Chief Executive Trustee Lisie Medical and Educational Institutions v. Kerala University of Health Sciences & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY** ## **&** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** **WA.No.873 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 30506/2018(K) OF HIGH COURT OF KERALA DATED 8.2.2019** ## **APPELLANT/PETITIONER:** **THE CHIEF EXECUTIVE TRUSTEE LISIE MEDICAL AND EDUCATIONAL INSTITUTIONS, KOCHI-682 018.** **BY ADVS.** **SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM SRI.THOMAS GEORGE** ## **RESPONDENTS/RESPONDENTS:** **1 THE KERALA UNIVERSITY OF HEALTH SCIENCE, REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O., TRICHUR-680 596. 2 THE VICE CHANCELLOR, KERALA UNIVERSITY OF HEALTH SCIENCE, MEDICAL COLLEGE P.O., TRICHUR-680 596.** **3 PHARMACY COUNCIL OF INDIA REPRESENTED BY ITS SECRETARY, COMBINED COUNCIL'S BUILDING, TEMPLE LANE, KOTLA, DELHI—110 002.** **4 UNION OF INDIA REPRESENTED BY SECRETARY OF GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, NIRMAN BHAVAN, N.DELHI-110 011.** **R1-2 BY SRI.P.SREEKUMAR,SC,KERALA UTY. OF HEALTH SCIENCE R3-4 BY SMT.O.M.SHALINA, CGC** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02-09-2019, THE COURT ON 05-09-2019 DELIVERED THE FOLLOWING:** ## **W.A.No.873 of 2019** ## **-:2:-** ## **“C.R.”** ## **JUDGMENT** ## **Hrishikesh Roy, C.J.** Heard Sri.Kurian George Kannanthanam, the learned Senior counsel appearing for the appellant/writ petitioner. Also heard Sri.P.Sreekumar, the learned standing counsel appearing for the Kerala University of Health Sciences (hereinafter referred to as “the University”) and their Vice Chancellor (respondent Nos.1 and 2). The Pharmacy Council of India and the Union of India (respondent Nos.3 and 4), are represented by Smt.O.M.Shalina, the learned Central Government Counsel. 2. The W.P(C).No.30506 of 2018 was filed by the Chief Executive Trustee of the Lisie Medical and Educational Institutions, who were proposing to start B.Pharm programme. The University had granted the consent on 13.09.2018 (Ext.P6), to commence the course but stated that in addition to the approval they have secured, from the All India Council for Technical Education (AICTE), prior approval from the Pharmacy Council of India, in accordance with Section 12(1) of the Pharmacy Act, 1948 (hereinafter referred to as the “Pharmacy Act”), would be needed. Since this was stipulated by the court while analogously disposing of the Writ Petition, in this Appeal, that portion of the judgment dated 08.02.2019 is challenged by the aggrieved writ petitioner. 3. The learned Senior Counsel for the appellant would refer to Section 12 of the Pharmacy Act to point out that only when course already commences, the approval can be mandated from the Pharmacy Council, for the purpose of conducting examination but for a proposal, which has already been approved by the AICTE, such approval from the Pharamcy Council is unnecessary. The counsel would refer to Section 10 of the Pharmacy Act and the Regulations framed thereunder to argue that insistence of a prior approval of ## **W.A.No.873 of 2019** ## **-:3:-** the Pharmacy Council of India is inconsistent with the legal requirement, prescribed under Section 12 of the Pharmacy Act. Also according to the Senior Counsel, the Clause 9(1) of the Regulations framed by the Pharmacy Council, is ultra vires the provisions in Section 10 and Section 12(1) of the Pharmacy Act. 4. On the other hand, the learned Standing Counsel for the University Sri.P.Sreekumar would submit that the approval by the AICTE is usually granted even without inspection of the facilities and the course materials/curriculum, in the proposed institution. He therefore argues that it would be reasonable to interpret the statutory provisions to mean that prior approval of the Pharmacy Council should be mandatory, even for commencement of the course. 5. This Appeal was admitted on 22.3.2019 and interim order was passed staying that part of the impugned judgment, which found that the prior approval of the Pharmacy Council of India would be necessary, for starting a B.Pharm programme even in a situation where, the approval from the AICTE is already secured by the Appellant. 6. In course of hearing, reference is made to the Kerala University of Health Sciences Act, 2010 (hereinafter referred to as “the Kerala University Act”). The Section 44 of the Kerala University Act permits the Academic Council of the University to make Regulations in the manner prescribed by Statute, providing for all or any of the matters, pertaining to the courses of studies and conduct of examinations, admission of students, recognition of examinations, degrees and diplomas and so on. The Chapter VII of the Kerala University Act deals with permission, affiliation and recognition of colleges. Under Section 50, the University is obliged to accord affiliation to all professional colleges (imparting education in Pharmacy and other paramedical and allied subjects), owned by ## **W.A.No.873 of 2019** ## **-:4:-** the Government or operated by self-financing educational agencies. The Section 51 provides for the procedure for permission and requires the University, to prepare a perspective plan for educational development for the location of institutions, to ensure equitable distribution of facilities for higher education. The Section 53 relates to the continuation of affiliation and under sub-section (3), an affiliated college with at least six years standing, may apply for permanent affiliation, in the prescribed manner. 