PHARMACY COUNCIL OF INDIA versus RAJEEV COLLEGE OF PHARMACY AND ORS.

PHARMACY COUNCIL OF INDIA

RAJEEV COLLEGE OF PHARMACY AND ORS.

(Civil Appeal No. 6681 of 2022)

SEPTEMBER 15, 2022

[B. R. GAVAI AND

PAMIDIGHANTAM SRI NARASIMHA, JJ.]

Constitution of India – Article 19(1)(g) – Right to establishan educational institution – Reasonable restrictions imposed thereonby executive instructions – Impermissibility of– Vide Resolution/Communication dtd.17.07.19, the appellant-PCI resolved to put amoratorium on the opening of new pharmacy colleges for runningDiploma as well as Degree courses in pharmacy for period offive years beginning from the Academic Year 2020-2021 – Videanother Resolution/communication dtd.09.09.19, the aforesaidmoratorium was modified exempting its application as indicatedtherein – Writ petitions filed by respondents-Institutions before HighCourts of Karnataka, Delhi and Chhattisgarh challenging theaforesaid Resolutions/communications were allowed – On appeal,held: Right to establish an educational institution is fundamentalright u/Article 19(1)(g) and reasonable restrictions on such rightcan be imposed only by law and not by an executive instruction –In the present case, the Resolutions/communications of the appellant,which are in the nature of executive instructions, could not imposerestrictions on the fundamental right to establish educationalinstitutions u/Article 19(1)(g) and are liable to be struck down onthis ground – View taken by the High Courts of Karnataka, Delhiand Chhattisgarh lays down the correct position of law – PharmacyAct, 1948 – ss.10, 18.

Dismissing the appeals, the Court

HELD: 1.1 All the three High Courts, i.e., Karnataka, Delhiand Chhattisgarh, while allowing the writ petitions filed by therespondent-institutions and quashing and setting aside theResolutions/communications of the Central Council of theappellant-PCI, have, in nutshell, held thus: (i) That the right toestablish educational institutions is fundamental rightguaranteed under Article 19(1) (g) of the Constitution of India;

62SUPREME COURT REPORTS

A(ii) That there can be reasonable restrictions on such right.However, such restriction can be imposed only by law enactedby the competent legislature; (iii) The Resolution/communicationdated 17th July 2019, vide which the moratorium was imposed isan executive instruction and could not be construed as law and,therefore, the moratorium imposed by an executive instructionBis not sustainable in law. Apart from that, the learned Single Judgeof the Karnataka High Court has further found that the petitionersbefore the High Court were entitled to establish colleges on theprinciples of promissory estoppel and legitimate expectation. Thelearned Single Judge of the Karnataka High Court as well as theClearned Single Judge of the Delhi High Court have also held thatthe Resolution of the appellant-PCI was violative of Article 14 ofthe Constitution of India inasmuch as the government institutionsand the institutions in the North Eastern region were exemptedfrom the applicability of the moratorium. It was found that suchan act was discriminatory. It was further found that the cap of 50DPharma institutes per State was also arbitrary inasmuch as theappellant-PCI does not take into consideration the fact that thepopulation of the States varies from State to State and, as such,there could not have been uniform formula of capping 50pharmacy institutes for every State. [Paras 28, 29][75-C-H; 76-EA]1.2 Vide the said Resolution, the Central Council resolvedto put moratorium on the opening of new pharmacy colleges forrunning Diploma as well as Degree course in pharmacy for periodof five years beginning from the academic year 2020-2021. TheFsaid Resolution dated 17th July 2019 was modified in the 107thmeeting of the Central Council of the appellant-PCI held on 5thand 6th August 2019. It is clear, and in all fairness, not evendisputed by the appellant-PCI, that the moratorium was issuedby the Central Council of the appellant-PCI in its executivepowers and not by framing any regulation, as provided underGSections 10 and 18 of the said Act. The moot question, therefore,that requires consideration, is as to whether the moratorium, asimposed by the Central Council of the appellant-PCI, could havebeen imposed by the said Resolution, which is in the nature of anexecutive instruction of the Central Council. [Paras 31-33][76-HD-E; 77-C-D]

1.3 The Constitution Bench consisting of 11 Judges, of thisCourt in the case of T.M.A. Pai Foundation , in unequivocal terms,holds that in view of Article 19(1)(g) and Article 26 of theConstitution of India, all citizens and religious denominations areconferred with right to establish and maintain educationalinstitutions. The Constitution Bench in Islamic Academy ofEducation holds that the State would be entitled to imposerestrictions and make regulations both in terms of Article 19(1)(g)and Article 30 of the Constitution of India for maintainingexcellence in the standard of education. It has been held thatregulatory measures are necessary for ensuring orderly, efficientand sound administration. The Constitution Bench, consisting ofSeven Judges, of this Court in P.A. Inamdar has again reiteratedthat the right to impart education is fundamental right underArticle 19(1)(g) and, therefore, subject to control by clause (6) ofArticle 19. It has been held that such right is subject to thelaws imposing reasonable restrictions in the interest of the generalpublic. It has further been held that the laws may be enacted forprescribing the professional or technical qualifications necessaryfor practising any profession or carrying on any occupation, tradeor business. The laws could also be enacted for the purposes ofthe carrying on by the State, or by corporation owned orcontrolled by the State of any trade, business, industry or servicewhether to the exclusion, complete or partial of citizens orotherwise. In the case of Modern Dental College and ResearchCentre, the Constitution Bench, consisting of Five Judges, of thisCourt held that though private unaided minority and non-minorityinstitutions have right to establish educational institutions, inorder to balance the public interest, the State is also empoweredto frame Regulations in the interest of general public. This Courtheld that, while considering the scope of reasonable restrictionswhich are sought to be brought in, in the interest of the generalpublic, the exercise that is required to be undertaken is thebalancing of the fundamental rights to carry on trade oroccupation on one hand and the restrictions so imposed on theother hand. This Court held that it was necessary to find out as towhether the restrictions so imposed were proportional or not. Itis thus clear that though there is fundamental right to establisheducational institutions, the same can be subject to reasonable

Arestrictions, which are found necessary in the general publicinterest. However, the question that requires to be answered isas to whether the same can be done by executive instructions ornot. [Paras 35, 37, 39-41][77-G-H; 78-E-F; 79-C-H]

T.M.A. Pai Foundation and Others v. State of KarnatakaBand Others (2002) 8 SCC 481 : [2002] 3 Suppl. SCR587; Islamic Academy of Education and another v. Stateof Karnataka (2003) 6 SCC 697 : [2003] 2 Suppl. SCR474; P.A. Inamdar and Others v. State of Maharashtraand Others (2005) 6 SCC 537 : [2005] 2 Suppl. SCR603; Modern Dental College and Research Centre andCothers v. State of Madhya Pradesh and Others (2016)7 SCC 353 : [2016] 3 SCR 579 – followed.

