Rajendra Prasad Bagaria vs Pharmacy Council Of State Of Raj.& Anr on 6 February 2012

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Supreme Court of India
Rajendra Prasad Bagaria vs Pharmacy Council Of State Of Raj.& Anr on 6 February, 2012
Equivalent citations: AIR 2012 SUPREME COURT 970, 2012 AIR SCW 1292, 2012 (4) AIR JHAR R 105, AIR 2012 SC (CIVIL) 892, (2012) 3 RECCIVR 275, (2012) 5 MAD LJ 423, (2012) 2 RAJ LW 1853, (2012) 1 WLC(SC)CVL 608, (2012) 111 ALLINDCAS 103 (SC), 2012 (3) SCC 212, (2012) 2 SCALE 342, (2012) 1 ESC 152, (2012) 2 ALL WC 1089, 2012 (1) KLT SN 118 (SC), 2012 (3) ADJ 35 NOC
Author: H.L. Gokhale
Bench: H.L. Gokhale, P. Sathasivam
REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 6895 OF 2008

Rajendra Prasad Bagaria … Appellant

Versus

Pharmacy Council of State of Rajasthan & Anr. … Respondents

J U D G E M E N T

H.L. Gokhale J.

This appeal by special leave is directed against the judgment and

order dated 8.6.2006 passed by a Division Bench of the High Court of Rajasthan,

Jaipur Bench, in D.B. Special Appeal (Writ) No. 507/2006 arising out of S.B. Civil

Writ Petition No. 4309/2005, whereby the Writ Petition filed by the appellant was

dismissed.

Short facts leading to this appeal are as follows:-

2. The appellant claims that after passing the Secondary School

Examination in 1986, he worked in a Medical Store named as `Todi Medicals’ at

Sikar in the state of Rajasthan from October 1991 to March 1997. It is his case

that though on the basis of his experience, he was otherwise eligible to be

enrolled as a pharmacist in Rajasthan, he could not get so enrolled since by the

time he could apply, the registration of pharmacists in Rajasthan was closed. He

claims that thereafter he shifted to Sikkim in August, 2001, where he worked for

about two months in a medical store at Gangtok. On the basis of the certificate

issued by his employer in Sikkim, he applied for registration as a pharmacist with

the Sikkim State Pharmacy Tribunal (Sikkim Tribunal for short), and he was so

registered over there on 5.12.2001.

3. The purpose of his sojourn to Sikkim having been achieved, the

appellant returned to Kherli in the State of Rajasthan towards the beginning of

January 2002. On the basis of this registration from Sikkim, he applied on

8.4.2002 for his registration with the Pharmacy Council of the State of Rajasthan

(respondent No.1 herein – `Rajasthan Council’ for short) under Section 32 of The

Pharmacy Act, 1948 (hereinafter referred to as `the Act’).

4. It is the further case of the appellant that the Rajasthan Council

made necessary enquiries with the Sikkim Tribunal, and thereafter enrolled him

as a registered pharmacist by their registration certificate dated 4.6.2002. It

however, appears that some complaints were received by the Government of

Rajasthan (respondent No.2) with respect to functioning of a large number of in-

eligible pharmacists in the State. Consequently, on being informed about the

same, the Rajasthan Council decided to look into such cases. On 22.7.2004, a

notice was issued by the first respondent to the appellant informing him that

Enquiry Committee constituted by the Rajasthan Council had found his

registration to be irregular, and therefore, he should appear before the Executive

Committee of the Council on 2.8.2004, to explain as to why his name should not

be removed from the Register of Pharmacists of Rajasthan by invoking its

powers under Section 36 of the Act. The appellant did not care either to reply,

or to remain present before the Executive Committee. The Executive

Committee, therefore, considered the material on record, and took the decision

to cancel his registration. This decision was approved by the Full Council on

16.3.2005 and the appellant was informed to surrender his certificate of

registration by the Council by its further communication dated 12.4.2005.

5. The appellant filed a Writ Petition to challenge this decision of the

first respondent. The said Writ Petition bearing No. 4309/2005 was heard by a

Single Judge of the Rajasthan High Court. The appellant did not dispute the fact

that he did not appear before the Executive Committee, nor did he dispute any

of the aforesaid facts. The learned Single Judge accepted the submission of the

respondents that the appellant had an alternative remedy to file an appeal under

section 36(4) of the Act which he had not exhausted. That apart, he also noted

that though the appellant was given an opportunity of personal hearing by the

Executive Committee, he did not place any convincing proof of his registration

having been done as per provisions of the Act by the Sikkim Tribunal. The

learned Single Judge also noted that no such documents were produced before

him also, which would indicate that the appellant had acquired necessary

experience in Sikkim, before obtaining the registration over there. The learned

Single Judge therefore, dismissed the said Writ Petition by his judgment and

order dated 7.4.2006.