7. In exercise of the powers conferred by Section 41(1) of the Health Sciences Act, the Government of Kerala notified the Kerala University of Health Sciences First Statutes, 2013 (hereinafter for short “the Statute”). The Chapter XXI of the Statute deals with affiliation of colleges and the procedure to be adopted in granting affiliations. For new colleges applying for affiliation, the form is prescribed where, details pertaining to the individual/agency proposing to start the college, their location, information of other colleges within 20 Kilometers radius, details of infrastructure and faculty proposed to be provided and the subjects for which affiliation is sought, are the details required to be furnished. Only when the University is satisfied after conducting inspection and physical verification and assessing the suitability, affiliation can be granted. Unless all the stipulated conditions are fulfilled, no new college/additional course or enhancement of seats shall be permitted, for the concerned year. The University may issue consent for affiliation subject to obtaining the Essentiality Certificate from the Government. When conditional affiliation is granted, the affiliation shall cease automatically if the stipulated conditions are not fulfilled. 8.1. The Pharmacy Act, 1948 (hereinafter referred to as the “Pharmacy Act”) was enacted to make better provision for the regulation of the profession and practice of ## **W.A.No.873 of 2019** ## **-:5:-** Pharmacy. The Pharmacy Act (Act 8 of 1948) is a pre-constitution enactment. The statement of objects and reasons of the Act, is to establish a Central Council of Pharmacy which will prescribe the minimum standards of education and approve courses of study and examinations for Pharmacists and provincial Pharmacy Councils which will be responsible for maintenance of provincial registers of qualified Pharmacists. The Act was amended by the Act 70 of 1976 with the object to provide for wider representation in the Pharmacy Council of India by providing representatives of the Union Territory, as also of the University Grants Commission and the AICTE and also to empower the Pharmacy Council of India to keep non specialist members as members of its committee. The Section 2(i) defines "registered pharmacist" as meaning a person whose name is entered on the register of the State in which he is for the time being, residing or carrying on his profession or business of pharmacy. The Section 3 provides for Constitution and composition of Central Council. The said Council so constituted shall include a representative of the University Grants Commission and a representative of the AICTE as well. The Section 10 provides that the Central Council may subject to the approval of the Central Government, make regulations, to be called the Education Regulation, prescribing the minimum standard of education required for qualification as a pharmacist on the following and without prejudice to the generality of the power (a) the nature and period of study and of practical training to be undertaken before admission to an examination; (b) the equipment and facilities to be provided for students undergoing approved courses of study; (c) the subjects of examination and the standards therein to be attained and (d) any other conditions of admission to examinations. 8.2. The Section 12 makes a provision for approval of courses of study and examinations for Pharmacists. As per the said Section, an authority which conducts a course of study for pharmacists may apply to the Central Council for approval of the course, and the ## **W.A.No.873 of 2019** ## **-:6:-** Central Council, if satisfied, after such enquiry as it thinks fit to make, that the said course of study is in conformity with Education Regulations, shall declare the course to be an approved course of study for the purpose of admission to an approved examination for pharmacists. Equally, an authority which holds an examination in pharmacy may apply to the Central Council for approval of the examination, and the Central Council, if satisfied, after such enquiry as it thinks fit to make, that the said examination is in conformity with the Education Regulations, shall declare the said examination to be an approved examination for the purpose of qualifying for registration as a pharmacist under this Act. Under Sub-section (3) of Section 12, every authority which conducts an approved course of study or holds an approved examination shall furnish such information as the Central Council may, from time to time, require as to the courses of study and training and examination to be undergone, as to the ages at which such courses of study and examination. Under Section 13, the Central Council is empowered to withdraw the approval granted in the event the approved course of study or an approved examination does not continue to be in conformity with the Education Regulations. The Section 15(A) provides for maintenance of register of pharmacists to be known as Central Register which shall contain the names of all persons entered in the register for States. Under Section 15(B) of the Act, the Registrar of the Central Council shall on receipt of the report of registration of a person in the register for a State, enter his name in the Central Register. Under Section 29 of