1.4 The Constitution Bench, consisting of five Judges, ofthis Court in the case of State of M.P. vs. Thakur Bharat Singhholds that the State or its officers cannot exercise its executiveDauthority to infringe the rights of the citizens merely because theLegislature of the State has the power to legislate in regard tothe subject on which the executive order is issued. It could thusbe seen that the Constitution Bench holds that even an Executivecannot do something to infringe the rights of the citizens by anEexecutive action, though the State Legislature has legislativecompetence to legislate on the subject. [Paras 47, 48][81-C-D]

State of M.P. v. Thakur Bharat Singh (1967) 2 SCR454 – followed.

Shrimati Hira Devi and Others v. District Board,FShahjahanpur (1952) SCR 1122 – relied on.

1.5 Since this Court has held that the right to establish aneducational institution is fundamental right under Article 19(1)(g)of the Constitution of India and reasonable restrictions on such aright can be imposed only by law and not by an executionGinstruction, the Division Bench of the Bombay High Court,Aurangabad Bench, in Sayali Charitable Trust’s College ofPharmacy case does not lay down the correct position of law. Theview taken by the High Courts of Karnataka, Delhi andChhattisgarh lays down the correct position of law. Since this

Court has held that the Resolutions/communications dated 17thJuly 2019 and 9th September 2019 of the Central Council of theappellant-PCI, which are in the nature of executive instructions,could not impose restrictions on the fundamental right to establisheducational institutions under Article 19(1)(g) of the Constitutionof India, it is not found necessary to consider the submissionsadvanced on other issues. The Resolutions/communications dated17th July 2019 and 9th September 2019 of the Central Council ofthe appellant-PCI are liable to be struck down on this shortground. [Paras 54, 55][84-A-D]

Sayali Charitable Trust’s College of Pharmacy v. ThePharmacy Council of India Judgment dtd.06.11.2020

of the Bombay High Court, Aurangabad Bench – heldnot correct law.

1.6 There could indeed be necessity to impose certainrestrictions so as to prevent mushrooming growth of pharmacycolleges. Such restrictions may be in the larger general publicinterest. However, if that has to be done, it has to be done strictlyin accordance with law. If and when such restrictions are imposedby an Authority competent to do so, the validity of the same canalways be scrutinized on the touchstone of law. This Court,therefore, refrains from considering the rival submissions madeon that behalf. The applications seeking approval for D. Pharmand B. Pharm courses are required to be accompanied by “NoObjection Certificate” (“NOC”) from the State Government andconsent of affiliation from the affiliating bodies. While scrutinizingsuch applications, the Council can always take into considerationvarious factors before deciding to allow or reject such applications.Merely because an institution has right to establish aneducational institution does not mean that such an applicationhas to be allowed. In particular area, if there are more thansufficient number of institutions already existing, the CentralCouncil can always take into consideration as to whether it isnecessary or not to increase the number of institutions in suchan area. However, blanket prohibition on the establishment ofpharmacy colleges cannot be imposed by an executive resolution.[Paras 56, 57][84-E-H]

A1.7 In the result, the appeals filed by the Pharmacy Councilof India are dismissed. The writ petitions filed by the institutionsshall stand disposed of in terms of the above. [Paras 58, 59][85-B]

2. CIVIL APPEAL ARISING OUT OF SPECIAL LEAVEBPETITION (CIVIL) NO.1887 OF 2022 [SHAHEED TEGBAHADUR COLLEGE OF PHARMACY VS. PHARMACYCOUNCIL OF INDIA]

In view of the judgment passed by this Court today in CivilAppeal arising out of Special Leave Petition (Civil) No.19671 ofC2021 and connected matters, this appeal has been renderedinfructuous and is disposed of as such. [Para 62][85-E]

Jawaharlal Nehru Technological University Registrarv. Sangam Laxmi Bai Vidyapeet and Others (2019) 17SCC 729 : [2018] 14 SCR 103; Jigya Yadav (Minor)D(Through Guardian/Father Hari Singh) v. Central Boardof Secondary Education and others (2021) 7 SCC 535: 2021 (6 ) JT 177 – distinguished.

Star India Private Limited v. Department of IndustrialPolicy and Promotion and Others (2019) 2 SCC 104 :[2018] 14 SCR 128 – held inapplicable.

State of Bihar and Others v. Project Uchcha Vidya,Sikshak Sangh and Others (2006) 2 SCC 545 : [2006]1 SCR 14; V. T. Khanzode and Others v. Reserve Bankof India and Another (1982) 2 SCC 7 : [1982] 3 SCR411 – relied on.

Madhya Bharat Cotton Association Ltd. v. Union ofIndia and Another AIR 1954 SC 634; Modern Schoolvs. Union of India and Others (2004) 5 SCC 583 :[2004] 1 Suppl. SCR 668; Padubidri Damodar Shenoyv. Indian Airlines Limited and Another (2009) 10 SCC514 : [2009] 14 SCR 356; Vijay S. Sathaye v. IndianAirlines Limited and Others (2013) 10 SCC 253 : [2013]10 SCR 73; Index Medical College, Hospital andResearch Centre v. State of Madhya Pradesh and Others2021 SCC OnLine SC 318 – referred to.

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

CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil AppealNo. 6681 of 2022.

From the Judgment and Orders dated 09.11.2021 of the High Courtof Karnataka at Bengaluru in WA No.746 of 2020.

