Chhattisgarh High Court quashes 5-year moratorium by PCI on opening of new pharmacy colleges

The Chhattisgarh High Court last week quashed two orders of the Pharmacy Council of India (PCI) imposing a moratorium on the opening of new pharmacy colleges for 5 years [Chouksey College Of Pharmacy v Pharmacy Council Of India]..Justice P Sam Koshy held that the right to establish, commence and operate an educational institution is a fundamental right, guaranteed to any person or entity and could only be abridged under a 'law' fitting within the four corners of Article 13(3)(a) of the Constitution.“Since the 'executive instructions' failed to meet the basic character required to impinging upon the fundamental rights, therefore on the said ground, the 'executive instructions' cannot hit or adversely affect the fundamental rights of the Petitioners to start a new Pharmacy Institution at the time and moment of their choice,” observed the single-judge, concluding that the orders under challenge needed to be treated as ineffective and 'bereft of any fangs'..The petitioners moved the High Court since the orders came in the way of them establishing an institution to impart pharmacy courses.The petitioners contended that the orders did not fulfill the requirements under the Pharmacy Act of publication in an official Gazette, to have the force of law.Further, it was their stand that the power conferred on the PCI to regulate the profession of pharmacy did not provide the power to prohibit.It was called upon for being discriminatory and violative of Article 14 since they provided for certain relaxations to a specific category of institutions and areas of the country. The order was touted to be violative of Article 19(1)(g) of the Constitution for infringing the right of the petitioners to practice any profession.Additionally, the petitioners stated that the act was a monopolistic ban created only against the people intending to start a new course in the field of Pharmacy..The respondents laid emphasis on the objects and reasons leading to the enactment of the Pharmacy Act. It was their claim that it was a policy decision of the PCI to impose a moratorium, to ensure that the legislative objective of regulating entry into the profession of pharmacy with minimum standards of education was fulfilled.They stated that it was presumed that the two resolutions had the requisite consent and approval of the Government of India since they were duly communicated and no objection was raised..The High Court, however, refused to accept this argument stating that there was no official approval or required notification. Therefore, it was difficult to presume that there was an automatic enforcement.“It is evidently clear that mere information being provided to the Central Government would not suffice in the course of framing of Regulations by the Central Council,” the Court said. .A further examination of the statute’s provisions by the Court clarified that no power had been conferred on the Central Council or the PCI to take such a decision."It is evidently clear that Act does not provide for a necessary power with the PCI empowering them to take decisions particularly putting an embargo on the establishment of new institutions imparting courses in Pharmacy.”.Justice Koshy concluded that any restriction and embargo on the establishment and commencement of educational institutions could only be imposed by the State.“As such, regulations and resolutions in the nature of executive instructions issued by the PCI amounts to impingement upon the fundamental right of a citizen and or a juristic person”, he recorded..With these observations, it was concluded that the two resolutions under challenge were not sustainable in the eye of law and were, therefore, quashed..Advocates Siddharth R Gupta and Pranjal Agrawal appeared for the petitioners. The respondents were represented by Assistant Solicitor General Rajkumar Mishra and Advocate Tushar Dhar Diwan..[Read Judgment]