the Act, every State Government shall prepare and keep a register of pharmacists for the State. Qualifications for entry on first register is provided under Section 31 of the Act and the said Section reads as under:- "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 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 ## **W.A.No.873 of 2019** ## **-:7:-** the case may be, or a prescribed qualification granted by an authority outside 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 of medical practitioners for a total period of not less than three years, or, has passed an examination recognised as adequate by the State Government for compounders or dispensers, 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." ## 8.3. The Section 32(A) also provides for registration of displaced persons in the register kept by the State Council. The Section 32(B) relates to displaced persons, repatriates and other persons. After the registration under Sections 32, 32(A) and 32(B), the State Council shall forward the list to the Central Council for entering the names in the Central Register as provided under Section 15(B) of the Act. By virtue of the powers under Section 10 of the Act, the Pharmacy Council of India had also framed Education Regulation, 1991 prescribing minimum qualification for admissions, duration of the course, course of study, syllabi, approval of the authority conducting the course of study, conduct of examinations etc., which was also approved by the Government of India, Ministry of Health, notified on 11.7.1992 as amended by a subsequent notification dated 9.7.1994. 9. A combined reading of the statements and objects of the Pharmacy Act and the above provisions would indicate that the Act was enacted to make better provision for the regulation of the profession and practice of pharmacy and for that purpose to constitute Central Pharmacy Council and State Pharmacy Councils. 10. The All India Council for Technical Education Act, 1987 (hereinafter referred to as “the AICTE Act”) was enacted with a view to proper planning and co-ordinated development of the technical education system in the country and promotion of qualitative ## **W.A.No.873 of 2019** ## **-:8:-** improvement of such education and proper maintenance of norms and standards in the technical education. In the definition of “technical education” under Section 2(g), besides several other programmes of education, “pharmacy”, is included. The Section 2(h) defines “technical institution” as an institution which offers courses or programmes of technical education. The AICTE Act envisages establishment of the Council as a body corporate with its head office at Delhi. The constitution of the AICTE Council is provided under Section 3(4) and sub-clause (m) thereof indicates that representative of the Pharmacy Council of India is to be one of the seven members to be appointed by the Central Government. In the powers and functions of the Council specified in the Section 10 of the AICTE Act, it is provided that the AICTE Council may lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, assessment and examinations. The Section 10(k) permits the AICTE Council to grant approval for starting new technical institutions and for introduction of new courses or programmes. The Council is also vested with power to issue guidelines for admission of students to technical institutions and Universities. 11. The objects and reasons of the AICTE Act and its provisions would undoubtedly reveal that the Act was enacted duly taking into note of the fact that most of the institutions have serious deficiencies in terms of rudimentary infrastructure necessary for imparting proper education and training and also to vest statutory powers to regulate and maintain standards of technical education in the country upon the AITCE. The said enactment is a special enactment insofar as laying down norms and standards for courses, curricula, physical and instructional facilities, staff pattern and other qualifications, quality assessment and examinations as well as for grant of approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned. ## **W.A.No.873 of 2019** ## **-:9:-** 12. When we analyse the provisions of the Pharmacy Act and the AICTE Act, it can be easily seen that the Pharmacy Act is intended to occupy the field for regulating the profession of pharmacy whereas, the AICTE Act is enacted with a view to ensure proper planning and co-ordinated development of technical education and to ensure maintenance of norms and standards in technical education and matters connected thereto. The question then is whether there is conflict in the provision made by the two enactments. At this point, we must again remember that the Pharmacy Act is the pre-constitutional statute enacted in the year 1948. On the other hand, the AICTE Act is relatable to Entry 66 of the List I of 7[th] Schedule to the Constitution. The AICTE Act, in the matter of laying down norms and standards for studies in the field of pharmacy, duplicates some of the subjects covered by the Pharmacy Act. But the key question to be answered here is which of the authorities under the two Acts, would regulate the education, in courses in Pharmacy. 