharmacists. Such Interim Orders are also made AB

C

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Afinal. Therefore, the present decision shall not affect those studentsadmitted in the increased intake capacity and/or pursuant to the interimorders passed by this Court and/or final judgments and orders passed bythe respective High Courts. PCI is therefore directed to give consequentialbenefit of registration to such students. However, at the same time, allpending applications for increase in intake capacity and/or for recognitionBand/or approval of course/institutions in the pharmacy shall be as per theprovisions of the Pharmacy Act, 1948 and the regulations, if any,thereunder and as per the norms and regulations fixed by the PCI. It isfurther directed the concerned institutions who increased their intakecapacity as approved by AICTE and their increase in intake capacityCwas not approved by PCI, shall apply afresh for increase in intake capacityand/or evening shift for the next academic year within a period of fourweeks from today and their cases for increase in intake capacity and/orapplications for recognition and/or applications for approval of the courseor evening shift shall be considered by the PCI in accordance with the