6. Aggrieved by this decision, the appellant filed a D.B. Special Appeal

(Writ) No. 507/2006. It was submitted on behalf of the appellant that the State

Government had no business to make an enquiry about the validity of appellant’s

registration, nor the Executive Committee had any authority to cancel his

registration with the Rajasthan Council which had issued the same to him on the

basis of his registration in another State. As far as the first submission is

concerned, the Division Bench took the view that the State Government did have

the authority to look into the complaints, which it received from the citizens. It

had merely brought those complaints to the notice of the Rajasthan Council.

Ultimately, it is the Executive Committee of the Rajasthan Council which had

taken necessary decision after calling upon the appellant to attend an enquiry,

which he did not. As far as the decision of the Rajasthan Council is concerned, it

was held that the appellant had failed to prove that his registration in Sikkim

could be considered to be a valid one for Rajasthan since he had not worked for

requisite period in Sikkim. The Division Bench, therefore, held that the decision

of the Executive Committee of the first respondent could not be faulted. The

appeal was accordingly dismissed.

7. Being aggrieved by this judgment and order, the present appeal

has been filed. The principle submission of the appellant’s counsel is that the

first respondent having granted registration to the appellant after making an

initial enquiry with the Sikkim Tribunal, could not review its decision, and

secondly, in any case, the appellant had the necessary qualification for his

registration with the first respondent under Section 31 of the Act, and therefore

the orders of the Executive Committee, as well as the two judgments and orders,

are required to be set aside. The counsel for the respondents, on the other

hand, defended the decision of the first respondent as well the two judgments

and orders, as being perfectly justified.

Consideration of the rival submissions

8. Now, if we see the Preamble of The Pharmacy Act, 1948, it states,

that it is an Act to make better provisions for the regulation of the profession and

practice of pharmacy, and for that purpose to constitute the Pharmacy Councils.

The Act provides for entry of the names in the Register of Pharmacists in three

stages:

(i) The first stage is entry of names in the first register under Section 30 of

the Act. Qualifications for such entry are given in Section 31 of the Act.

Under Section 30(2), the State Government is required to fix a date by

notification, and applications for registration must be made by the

appointed date.

(ii) The second stage is where people fail to apply for entry in First register,

they can apply for registration u/s 32(1) if they satisfy the requisite

qualifications.

(iii) The third stage is for registration u/s 32 (2) of the Act as per education

regulations, or as a registered pharmacist in another state.

The qualifications for entry in the first register are provided under Section 31 of

the Act which reads as follows:-

“31 – Qualifications for entry on first register

[A person who has attained the age of eighteen years shall
be entitled] on payment of the prescribed fee to have his name
entered in the first register if he resides, or carries on the business
or profession of pharmacy, in the State and if he–

(a) holds a degree or diploma in pharmacy or pharmaceutical
chemistry or a chemist and druggist diploma of an Indian
University or a State government as the case may be, or a
prescribed qualification granted by an authority outside {The
words “the Provinces of” omitted by the A.O.1950.} India, or

(b) holds a degree of an Indian University other than a degree
in pharmacy or pharmaceutical chemistry, and has been
engaged in the compounding of drugs in a hospital or
dispensary or other place in which drugs are regularly
dispensed on prescriptions or medical practitioners for a total
period of not less than three years, or

(d) has been engaged in the compounding of drugs in a
hospital or dispensary or other place in which drugs are
regularly dispensed on prescriptions of medical practitioners for
a total period of not less than five years prior to the date
notified under sub-section (2) of section 30.”

As the Section itself shows, that to be a pharmacist, importance is given to have

a degree or diploma in pharmacy, failing which any other degree is permitted

with three years experience of dispensing medicines, or passing of an

examination recognised by the State Government, or having an experience of not

less than five years of working in a hospital or dispensary in which drugs are

regularly dispensed on prescriptions of medical practitioners.

9. Section 32 of the Act provides for subsequent registration, which

also includes amongst the qualified categories, a registration on the basis of

being a registered pharmacist in another State. The submission of the appellant

was that he was already registered in Sikkim, which registration was accepted by

the first respondent, and therefore, the first respondent issued him its

registration certificate on 5.12.2001. The Executive Committee of the first

respondent could not review the decision once taken, since there was no

provision for review in the Act. In support of this proposition, he relied on the

judgment of this Court in Patel Narshi Thakershi and Ors. Vs. Shri

Pradyumansinghji Arjunsinghji reported in 1971(3) SCC 844.