With

Civil Appeal Nos. 6682-6683 of 2022, Writ Petition (Civil) Nos.564, 565 of 2022, Civil Appeal Nos. 6684-6685, 6686, 6687, 6688, 6690,6689 of 2022, Writ Petition (Civil) No. 406 of 2022, Civil Appeal No.6691 of 2022, Writ Petition (Civil) No. 563 of 2022.

Maninder Singh, Vinay Navare, S.N. Bhat, Rakesh Dwivedi, Sr.Advs., Gaurav Sharma, Kirtiman Singh, Waize Ali Noor, Ms. ManmeetKaur Sareen, Dhawal Mohan, Prateek Bhatia, Ms. Srirupa Nag, PrabhasBajaj, Mrigank Prabhakar, Zoheb Hossain, Pai Amit, Ashwin Kumar D.S., Rajesh Inamdar, Omkar Kambi, Ms. Pankhuri Bhardwaj, Suraj Naik,Abhiyudaya Vats, Rohit R. Saboo, Samrat Krishnarao Shinde, SiddharthR Gupta, Ms. Sakshi Banga, Mrigank Prabhakar, Ms. Priyanka Singh,R.K. Ruhil, Anil Kumar, Shubhranshu Padhi, Vishal Banshal,Ms. Rajeshwari Shankar, Niroop Sukrithy, Sanjay Sharawat, DivyankRana, Akash Sahraya, D. P.Chaturvedi, Tarun Kumar Thakur, Ms. ParvatiBhat, Ms. Anuradha Mutatkar, Shivam Singh, Ravi Kant, Mayank Manish,

AChandrashekhar Singh, Vivek Singh, C. P. Rajwar, Abhishek Chaterjee,Chandra Prakash, Abhinav Singh, Ms. Suman Rani, Amitesh Kumar,Ms. Binisa Mohanty, Ms. Priti Kumari, Arya Tripathy, Mritunjay KumarSinha, Kunal Chatterji, Ms. Maitrayee Banerjee, Rohit Bansal, KamleshKumar Maurya Kaushal Yadav, Nandlal Kumar Mishra, Shafik Ahmed,Deepak Kumar, Zeeshan Anjum, Gourave Kumar Agarwal, Rana Pratap,BParmanand Gaur, Ms. Beena S. Patnaik, Hitesh Kumar Sharma,Akhileshwar Jha, A. K. Sharma, Sahil Amarnath, Vikrant Y.S. Narula,Ayush Mittal, Ajay Kumar, Prakash Ranjan Nayak, Robin Khokhar, V.N. Raghupathy, Dr. Monika Gusain, Ms. Anuradha Mutatkar, GautamNarayan, Kaushal Yadav, Gourave Kumar Agarwal, Parmanand Gaur,CChandra Prakash, Mritunjay Kumar Sinha, Kunal Chatterji, Advs. forthe appearing parties.

The Judgment of the Court was delivered by

B. R. GAVAI, J.D1. Leave granted in all the Special Leave Petitions.

2. The appeals filed by the Pharmacy Council of India (hereinafterreferred to as “PCI”) mainly challenge the (i) judgments dated9[th] November 2021, passed by the Division Bench of the High Court ofKarnataka at Bengaluru in Writ Appeal No. 746-748 of 2020; (ii) judgmentEdated 7[th] March 2022, passed by the learned Single Judge of the HighCourt of Delhi at New Delhi in Writ Petition (Civil) No.175 of 2021; and(iii) judgment dated 22[nd] April 2022, passed by the learned Single Judgeof the High Court of Chhattisgarh at Bilaspur in Writ Petition (Civil)No.3766 of 2021. Several interim orders passed by these Courts duringthe pendency of these matters are also subject to challenge in some ofFthe appeals. They are also being disposed of by the present judgment.

3. By the said judgments and orders, the aforesaid three HighCourts of Karnataka, Delhi and Chhattisgarh had allowed the writ petitionsfiled by the respondents-institutions, which were, in turn, filed challengingthe Resolutions/communications of the appellant-PCI dated 17[th] JulyG2019 and 9[th] September 2019 and dismissed the Writ Appeals filed bythe PCI. Vide Resolution/Communication dated 17[th] July 2019, theappellant-PCI had resolved to put moratorium on the opening of newpharmacy colleges for running Diploma as well as Degree courses inpharmacy for period of five years beginning from the Academic Year2020-2021. Vide Resolution/communication dated 9[th] September 2019,Hthe aforesaid moratorium was modified, thereby exempting its applicationto (i) Government Institutions; (ii) Institutions in North Eastern region;and (iii) States/Union Territories where the number of institutions offeringD. Pharm and B. Pharm courses (both combined) is less than 50.Additionally, vide the said Resolution/communication dated 9[th] September2019, the institutions which had applied for opening colleges offeringD.Pharm and/or B. Pharm courses for 2019-2020 academic sessionwere allowed to apply for conducting diploma as well as degree coursesin Academic Session 2020-2021 and existing approved pharmacyinstitutions were allowed to increase the intake capacity as per PCInorms and/or to start additional pharmacy course(s).

4. The writ petitions filed by the Institutions before the three HighCourts challenged the validity of the said moratorium and also prayedfor direction to be issued to the appellant-PCI to grant approval foropening new pharmacy institutions imparting pharmacy courses for theensuing academic year of 2022-2023 on the basis of inspection conductedby the PCI in February 2020 and to not insist on fresh applications fromthe institutions pursuant to the PCI’s circular of 3[rd] July 2022, which wasissued in compliance of the interim order of this Court dated 31[st] May2022 passed in Special Leave Petition (Civil) No.4862 of 2022.

5. We have heard Shri Maninder Singh, learned Senior Counselappearing on behalf of the appellant-PCI and Shri Rakesh Dwivedi andShri Vinay Navare, learned Senior Counsel, Shri Amit Pai, Shri SanjaySharawat, Shri Siddharth R. Gupta, and Shri Shivam Singh, learnedcounsel appearing on behalf of their respective respondent(s).

