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

Citation: [2022] 12 S.C.R. 61 · Decided: 15-09-2022 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Dismissed

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Judgment (excerpt)

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PHARMACY COUNCIL OF INDIA
v.
RAJEEV COLLEGE OF PHARMACY AND ORS.
(Civil Appeal No. 6681 of 2022)
SEPTEMBER 15, 2022
[B. R. GAVAI AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Constitution of India – Article 19(1)(g) – Right to establish
an educational institution – Reasonable restrictions imposed thereon
by executive instructions – Impermissibility of– Vide Resolution/
Communication dtd.17.07.19, the appellant-PCI resolved to put a
moratorium on the opening of new pharmacy colleges for running
Diploma as well as Degree courses in pharmacy for a period of
five years beginning from the Academic Year 2020-2021 – Vide
another Resolution/communication dtd.09.09.19, the aforesaid
moratorium was modified exempting its application as indicated
therein – Writ petitions filed by respondents-Institutions before High
Courts of Karnataka, Delhi and Chhattisgarh challenging the
aforesaid Resolutions/communications were allowed – On appeal,
held: Right to establish an educational institution is a fundamental
right u/Article 19(1)(g) and reasonable restrictions on such a right
can be imposed only by a law and not by an executive instruction –
In the present case, the Resolutions/communications of the appellant,
which are in the nature of executive instructions, could not impose
restrictions on the fundamental right to establish educational
institutions u/Article 19(1)(g) and are liable to be struck down on
this ground – View taken by the High Courts of Karnataka, Delhi
and Chhattisgarh lays down the correct position of law – Pharmacy
Act, 1948 – ss.10, 18.
Dismissing the appeals, the Court
HELD: 1.1 All the three High Courts, i.e., Karnataka, Delhi
and Chhattisgarh, while allowing the writ petitions filed by the
respondent-institutions and quashing and setting aside the
Resolutions/communications of the Central Council of the
appellant-PCI, have, in a nutshell, held thus: (i) That the right to
establish educational institutions is a fundamental right
guaranteed under Article 19(1) (g) of the Constitution of India;
[2022] 12 S.C.R. 61
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SUPREME COURT REPORTS
[2022] 12 S.C.R.
(ii) That there can be reasonable restrictions on such a right.
However, such a restriction can be imposed only by law enacted
by the competent legislature; (iii) The Resolution/communication
dated 17th July 2019, vide which the moratorium was imposed is
an executive instruction and could not be construed as a law and,
therefore, the moratorium imposed by an executive instruction
is not sustainable in law. Apart from that, the learned Single Judge
of the Karnataka High Court has further found that the petitioners
before the High Court were entitled to establish colleges on the
principles of promissory estoppel and legitimate expectation. The
learned Single Judge of the Karnataka High Court as well as the
learned Single Judge of the Delhi High Court have also held that
the Resolution of the appellant-PCI was violative of Article 14 of
the Constitution of India inasmuch as the government institutions
and the institutions in the North Eastern region were exempted
from the applicability of the moratorium. It was found that such
an act was discriminatory. It was further found that the cap of 50
Pharma institutes per State was also arbitrary inasmuch as the
appellant-PCI does not take into consideration the fact that the
population of the States varies from State to State and, as such,
there could not have been a uniform formula of capping 50
pharmacy institutes for every State. [Paras 28, 29][75-C-H; 76-
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1.2 Vide the said Resolution, the Central Council resolved
to put a moratorium on the opening of new pharmacy colleges for
running Diploma as well as Degree course in pharmacy for a period
of five years beginning from the academic year 2020-2021. The
said Resolution dated 17th July 2019 was modified in the 107th
meeting of the Central Council of the appellant-PCI held on 5th
and 6th August 2019. It is clear, and in all fairness, not even
disputed by the appellant-PCI, that the moratorium was issued
by the Central Council of the appellant-PCI in its executive
powers and not by framing any regulation, as provided under
Sections 10 and 18 of the said Act. The moot question, therefore,
that requires consideration, is as to whether the moratorium, as
imposed by the Central Council of the appellant-PCI, could have
been imposed by the said Resolution, which is in the nature of an
executive instruction of the Central Council. [Paras 31-33][76

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