10. In this behalf, what is material to note is that the first respondent

has taken the action against the appellant under Section 36 of the Act. This

Section reads as follows:-

“36 – Removal from register

(1) Subject to the provisions of this section, the Executive
Committee may order that the name of a registered pharmacist
shall be removed from the register, where it is satisfied, after
giving him a reasonable opportunity of being heard and after such
further inquiry if any, as it may think fit to make.–

(i) that his name has been entered in the register by error or on
account of misrepresentation or suppression of a material fact,
or

(ii) that he has been convicted of any offence or has been guilty
of any infamous conduct in any professional respect which in
the opinion of the Executive Committee, renders him unfit to be
kept in the register, or

(iii) that a persons employed by him for the purposes of his
business of pharmacy. {Ins. by s.13, ibid.(w.e.f.1-5-1960).} [or
employed to work under him in connection with any business of
pharmacy] has been convicted of any such offence or has been
guilty of any such infamous conduct as would, if such person
were a registered pharmacist, render him liable to have his
name removed from the register under clause (ii) :

Provided that no such order shall be made under clause (iii) unless
the Executive Committee is satisfied–

(a) that the offence or infamous conduct was instigated or
connived at by the registered pharmacist, or

(b) that the registered pharmacist has at any time during
the period of twelve months immediately preceding the date
on which the offence or infamous conduct took place
committed a similar offence or been guilty of similar
infamous conduct, or

(c) that any person employed by the registered pharmacist
for the purposes of his business of pharmacy [or employed
to work under him in connection with any business of
pharmacy] has at any time during the period of twelve
months immediately preceding the date on which the
offence or infamous conduct took place, committed a similar
offence or been guilty of similar infamous conduct, and that
the registered pharmacist had, or reasonably ought to have
had, knowledge of such previous offence or infamous
conduct, or

(d) that where the offence or infamous conduct continued
over a period, the registered pharmacist had, or reasonably
ought to have had, knowledge of the continuing offence or
infamous conduct, or

(e) that where offence is an offence under the.{ Substitute.
by Act 70 of 1976, s.18, for “Drugs Act, 1940″ (w.e.f.1-9-
1976).} [Drugs and Cosmetics Act, 1940] (23 of 1940), the
registered pharmacist has not used due diligence in
enforcing compliance with the provisions of that Act in his
place of business and by persons employed by his [or by
persons under his control]

(2) An order under sub-section (1) may direct that the person
whose name is ordered to be removed from the register shall be
ineligible for registration in the State under this Act either
permanently or for such period as may be specified.

(3) An order under sub-section (1) shall be subject to confirmation
by the State Council and shall not take effect until the expiry of
three months from the date of such confirmation.

(4) A person aggrieved by an order under sub-section (1) which
has been confirmed by the State Council may, within thirty days
from the communication to him of such confirmation, appeal to the
State Government, and the order of the State Government upon
such appeal shall be final.

(5) A person whose name has been removed from the register
under this section or under sub-section (2) of section 34 shall
forthwith surrender his certificate or registration to the Registrar,
and the name so removed shall be published in the Official
Gazette.”

11. Section 36 (1) (i) provides for removing the name of a registered

pharmacist in the event there is an error in his registration, or where it is

registered on account of misrepresentation or suppression of a material fact. In

our view, this sub-section gives sufficient power to the Executive Committee to

recall its decision. In the instant case obviously, there was an error on the part

of the first respondent in accepting the registration from Sikkim as a valid

registration for transfer of the appellant as a pharmacist in Rajasthan.

Ultimately, it is the State Pharmacy Council which is responsible for having well-

equipped pharmacists in the State who have the requisite qualifications and/or

experience. The fact is that the second respondent had received complaints with

respect to a large number of in-eligible persons functioning as pharmacists.

Therefore, when this fact was brought to the notice of the first respondent, a

notice was given to the appellant affording him a personal opportunity as

required under Section 36 (1) of the Act. However, the appellant did not avail of

this opportunity. Hence, all that the Executive Committee had done was to

consider the material on record and to cancel his registration in Rajasthan. The

Executive Committee of the first respondent had not cancelled his registration in

Sikkim. It cannot, therefore, be said that the Executive Committee had exercised

the power of review without being empowered for the same under the statute or

that it had exercised it erroneously.

12. There is no dispute that the appellant was given a notice of hearing.

There is also no dispute that the appellant did not produce any evidence as to

how his registration in Sikkim was a valid registration. This is because there was

no dispute that he stayed in Sikkim just for a few months, and he has himself

contended that he did not have any documentary evidence to claim that he

stayed in Sikkim for five years, or that he had the necessary experience of not

less than five years of work in dispensing medicines in Sikkim. This is because at

the highest, his case with respect to his qualification was one under Section 31

sub-clause (d) of the Act.