6. Shri Maninder Singh, learned Senior Counsel would submit thatthe High Courts have totally erred in interfering with the Resolutiondated 17[th] July 2019 passed by the appellant-PCI. He submits that theperusal of the preamble of the Pharmacy Act, 1948 (hereinafter referredto as “the said Act”) read with Sections 3, 10 and 12 thereof wouldclearly reveal that the appellant-PCI has power to regulate in the fieldof pharmacy education. He submits that the power to regulate wouldalso include power to put moratorium for certain period. The learnedSenior Counsel submits that perusal of Section 3 of the said Act wouldreveal that the Central Council of the PCI consists of experts from variousfields including teachers in the subject concerning pharmacy, elected bythe University Grants Commission (“UGC” for short), persons possessinga degree or diploma in and practicing pharmacy or pharmaceutical

Achemistry, nominated by the Central Government; representative ofthe Medical Council of India; representatives of States elected from themembers of the State Council, so also member to represent each Statenominated by the State Government, who shall be registeredpharmacist. He, therefore, submits that the Body, which consists of somany experts from various fields, is Body which is competent to takeBdecisions in the best interests of the pharmacy education.

7. Shri Maninder Singh, learned Senior Counsel submits that thedecision was taken by the appellant-PCI after sub-committee of expertswas appointed to study the issue. It is submitted that after the sub-committee recommended moratorium in view of mushrooming growthCof pharmacy colleges, the Central Council of the appellant-PCI, aftertaking into consideration all these aspects, recommended moratorium.He submits that this was done in order to prevent situation whichwould lead to uncontrolled growth of pharmacy colleges, resultantlyproducing many pharmacists, who will be without any employment. It isDsubmitted that these factors have not been taken into consideration bythe High Courts in the impugned judgments.

8. Shri Maninder Singh further submitted that the perusal of theCommunication of the Government of India, Ministry of Health & FamilyWelfare dated 22[nd] April 2022 would reveal that the Central GovernmentEwas consulted as required under Section 10 of the said Act.

9. Shri Maninder Singh further submitted that the power to regulatewould also include power to prohibit. He relies on the judgments ofthis Court in the case of Madhya Bharat Cotton Association Ltd. vs.Union of India and another[1]and in the case of Star India PrivateFLimited vs. Department of Industrial Policy and Promotion andothers[2]in this regard.

10.Shri Maninder Singh would further submit that Division Benchof the Bombay High Court, Aurangabad Bench, in batch of writ petitionsbeing Writ Petition No. 4919 of 2020 (Sayali Charitable Trust’s CollegeGof Pharmacy vs. The Pharmacy Council of India, decided on 6[th]November 2020) along with connected matters has upheld themoratorium. He submits that, however, the said judgment of the BombayHigh Court has not been considered by all the three High Courts ofKarnataka, Delhi and Chhattisgarh.1 AIR 1954 SC 634H2 (2019) 2 SCC 104

11. Shri Maninder Singh submits that, having regard to the schemeof the said Act and the purpose sought to be achieved therein, it willhave to be held that it is not only the jurisdiction of the PCI, but its dutyand responsibility to impose moratorium so as to prevent mushroominggrowth of pharmacy colleges in the country. Learned Senior Counselfurther submits that the power to impose such regulations has been upheldby this Court in the case of Jawaharlal Nehru TechnologicalUniversity Registrar vs. Sangam Laxmi Bai Vidyapeet and others[3].He submits that the facts in the present case and the facts in the case ofJawaharlal Nehru Technological University Registrar (supra) aretotally identical. It is, therefore, submitted that the view taken by all thethree High Courts is liable to be set aside and it is required to be held thatthe moratorium imposed, being in the larger public interest, is legal andvalid.

12. Shri Maninder Singh relies on the judgment of this Court in thecase of Jigya Yadav (Minor) (Through Guardian/Father Hari Singh)vs. Central Board of Secondary Education and others[4] in support ofhis submission that the moratorium could also be imposed by resolutionof the appellant-PCI and it would be law as per Article 13 of theConstitution of India.

13. Per contra, Shri Rakesh Dwivedi, learned Senior Counsel,submitted that it is the fundamental right of the respondent – Institutionsto establish educational institutions under Article 19(1)(g) of theConstitution of India. He relies on the judgments of this Court in thecases of T.M.A. Pai Foundation and others vs. State of Karnatakaand others[5], Islamic Academy of Education and another vs. State ofKarnataka and others[6], and P.A. Inamdar and others vs. State ofMaharashtra and others[7]in that regard.

14. Shri Rakesh Dwivedi submits that there is no doubt thatreasonable restrictions could be imposed on the fundamental rights.However, the burden lies on the State to establish that the restrictions soimposed are reasonable and have nexus with the object to be achieved.He submits that the appellant-PCI has totally failed to discharge the said

3 (2019) 17 SCC 729

4 (2021) 7 SCC 535

5 (2002) 8 SCC 481 [Para 18 to 25]

6 (2003) 6 SCC 697 [Para 120]

7 (2005) 6 SCC 537 [Para 92]

Aburden. It is submitted that the restriction, which is in the nature of absoluteprohibition, is totally unreasonable, arbitrary and discriminatory. It issubmitted that it has no nexus with the object to be achieved.

15. Shri Rakesh Dwivedi further submits that the impugnedcommunications of the appellant-PCI are arbitrary. To buttress hisBsubmission that the impugned communications of the appellant-PCI arearbitrary, Shri Rakesh Dwivedi submitted that the appellant-PCI itselfhas exempted Government Colleges from the moratorium imposed, whichhas in effect added about 34000 seats in the field of pharmacy. Hefurther submits that the impugned communication exempts the NorthEastern region from its operation. As such, the power has been exercisedCin manifestly arbitrary manner. It is submitted that the only justificationgiven is that if there is no moratorium, it will lead to unemployment. Hesubmits that if such ground is to be accepted, then all the collegesimparting education in different areas like Medicine, Law, Engineering,Technology, etc. will have to be banned.

