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;
(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; 76A]
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][76D-E; 77-C-D]
1.3 The Constitution Bench consisting of 11 Judges, of this Court 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 the Constitution of India, all citizens and religious denominations are conferred with a right to establish and maintain educational institutions. The Constitution Bench in Islamic Academy of Education holds that the State would be entitled to impose restrictions and make regulations both in terms of Article 19(1)(g) and Article 30 of the Constitution of India for maintaining excellence in the standard of education. It has been held that regulatory measures are necessary for ensuring orderly, efficient and sound administration. The Constitution Bench, consisting of Seven Judges, of this Court in P.A. Inamdar has again reiterated that the right to impart education is a fundamental right under Article 19(1)(g) and, therefore, subject to control by clause (6) of Article 19. It has been held that such a right is subject to the laws imposing reasonable restrictions in the interest of the general public. It has further been held that the laws may be enacted for prescribing the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business. The laws could also be enacted for the purposes of the carrying on by the State, or by a corporation owned or controlled by the State of any trade, business, industry or service whether to the exclusion, complete or partial of citizens or otherwise. In the case of Modern Dental College and Research Centre, the Constitution Bench, consisting of Five Judges, of this Court held that though private unaided minority and non-minority institutions have a right to establish educational institutions, in order to balance the public interest, the State is also empowered to frame Regulations in the interest of general public. This Court held that, while considering the scope of reasonable restrictions which are sought to be brought in, in the interest of the general public, the exercise that is required to be undertaken is the balancing of the fundamental rights to carry on a trade or occupation on one hand and the restrictions so imposed on the other hand. This Court held that it was necessary to find out as to whether the restrictions so imposed were proportional or not. It is thus clear that though there is a fundamental right to establish educational institutions, the same can be subject to reasonable restrictions, which are found necessary in the general public interest. However, the question that requires to be answered is as to whether the same can be done by executive instructions or not. [Paras 35, 37, 39-41][77-G-H; 78-E-F; 79-C-H] T.M.A. Pai Foundation and Others v. State of Karnataka and Others (2002) 8 SCC 481 : [2002] 3 Suppl. SCR 587; Islamic Academy of Education and another v. State of Karnataka (2003) 6 SCC 697 : [2003] 2 Suppl. SCR 474; P.A. Inamdar and Others v. State of Maharashtra and Others (2005) 6 SCC 537 : [2005] 2 Suppl. SCR 603; Modern Dental College and Research Centre and others 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, of this Court in the case of State of M.P. vs. Thakur Bharat Singh holds that the State or its officers cannot exercise its executive authority to infringe the rights of the citizens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is issued. It could thus be seen that the Constitution Bench holds that even an Executive cannot do something to infringe the rights of the citizens by an executive action, though the State Legislature has legislative competence to legislate on the subject. [Paras 47, 48][81-C-D] State of M.P. v. Thakur Bharat Singh (1967) 2 SCR
454 – followed.
Shrimati Hira Devi and Others v. District Board, Shahjahanpur (1952) SCR 1122 – relied on.
1.5 Since this Court has held that the right to establish an educational institution is a fundamental right under Article 19(1)(g) of the Constitution of India and reasonable restrictions on such a right can be imposed only by a law and not by an execution instruction, the Division Bench of the Bombay High Court, Aurangabad Bench, in Sayali Charitable Trust’s College of Pharmacy case does not lay down the correct position of law. The view taken by the High Courts of Karnataka, Delhi and Chhattisgarh lays down the correct position of law. Since this Court has held that the Resolutions/communications dated 17th July 2019 and 9th September 2019 of the Central Council of the appellant-PCI, which are in the nature of executive instructions, could not impose restrictions on the fundamental right to establish educational institutions under Article 19(1)(g) of the Constitution of India, it is not found necessary to consider the submissions advanced on other issues. The Resolutions/communications dated 17th July 2019 and 9th September 2019 of the Central Council of the appellant-PCI are liable to be struck down on this short ground. [Paras 54, 55][84-A-D]
Sayali Charitable Trust’s College of Pharmacy v. The Pharmacy Council of India Judgment dtd.06.11.2020 of the Bombay High Court, Aurangabad Bench – held not correct law.
1.6 There could indeed be a necessity to impose certain restrictions so as to prevent mushrooming growth of pharmacy colleges. Such restrictions may be in the larger general public interest. However, if that has to be done, it has to be done strictly in accordance with law. If and when such restrictions are imposed by an Authority competent to do so, the validity of the same can always be scrutinized on the touchstone of law. This Court, therefore, refrains from considering the rival submissions made on that behalf. The applications seeking approval for D. Pharm and B. Pharm courses are required to be accompanied by a “No Objection Certificate” (“NOC”) from the State Government and consent of affiliation from the affiliating bodies. While scrutinizing such applications, the Council can always take into consideration various factors before deciding to allow or reject such applications. Merely because an institution has a right to establish an educational institution does not mean that such an application has to be allowed. In a particular area, if there are more than sufficient number of institutions already existing, the Central Council can always take into consideration as to whether it is necessary or not to increase the number of institutions in such an area. However, a blanket prohibition on the establishment of pharmacy colleges cannot be imposed by an executive resolution. [Paras 56, 57][84-E-H]
1.7 In the result, the appeals filed by the Pharmacy Council of India are dismissed. The writ petitions filed by the institutions shall stand disposed of in terms of the above. [Paras 58, 59][85B]
2. CIVIL APPEAL ARISING OUT OF SPECIAL LEAVE
PETITION (CIVIL) NO.1887 OF 2022 [SHAHEED TEG BAHADUR COLLEGE OF PHARMACY VS. PHARMACY
COUNCIL OF INDIA]
In view of the judgment passed by this Court today in Civil Appeal arising out of Special Leave Petition (Civil) No.19671 of 2021 and connected matters, this appeal has been rendered infructuous and is disposed of as such. [Para 62][85-E] Jawaharlal Nehru Technological University Registrar v. Sangam Laxmi Bai Vidyapeet and Others (2019) 17 SCC 729 : [2018] 14 SCR 103; Jigya Yadav (Minor) (Through Guardian/Father Hari Singh) v. Central Board of Secondary Education and others (2021) 7 SCC 535 : 2021 (6 ) JT 177 – distinguished.
Star India Private Limited v. Department of Industrial Policy 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 Bank of India and Another (1982) 2 SCC 7 : [1982] 3 SCR
411 – relied on.
Madhya Bharat Cotton Association Ltd. v. Union of India and Another AIR 1954 SC 634; Modern School vs. Union of India and Others (2004) 5 SCC 583 : [2004] 1 Suppl. SCR 668; Padubidri Damodar Shenoy v. Indian Airlines Limited and Another (2009) 10 SCC
514 : [2009] 14 SCR 356; Vijay S. Sathaye v. Indian Airlines Limited and Others (2013) 10 SCC 253 : [2013]
10 SCR 73; Index Medical College, Hospital and Research Centre v. State of Madhya Pradesh and Others 2021 SCC OnLine SC 318 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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