13. It is true that section 32 of the Act does entitle a registered pharmacist in

one State to have his name entered in the register of another State. Section 33

of the Act, however, gives the power of scrutiny to the State Council and every

enrolment is subject to the scrutiny. Thereafter, if the State Council receives

any complaint concerning the eligibility of a person to function as a pharmacist,

the Executive Committee of the Council does have the power to make necessary

enquiry under Section 36 of the Act, and if satisfied, to remove the name of such

a registered pharmacist though after giving him a reasonable opportunity of

being heard. Sub-section (i) of Section 36 (1) gives the grounds on which a

name can be removed from the register. In the instant case, the Executive

Committee was satisfied that there was an error in enrolling the appellant as a

registered pharmacist. At that stage, the appellant has been called upon to give

his explanation. In this enquiry, one State Council can certainly look into the

prima-facie material on the basis of which registration was granted in another

State. This is because the State Council is given the power to scrutinize such

applications, and if such registration has been permitted by any error to that

extent, it can certainly take the corrective step. Such a decision cannot amount

to sitting in appeal over the decision of another State’s Council. This is because

the concerned State Council is answerable to the persons purchasing the

medicines from the pharmacists in the State. It is its duty to see that

pharmacists do have necessary educational qualifications or the experience as

required. In a country where there is so much illiteracy, the requirements

concerning educational qualifications or experience of the pharmacist have to be

scrupulously scrutinized. If the registration of the concerned pharmacist

obtained from another state does not appear to be a justified registration, the

transferee State Council can certainly decline to accept that registration for the

purpose of carrying on the profession of a pharmacist in the transferee State, or

cancel such registration once effected. Such scrutiny is permissible at the time

of initial registration, and also later when complaints are received, leading to the

enquiry for the purpose of removal from their register.

14. It was submitted on behalf of the appellant that in the instant case,

the act did not provide a solution to this type of problem. The appellant relied

upon the judgment of this Court in Maruti Wire Industries Pvt. Ltd. Vs.

S.T.O. 1st Circle, Mattancherry reported in 2001 (3) SCC 735 to submit

that where the Legislature was silent about any particular aspect, the same could

not be supplied by judicial interpretative process. As seen above, in the instant

case, the provisions of the Act are sufficiently clear, and therefore, the actions of

the respondent could not be faulted.

15. The purpose of a welfare statute cannot be permitted to be

defeated by the methods such as the one employed by the appellant. As stated

earlier, the Act is passed for making better provisions for the regulation of the

profession and practice of pharmacy. As is seen, the primary qualification for

such a person is to have a degree or diploma in pharmacy. It is only as an

alternative qualification that some other degree with three years experience is

permitted. The last alternative qualification is that of five years experience in

dispensing drugs which has to be in the concerned State. This is because under

Section 31 of the Act, the person who wants to be registered as a pharmacist

has to be of 18 years of age, and he has to reside and carry on the business or

profession of pharmacy in that particular state. The State Pharmacy Council

which issues the certificate of registration ought to satisfy itself that the person

concerned did have atleast five years of experience, and which experience has

obviously to be in that State for the State Council to assess it. In the instant

case, the appellant did not reside or carry the business or profession of

pharmacy or dispensing of drugs in Sikkim for more than five years. If any such

method, as adopted by the appellant is permitted, persons who claim to have

experience of five years in one State, will go to another State for a few months

only to obtain registration in that State, and thereafter seek transfer of that

registration to their own state. In the instant case, the first respondent did not

have any opportunity to examine as to whether the appellant did have the

experience of five years in Rajasthan. The only submission of the appellant is

that the papers which concerned the so-called experience were submitted to the

Sikkim Tribunal alongwith the certificate of employer of the appellant in Sikkim

where he worked for just two months. The consequences of accepting

appellant’s plea will mean that the transferee State will have to accept a person

as a pharmacist when it did not have the opportunity to examine the material

with respect to his experience of more than five years. The requirement of five

years experience in the registering State will be defeated if any such methods

are permitted.

16. In the circumstances, we do not find any error in the decision of

the first respondent in canceling registration of the appellant, nor the decision of

the Single Judge as well that of the Division Bench approving the same.

17. We therefore, pass the following order:

(a) The Civil Appeal is, hereby dismissed.

(b) There will be no order as to costs.

………………………………….J.

( P. Sathasivam )

…………………
………………..J. ( H.L. Gokhale ) New Delhi Dated: February 6, 2012

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