16. Shri Rakesh Dwivedi further submitted that, unless the powerto ban is specifically provided in the statute, such power cannot beexercised. In any case, he submitted that if such power was to beexercised, the same could have been exercised only by framing aRegulation in accordance with Section 10 of the said Act. He furtherEsubmitted that for such Regulation to be valid, the following four factorsare required to be complied with:

(i)The copies of the draft Regulations should be furnished bythe Central Council to all the State Governments and beforethe Central Council submits the Education Regulations to theFCentral Government for approval, the comments of the StateGovernments are to be invited and considered;

(ii) That such Regulations must have approval of the CentralGovernment;

(iii) In view of Section 10(4), such Regulations will have to beGpublished in the Official Gazette;

(iv) In view of sub-section (4) of Section 18 of the said Act, suchRegulations have to be laid before each House of Parliament.17. Shri Vinay Navare, learned Senior Counsel submitted that theperusal of Section 3 of the said Act would reveal that the Central CouncilH

of the appellant-PCI consists essentially of persons who are connectedwith the practice of Pharmacy. He submits that the moratorium is imposedwith mala fide intention by those persons who are already connectedwith the profession of Pharmacy so as to create monopoly in the field.He submits that if the composition of the Central Council of the appellant-PCI under the said Act is compared with the composition of the Councilunder the All India Council for Technical Education Act, 1987 (hereinafterreferred to as “AICTE Act”), it would reveal that the Council under theAICTE Act has wider spectrum. It also consists of the persons notconnected with Technical Education.

18. Shri Navare further submitted that the powers under Section10 of the AICTE Act are much wider than the powers of the CentralCouncil under Section 10 of the said Act.

19. Shri Navare further submitted that the Resolution which issent to the State Government is only for the purpose of intimation and,therefore, there is no sufficient compliance of requirement under Section10(3) of the said Act.

20. Relying on the judgment of this Court in the case of V.T.Khanzode and others vs. Reserve Bank of India and another[8], ShriNavare submits that since the appellant-PCI is statutory body, its powerswould be circumscribed by the statutory provisions. He submitted thatsince the power to impose prohibition is not provided under the said Act,such an exercise is wholly impermissible in law.

21. He further submits that there can be no restrictions onfundamental rights except by valid law enacted by the legislature. Inthis respect, he relies on the judgment of this Court in the case of ModernSchool vs. Union of India and others[9].

22. Shri Navare further submits that the words used in sub-section(1) of Section 10 of the said Act are “subject to the approval of theCentral Government”. He, therefore, submits that unless there is anapproval of the Central Government with regard to the moratorium, thesame would not be valid in law. He relies on the judgments of this Courtin the cases of Padubidri Damodar Shenoy vs. Indian Airlines

8 (1982) 2 SCC 7

9 (2004) 5 SCC 583

ALimited and another[10], and Vijay S. Sathaye vs. Indian AirlinesLimited and others[11]in support of this proposition.

23. Shri Amit Pai, learned counsel also submitted that the impugnedcommunications are totally beyond the powers of the appellant-PCI and,as such, no interference is warranted with the impugned judgments andBorders of the High Courts.

24. Shri Sanjay Sharawat, learned counsel submitted that thedecision to impose moratorium has been taken by the appellant-PCIwithout conducting any survey. No material is placed on record in supportof its decision. He submits that the decision to impose moratorium isCwholly arbitrary. He further submits that the appellant-PCI has acted inan arbitrary manner. On one hand, it has imposed ban and on the otherhand it has granted permission to about 2500 institutions to start pharmacycourses. As such, it has acted in totally arbitrary and discriminatorymanner.

D25. Shri Siddharth Gupta, learned counsel, submitted that theimpugned communications are totally discriminatory in nature and tendto create monopoly in respect of the existing colleges inasmuch asthey have been permitted to expand the number of existing seats. Hefurther submits that the cap of 50 colleges imposed for all the States istotally arbitrary. He submits that the cap for highly populated State likeEUttar Pradesh and for small State like Goa is the same. He submitsthat in the State of Chhattisgarh, 7 colleges have been granted permissionon the ground that they were in the pipeline. As such, there is noconsistency in the policy of the appellant-PCI. He relies on the judgmentsof this Court in the case of Index Medical College, Hospital andFResearch Centre vs. State of Madhya Pradesh and others[12] in supportof his submission.

26. Relying on the judgment of this Court in the case of ModernDental College and Research Centre and others vs. State of MadhyaPradesh and others[13], he submits that unless the impugned restrictionGsatisfies the test of proportionality of restrictions, the same would not betenable in law. He submits that it will be necessary to find out as to

10 (2009) 10 SCC 51411 (2013) 10 SCC 25312 2021 SCC OnLine SC 318H13 (2016) 7 SCC 353

whether the limitation on constitutional rights is for purpose which isreasonable and necessary in democratic society. He submits thatapplying the said test, the impugned communication which imposed atotal ban for period of five years does not stand the proportionalitytest.

27. Shri Shivam Singh, learned counsel submitted that the decision-making process is totally vitiated. He submits that taking into considerationthe pandemic situation, the Authorities ought to have considered thatthere is need to have larger number of Pharmacy colleges. However,this aspect has been totally ignored by the appellant-PCI.

28. All the three High Courts, i.e., Karnataka, Delhi andChhattisgarh, while allowing the writ petitions filed by the respondent-institutions and quashing and setting aside the Resolutions/communications of the Central Council of the appellant-PCI, have, in anutshell, held thus:

(i)That the right to establish educational institutions is afundamental right guaranteed under Article 19(1)(g) of theConstitution of India;

(ii)That there can be reasonable restrictions on such right.However, such restriction can be imposed only by lawenacted by the competent legislature;

(iii) The Resolution/communication dated 17[th] July 2019, videwhich the moratorium was imposed is an executive instructionand could not be construed as law and, therefore, themoratorium imposed by an executive instruction is notsustainable in law.

29. Apart from that, the learned Single Judge of the KarnatakaHigh Court has further found that the petitioners before the High Courtwere entitled to establish colleges on the principles of promissory estoppeland legitimate expectation. The learned Single Judge of the KarnatakaHigh Court as well as the learned Single Judge of the Delhi High Courthave also held that the Resolution of the appellant-PCI was violative ofArticle 14 of the Constitution of India inasmuch as the governmentinstitutions and the institutions in the North Eastern region were exemptedfrom the applicability of the moratorium. It was found that such an actwas discriminatory. It was further found that the cap of 50 Pharmainstitutes per State was also arbitrary inasmuch as the appellant-PCI

Adoes not take into consideration the fact that the population of the Statesvaries from State to State and, as such, there could not have been auniform formula of capping 50 pharmacy institutes for every State.