13. The contention of the learned Senior Counsel for the appellant is essentially that, in view of the specific provisions of the AICTE Act that are designed to ensure maintenance of norms and standards in technical education, the provisions of Section 10 of the Pharmacy Act and the Regulations framed thereunder are to be treated as impliedly repealed by the post constitutional statute viz-the AICTE Act. It is therefore contended that in view of the approval obtained by the appellant institution from the AICTE, a similar approval from the Pharmacy Council of India is not called for. It is his further contention that even if an approval is required, it can only be construed as a post facto approval and not a prior approval as insisted upon in the instant case. 14. In State of Uttarakhand and Others v. Kumaon Stone Crusher reported in ## **W.A.No.873 of 2019** ## **-:10:-** (2018)14 SCC 537, in the context of the Forest Act, 1927, a pre-constitutional enactment and the Mines and Minerals (Development and Regulation) Act, 1957, the Supreme Court had the occasion to refer to the doctrine of pith and substance and held that the preconstitutional law would continue to exist. Most relevantly for this case, the Supreme Court on that occasion, enunciated on the proposition of implied repeal, in the following terms: “......................... …..................... …................... ….............. 94. Justice G.P. Singh in Principles of Statutory interpretation, 14[th] Edition, explained the implied repeal as follows: “There is a presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio uniusest exclusio alterius. Further, the presumption will be comparatively strong in case of virtually contemporaneous Acts. The continuance of existing legislation, in the absence of an express provision of repeal, being presumed, the burden to show that there has been a repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act ‘that the two cannot stand together'. But, if the two may be read together and some application may be made of the words in the earlier Act, a repeal will not be inferred.” 95. This Court in Municipal Council, Palai through the Commissioner of Municipal Council, Palai vs. T.J. Joseph in AIR 1963 SC 1561, has elaborated the concept of implied repeal in the following words: “9. It is undoubtedly true that the legislature can exercise the power of repeal by implication. But it is an equally well-settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. Of course, this presumption will be rebutted if the provisions of the new act are so inconsistent with the old ones that the two cannot stand together. As has been observed by Crawford on Statutory Construction, p.631, para 311: “There must be what is often called ‘such a positive repugnancy between the two provisions of the old and the new statutes that they cannot be reconciled and made to stand together’. In other words they must be absolutely repugnant or ## **W.A.No.873 of 2019** ## **-:11:-** irreconcilable. Otherwise, there can be no implied repeal...for the intent of the legislature to repeal the old enactment is utterly lacking.” The reason for the rule that an implied repeal will take place in the event of clear inconsistency or repugnancy, is pointed out in Crosby v. Patch and is as follows: - “As laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Bowen v. Lease (5 Hill 226). It is a rule, says Sedgwick, that a general statute without negative words will not repeal the particular provisions of a former one, unless the two acts are irreconcilably inconsistent. ‘The reason and philosophy of the rule,’ says the author, ‘is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to effect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all.” For implying a repeal the next thing to be considered is whether the two statutes relate to the same subject-matter and have the same purpose. Crawford has stated at p. 634: “And, as we have already suggested, it is essential that the new statute cover the entire subject matter of the old; otherwise there is no indication of the intent of the legislature to abrogate the old law. Consequently, the later enactment will be construed as a continuation of the old one.” The third question to be considered is whether the new statute purports to replace the old one in its entirety or only partially. Where replacement of an earlier statute is partial, a question like the one which the court did not choose to answer in the Commissioners of Sewers case would arise for decision. 10. It must be remembered that at the basis of the doctrine of implied repeal is the presumption that the legislature which must be deemed to know the existing law did not intend to create any confusion in the law by retaining conflicting provisions on the statute book and, therefore, when the court applies this doctrine it does no more than give effect to the intention of the legislature ascertained by it in the usual way i.e. by examining the scope and the object of the two enactments, the earlier and the later.” 96. The question of repeal by implication arises when two statutes become inconsistent to the extent that competence of one is not possible without disobedience to other. 97. The principles for ascertaining the inconsistency/repugnancy between two statutes were laid down by this Court in Deep Chand vs. State of U.P and others, AIR 1959 SC 648. K. Subba Rao, J. speaking for the Court stated following in paragraph 29: ## **W.A.No.873 of 2019** ## **-:12:-** “29……Repugnancy between two statutes may thus be ascertained on the basis of the following three principles: (1) Whether there is direct conflict between the two provisions; (2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field.” 