30. Undisputedly, the Central Council of the appellant-PCI videits Resolution/communication dated 17[th] July 2019 has resolved as under:

B“RESOLUTION

Taking into consideration the availability of sufficient qualifiedpharmacist workforce, the House unanimously resolved to put amoratorium on the opening of new pharmacy colleges for runningDiploma as well as Degree course in pharmacy for period ofCfive years beginning from the academic year 2020-2021. Thismoratorium shall not be applicable in the North Eastern region ofthe country where there is shortage of pharmacy colleges.”

31. It can thus be seen that vide the said Resolution, the CentralCouncil resolved to put moratorium on the opening of new pharmacyDcolleges for running Diploma as well as Degree course in pharmacy fora period of five years beginning from the academic year 2020-2021.The said Resolution dated 17[th] July 2019 was modified in the 107[th] meetingof the Central Council of the appellant-PCI held on 5[th] and 6[th] August2019. The relevant part of the modified Resolution reads thus:

E“1252.4In view of it, it was unanimously decided thatmoratorium on the opening of new pharmacycolleges for running Diploma as well as Degreecourse in pharmacy for period of five yearsbeginning from the academic year 2020-2021 willbe subject to following conditions-

a)The moratorium will not apply to theGovernment institutions.

b)The moratorium will not apply to the institutionsin North Eastern region.

c)The moratorium will not apply to the States/Union Territories where the number of D.Pharm and B. Pharm institutions (bothcombined) is less than 50.

d)The institutions which had applied for openingD. Pharm and/or B. Pharm colleges for 2019-

20 academic session either to the PCI or tothe AICTE and the proposal was rejected ornot inspected due to some reason or the otherwill be allowed to apply for 2020-21 academicsession and this relaxations is given only forone year i.e. for 2020-21 academic sessiononly.

e)Existing approved pharmacy institutions willbe allowed to apply for increase in intakecapacity as per PCI norms and/or to startadditional pharmacy course(s).”

32. It is thus clear, and in all fairness, not even disputed by theappellant-PCI, that the moratorium was issued by the Central Council ofthe appellant-PCI in its executive powers and not by framing anyregulation, as provided under Sections 10 and 18 of the said Act.

33. The moot question, therefore, that requires consideration, isas to whether the moratorium, as imposed by the Central Council of theappellant-PCI, could have been imposed by the said Resolution, which isin the nature of an executive instruction of the Central Council.

34. It will be relevant to refer to the following observations of theConstitution Bench, consisting of 11 Judges, of this Court in the case ofT.M.A. Pai Foundation (supra):

“18. With regard to the establishment of educational institutions,three articles of the Constitution come into play. Article 19(1)(g)gives the right to all the citizens to practise any profession or tocarry on any occupation, trade or business; this right is subject torestrictions that may be placed under Article 19(6). Article 26gives the right to every religious denomination to establish andmaintain an institution for religious purposes, which would includean educational institution. Article 19(1)(g) and Article 26, therefore,confer rights on all citizens and religious denominations to establishand maintain educational institutions….”

35. It could thus clearly be seen that the Constitution Bench ofthis Court in the aforesaid case, in unequivocal terms, holds that in viewof Article 19(1)(g) and Article 26 of the Constitution of India, all citizensand religious denominations are conferred with right to establish andmaintain educational institutions.

A36. Another Constitution Bench, consisting of five Judges, of thisCourt in the case of Islamic Academy of Education (supra) has heldthus:

“120. So far as institutions imparting professional education areconcerned, having regard to the public interest, they are bound toBmaintain excellence in the standard of education. To that extent,there cannot be any compromise and the State would be entitledto impose restrictions and make regulations both in terms of Article19(1)(g) and Article 30 of the Constitution of India. The width ofthe rights and limitations thereof of unaided institutions whetherrun by majority or minority must conform to the maintenanceCof excellence. With view to achieve the said goal, indisputably,the regulations can be made by the State.

121. The right to administer does not amount to the right tomaladminister and the right is not free from regulation. Theregulatory measures are necessary for ensuring orderly, efficientand sound administration. The regulatory measures can be laiddown by the State in the administration of minority institutions.”

37. It could thus be seen that the Constitution Bench in IslamicAcademy of Education (supra) holds that the State would be entitledto impose restrictions and make regulations both in terms of ArticleE19(1)(g) and Article 30 of the Constitution of India for maintainingexcellence in the standard of education. It has been held that regulatorymeasures are necessary for ensuring orderly, efficient and soundadministration.

38. Thereafter the Constitution Bench, consisting of Seven Judges,Fof this Court in the case of P.A. Inamdar (supra), observed thus:

“92. As an occupation, right to impart education is fundamentalright under Article 19(1)(g) and, therefore, subject to control byclause (6) of Article 19. This right is available to all citizens withoutdrawing distinction between minority and non-minority. Such aGright is, generally speaking, subject to the laws imposing reasonablerestrictions in the interest of the general public. In particular, lawsmay be enacted on the following subjects: (i) the professional ortechnical qualifications necessary for practising any profession orcarrying on any occupation, trade or business; (ii) the carrying on

by the State, or by corporation owned or controlled by the Stateof any trade, business, industry or service whether to the exclusion,complete or partial of citizens or otherwise. Care is taken ofminorities, religious or linguistic, by protecting their right to establishand administer educational institutions of their choice under Article30. To some extent, what may be permissible by way of restrictionunder Article 19(6) may fall foul of Article 30. This is the additionalprotection which Article 30(1) grants to the minorities.”

39. It could thus be seen that the Constitution Bench of this Courtin P.A. Inamdar (supra) has again reiterated that the right to imparteducation is fundamental right under Article 19(1)(g) and, therefore,subject to control by clause (6) of Article 19. It has been held that sucha right is subject to the laws imposing reasonable restrictions in the interestof the general public. It has further been held that the laws may beenacted for prescribing the professional or technical qualificationsnecessary for practising any profession or carrying on any occupation,trade or business. The laws could also be enacted for the purposes ofthe carrying on by the State, or by corporation owned or controlled bythe State of any trade, business, industry or service whether to theexclusion, complete or partial of citizens or otherwise.

40. In the case of Modern Dental College and Research Centre(supra), the Constitution Bench, consisting of Five Judges, of this Courtheld that though private unaided minority and non-minority institutionshave right to establish educational institutions, in order to balance thepublic interest, the State is also empowered to frame Regulations in theinterest of general public. This Court held that, while considering thescope of reasonable restrictions which are sought to be brought in, in theinterest of the general public, the exercise that is required to be undertakenis the balancing of the fundamental rights to carry on trade or occupationon one hand and the restrictions so imposed on the other hand. ThisCourt held that it was necessary to find out as to whether the restrictionsso imposed were proportional or not.41. It is thus clear that though there is fundamental right toestablish educational institutions, the same can be subject to reasonablerestrictions, which are found necessary in the general public interest.However, the question that requires to be answered is as to whether thesame can be done by executive instructions or not.

A42. The question is directly answered by this Court in the case ofState of Bihar and others vs. Project Uchcha Vidya, Sikshak Sanghand others[14] in paragraph 69, which reads thus:

“69. The right to manage an institution is also right to property.In view of decision of an eleven-Judge Bench of this CourtBin T.M.A. Pai Foundation v. State of Karnataka [(2002) 8 SCC481] establishment and management of an educational institutionhas been held to be part of fundamental right being right ofoccupation as envisaged under Article 19(1)(g) of the Constitution.A citizen cannot be deprived of the said right except inaccordance with law. The requirement of law for the purposeCof clause (6) of Article 19 of the Constitution can by no stretchof imagination be achieved by issuing circular or policydecision in terms of Article 162 of the Constitution or otherwise.Such law, it is trite, must be one enacted by the legislature.”

[emphasis supplied]

43. It could thus be seen that this Court has categorically held thata citizen cannot be deprived of the said right except in accordance withlaw. It has further been held that the requirement of law for the purposeof clause (6) of Article 19 of the Constitution can by no stretch ofimagination be achieved by issuing circular or policy decision in termsEof Article 162 of the Constitution or otherwise. It has been held thatsuch law must be one enacted by the legislature.

44. Shri Maninder Singh, learned Senior Counsel, relied on thejudgment of this Court in the case of Jawaharlal Nehru TechnologicalUniversity Registrar (supra) to submit that in the said case also, aFmoratorium which was imposed by the State of Telangana was found tobe valid since it was done to control mushrooming growth of educationalinstitutions.

45. perusal of the judgment of this Court in the case ofJawaharlal Nehru Technological University Registrar (supra) wouldGreveal that this Court found that Section 20 of the Telangana EducationAct, 1982 specifically empowered the State to issue such directionimposing moratorium. No such provision can be found in the said Act,which would empower such restriction to be imposed by the Resolutionof the Central Council.

H14 (2006) 2 SCC 545

46. It will also be relevant to refer to the following observation ofthe Constitution Bench, consisting of five Judges, of this Court in thecase of State of M.P. vs. Thakur Bharat Singh[15]:

“Viewed in the light of these facts the observations relied upon donot support the contention that the State or its officers may inexercise of executive authority infringe the rights of the citizensmerely because the Legislature of the State has the power tolegislate in regard to the subject on which the executive order isissued.”

47. It is thus clear that the Constitution Bench of this Court holdsthat the State or its officers cannot exercise its executive authority toinfringe the rights of the citizens merely because the Legislature of theState has the power to legislate in regard to the subject on which theexecutive order is issued.

48. It could thus be seen that the Constitution Bench holds thateven an Executive cannot do something to infringe the rights of thecitizens by an executive action, though the State Legislature has legislativecompetence to legislate on the subject.

49. Shri Maninder Singh, learned Senior Counsel appearing onbehalf of the appellant-PCI, relies on the judgment of this Court in thecase of Jigya Yadav (Minor) (Through Guardian/Father Hari Singh)vs. Central Board of Secondary Education and others (supra) insupport of his contention that since the Central Council of the appellant-PCI is public authority and discharges public functions, the Resolutionresolved by it would partake the character of law within the meaningof Article 13 of the Constitution of India. It may be noted that in the caseof Jigya Yadav (Minor) (Through Guardian/Father Hari Singh)vs. Central Board of Secondary Education and others (supra), thisCourt was considering the powers of the Central Board of SecondaryEducation (“CBSE” for short), which is society registered under theSocieties Registration Act, 1860. CBSE is not body incorporated underany statutory provisions. However, the Central Council of the appellant-PCI is statutory body constituted under the said Act.

50. It will be relevant to refer to the observations of this Court inthe case of Shrimati Hira Devi and others vs. District Board,Shahjahanpur[16], which reads thus:

15 (1967) 2 SCR 454

16 (1952) SCR 1122

“The defendants were Board created by statute and wereinvested with powers which of necessity had to be found withinthe four corners of the statute itself.

51. It will also be relevant to refer to paragraph 18 of the judgmentof this Court in the case of V.T. Khanzode (supra), which is as follows:

“18. In support of this submission, reliance is placed by the learnedcounsel on the statement of law contained in para 1326 and 1333(pp. 775 and 779) of Halsbury’s Laws of England, 4th Edn. Inpara 1326 it is stated that:

“Corporations may be either statutory or non-statutory,and fundamental distinction exists between the powers andliabilities of the two classes. Statutory corporations have suchrights and can do such acts only as are authorised directly orindirectly by the statutes creating them; non-statutorycorporations, speaking generally, can do everything that anordinary individual can do unless restricted directly or indirectlyby statute.”

Para 1333 says that:

“The powers of corporation created by statute arelimited and circumscribed by the statutes which regulate it,and extend no further than is expressly stated therein, or isnecessarily and properly required for carrying into effect thepurposes of its incorporation, or may be fairly regarded asincidental to, or consequential upon, those things which thelegislature has authorised. What the statute does not expresslyor impliedly authorise is to be taken to be prohibited.”