98. The Constitution Bench in State of Kerala and others vs. Mar Appraem Kuri Company Limited and another, 2012 (7) SCC 106, had occasion to consider when by a subsequent enactment the case of pro tanto repeal can be read. In the above case State of Kerala had enacted Kerala Chitties Act, 1975. The Seventh Schedule of the Constitution, List III Entry 7 pertains to contracts including special forms of contracts. The Parliament enactment, Chit Funds Act, 1982 and State legislature Kerala Chitties Act, 1975, the subject being under concurrent list, in paragraph 27, the Court held that when there is a conflict in respect of a matter in the concurrent list between Parliamentary and the State legislations, Parliamentary legislation will pre-dominate by virtue of non obstante clause of Article 254 and by reason of Article 372 sub-clause (1). This Court held that the legislative intent to abrogate or wipe off the former enactment is to be looked into to find out whether it is a case of pro tanto repeal. Following was stated in paragraph 19: “19. Further, the learned counsel emphasised on the words “to the extent of the repugnancy” in Article 254(1). He submitted that the said words have to be given a meaning. The learned counsel submitted that the said words indicate that the entire State Act is not rendered void under Article 254(1) merely by enactment of a Central law. In this connection, it was submitted that the words “if any provision of a law” and the words “to the extent of the repugnancy” used in Article 254(1) militate against an interpretation that the entire State Act is rendered void as repugnant merely upon enactment by Parliament of a law on the same subject.” ..................... …..................... …................... …..............” 14.1. When we apply the tests laid down by the Supreme Court in the aforesaid case to the facts in this Appeal, while a degree of overlap between the regulatory measures under the AICTE Act and those under the Pharmacy Act is visible, it cannot be said that there is a direct conflict between the two regulatory measures. In our view, while the approval procedure under the AICTE Act may ensure the maintenance of the minimum standards and norms, including with regard to educational infrastructure, applicable generally to all technical courses, including Pharmacy courses, the regulatory procedure under Section 10 of the ## **W.A.No.873 of 2019** ## **-:13:-** Pharmacy Act will ensure the maintenance of such standards, norms and infrastructural requirements with particular reference to Pharmacy courses. In other words, the regulatory sweep of the AICTE Act was not intended to do away with the Pharmacy specific regulatory measures that are contemplated under Section 10 of the Pharmacy Act. 14.2. The insistence by the University that the appellant institution must obtain the prior approval of the Pharmacy Council of India before seeking an affiliation with the University cannot in our view be said to be unreasonable or illegal. We might also note in this connection that the Supreme Court in a recent order dated 24.7.2018, while dismissing an SLP preferred by a college (SLP Diary No.24798 of 2018), directed the AICTE to revisit its statutory provisions to examine whether it was desirable to include Pharmacy courses within the ambit of technical education. This should therefore be seen as a further pointer that Pharmacy courses are better regulated in terms of the Pharmacy Act. 14.3. Resultantly, we see no reason to interfere with the finding of the learned single Judge on this issue. For the reasons stated in the impugned judgment, as supplemented by the reasons in this judgment, the Appeal is dismissed as one devoid of merit. 14.4. Before parting with this Appeal, we might take note of the liberty that was reserved by the learned single Judge in respect of the students admitted by the Appellant to the B.Pharm course before obtaining affiliation from the University. The learned Judge permitted the said students to appear for the examination subject to approval to be granted by the Pharmacy Council of India for the academic year 2018-2019. It would appear that during the pendency of this Writ Appeal, although the Appellant attempted to submit an online application to the Pharmacy Council of India for approval, it could not do so as the online facility was blocked by the Pharmacy Council of India. A regular application was also not entertained. Under such circumstances, while dismissing the Writ Appeal, we direct that if the ## **W.A.No.873 of 2019** ## **-:14:-** applicant prefers an application for approval before the Pharmacy Council of India within a period of three weeks from today, the Pharmacy Council of India shall treat the same as one seeking approval for the B.Pharm course for the academic year 2018-2019, solely for the purpose of protecting the interest of those students who were permitted by the learned single Judge to appear for the examinations and are currently pursuing the said course in the Appellant's institution. The Pharmacy Council of India shall consider and pass an order on the said application, as directed, within a period of 4 weeks from the date of receipt of the application from the Appellant institution. Sd/- **Hrishikesh Roy, Chief Justice** Sd/- **A.K.Jayasankaran Nambiar, Judge** /TRUE COPY/ P.A. TO JUDGE **vpv**