There is no doubt that statutory corporation can do onlysuch acts as are authorised by the statute creating it and that,the powers of such corporation cannot extend beyond whatthe statute provides expressly or by necessary implication. Ifan act is neither expressly nor impliedly authorised by thestatute which creates the corporation, it must be taken to beprohibited. This cannot, however, produce the result for whichShri Nariman contends. His contention is not that the CentralBoard has no power to frame staff regulations but that it must doso under Section 58(1) only. On that argument, it is material to

note that Section 58(1) is in the nature of an enabling provisionunder which the Central Board “may” make regulations in orderto provide for all matters for which it is necessary or convenientto make provision for the purpose of giving effect to the provisionsof the Act. This provision does not justify the argument that staffregulations must be framed under it or not at all. The substance ofthe matter is that the Central Board has the power to frameregulations relating to the conditions of service of the Bank’s staff.If it has that power, it may exercise it either in accordance withSection 58(1) or by acting appropriately in the exercise of its generalpower of administration and superintendence.”

[emphasis supplied]

52. It could thus be seen that this Court has approved paragraph1326 and 1333 (pp. 775 and 779) of Halsbury’s Laws of England, 4thEdition, to the effect that statutory corporation can do only such actsas are authorised by the statute creating it and that the powers of such acorporation cannot extend beyond what the statute provides expresslyor by necessary implication. Though in the said case, this Court held thatthe said principle is not applicable inasmuch as the Central Board hasthe power to frame regulations relating to the conditions of service ofthe Bank’s staff, the said principle will indeed be applicable to the caseat hand.

53. Shri Maninder Singh, learned Senior Counsel, further submittedthat the preamble of the said Act itself used the word “regulate” and theword “regulate” would include within its ambit the power to “prohibit”.Strong reliance is placed on the judgment of this Court in the case ofStar India Private Limited (supra). However, it is to be noted that inthe said case, certain clauses of the Telecommunication (Broadcastingand Cable) Services Interconnection (Addressable Systems) Regulations,2017 notified on 3-3-2017, made under Section 36 of the TelecomRegulatory Authority of India Act, 1997, together with theTelecommunication (Broadcasting and Cable) Services (Eighth)(Addressable Systems) Tariff Order, 2017 notified on the same datewere under challenge. In the present case, what is being sought to bedone was done by Resolution of the Central Council of the appellant-PCI and not by any Regulation framed under the provisions of the saidAct. As such, the judgment of this Court in the case of Star India PrivateLimited (supra) is not applicable to the facts of the present case.

A54. Shri Maninder Singh further relied on the judgment of theDivision Bench of the Bombay High Court, Aurangabad Bench, in SayaliCharitable Trust’s College of Pharmacy (supra). However, since wehave held that the right to establish an educational institution is afundamental right under Article 19(1)(g) of the Constitution of India andreasonable restrictions on such right can be imposed only by law andBnot by an execution instruction, we are of the view that the DivisionBench of the Bombay High Court, Aurangabad Bench, in the said casedoes not lay down the correct position of law. In our view, the viewtaken by the High Courts of Karnataka, Delhi and Chhattisgarh laysdown the correct position of law.

55. Since we have held that the Resolutions/communications dated17[th] July 2019 and 9[th] September 2019 of the Central Council of theappellant-PCI, which are in the nature of executive instructions, couldnot impose restrictions on the fundamental right to establish educationalinstitutions under Article 19(1)(g) of the Constitution of India, we do notDfind it necessary to consider the submissions advanced on other issues.We find that the Resolutions/communications dated 17[th] July 2019 and9[th] September 2019 of the Central Council of the appellant-PCI areliable to be struck down on this short ground.56. Before parting, we may observe that there could indeed be aEnecessity to impose certain restrictions so as to prevent mushroominggrowth of pharmacy colleges. Such restrictions may be in the largergeneral public interest. However, if that has to be done, it has to be donestrictly in accordance with law. If and when such restrictions are imposedby an Authority competent to do so, the validity of the same can alwaysbe scrutinized on the touchstone of law. We, therefore, refrain fromFconsidering the rival submissions made on that behalf.

57. It is further to be noted that the applications seeking approvalfor D. Pharm and B. Pharm courses are required to be accompanied bya “No Objection Certificate” (“NOC”) from the State Government andconsent of affiliation from the affiliating bodies. While scrutinizing suchGapplications, the Council can always take into consideration various factorsbefore deciding to allow or reject such applications. Merely because aninstitution has right to establish an educational institution does not meanthat such an application has to be allowed. In particular area, if thereare more than sufficient number of institutions already existing, the CentralHCouncil can always take into consideration as to whether it is necessary

or not to increase the number of institutions in such an area. However, ablanket prohibition on the establishment of pharmacy colleges cannot beimposed by an executive resolution.

58. In the result, the appeals filed by the Pharmacy Council ofIndia are dismissed. However, in the facts and circumstances of thecase, there shall be no order as to costs.

59. The writ petitions filed by the institutions shall stand disposedof in terms of the above.

60. Pending application(s), if any, shall also stand disposed of.

CIVIL APPEAL ARISING OUT OF SPECIAL LEAVEPETITION (CIVIL) NO.1887 OF 2022 [SHAHEED TEGBAHADUR COLLEGE OF PHARMACY VS. PHARMACYCOUNCIL OF INDIA]

61. The appeal filed by Shaheed Teg Bahadur College of Pharmacychallenges the order dated 23[rd] December 2021 passed by the learnedSingle Judge of the High Court of Delhi at New Delhi in CM ApplicationNo. 41337 of 2021 in Writ Petition (Civil) No.175 of 2021.

62. In view of the judgment passed by this Court today in CivilAppeal arising out of Special Leave Petition (Civil) No.19671 of 2021and connected matters, this appeal has been rendered infructuous and isdisposed of as such. However, there shall be no order as to costs. Pendingapplication(s), if any, shall stand disposed of.

Divya Pandey

Appeals dismissed.