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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL/APPELLATE JURISDICTION

TRANSFERRED CASE (CIVIL) NOS……………...OF 2020 [TRANSFER PETITIONS (CIVIL) NOS. 87-101 OF 2014]

The Pharmacy Council of India .. Petitioner  

Versus

Dr. S.K. Toshniwal Educational Trusts Vidarbha Institute of Pharmacy and Ors. Etc. .. Respondents

WITH C. A. Nos. 2024-27 of 2020 [SLP (C) NO.4124-4127 OF 2016]

C. A. Nos. 2028-31 of 2020 [SLP (C) NO.26480-26483 OF 2017]

C. A. No. 2032 of 2020 [SLP (C) NO.25160 OF 2017]

C. A. No. 2035 of 2020 [SLP (C) NO.608 OF 2018]

C. A. No. 2036 of 2020 [SLP (C) NO.606 OF 2018]

C. A. No. 2033 of 2020 [SLP (C) NO.9547 OF 2018]

C. A. No. 2034 of 2020 [SLP (C) NO.9546 OF 2018]

C. A. No. 2037 of 2020 [SLP (C) NO.9572 OF 2018]

C. A. No. 2039 of 2020 [SLP (C) NO.1171 OF 2018]

C. A. No. 2038 of 2020 [SLP (C) NO.1151 OF 2018]

C. A. No. 2040 of 2020 [SLP (C) NO.36434 OF 2017]

C. A. No. 2041 of 2020 [SLP (C) NO.26391 OF 2018]

WRIT PETITION (C) NO.926 OF 2018

C. A. No. 2042 of 2020 [SLP (C) NO.26373 OF 2018]

C. A. No. 2043 of 2020 [SLP (C) NO.15328 OF 2019] &

WRIT PETITION  (C) NO.1501 OF 2019

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J U D G M E N T

M. R. Shah, J.

Transfer Petitions (Civil) Nos. 87-101 of 2014 are allowed and Writ Petition

Nos. 3783 of 2013 – Dr. S. K. Toshniwal Educational Trust’s Vidarbha Institute of

Pharmacy vs. The State of Maharashtra & Ors., W.P. No. 3945 of 2013 – Young

Engineer’s Education Society vs. The State of Maharashtra & Ors. pending in the

High Court of Judicature at Bombay, Nagpur Bench, Nagpur, W.P. No. 4992 of

2013 – The Shirpur Education Society & Anr. vs. The State of Maharashtra & Ors.,

W.P. No. 5104 of 2013 – Shri Bhagwan College of Pharmacy vs. The State of

Maharashtra  & Ors.,  W.P.  No.  5150 of  2013 – Kiran  & Ors.  vs.  The State  of

Maharashtra & Ors., W.P. No. 5681 of 2013 – Yashodabai Dagadu Saraf Charitable

Trust  & Anr.  vs.  The  State  of  Maharashtra  & Ors.,  W.P.  No.  5914  of  2013  -

Nagaon  Education  Society’s  Institute  of  Pharmacy,  Nagaon  vs.  The  State  of

Maharashtra & Ors. pending in the High Court of Judicature at Bombay Bench at

Aurangabad, W.P. No. 19253 of 2013 – Aldel Education Trust vs. All India Council

for  Technical  Education,  W.P.  19254  of  2013  –  Shikshan  &  Krushi  Vikas

Pratishthan Medshingi vs. All India Council for Technical Education & Ors., W.P.

19255 of 2013 – K.B.H.S.S. Trust vs. All India Council for Technical Education &

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Ors. pending in the High Court of Judicature at Bombay, W.P. No. 19887 of 2013 –

The Shirpur Education Society & Anr. vs. The State of Maharashtra pending in the

High Court  of Judicature at  Bombay Bench at Aurangabad, W.P. No. 25857 of

2013 – St. Mary’s Group of Institutions Hyderabad vs. The Pharmacy Council of

India & Ors.,  W.P.  No.  26077 of 2013 -  B.  Sridhar & Ors.  vs.  The Pharmacy

Council of India & Ors., W.P. No. 26286 of 2013 – St. Mary’s Group of Institutions

Guntur vs. The Pharmacy Council of India & Ors. pending in the High Court of

Judicature  at  Andhra  Pradesh  at  Hyderabad  and  W.P.  1388  of  2013  –  Kashi

Institute  of  Pharmacy v.  Union of  India  & Ors.  pending in  the High Court  of

Judicature at Allahabad, Lucknow Bench, Lucknow are transferred to this Court.

2. Leave granted in the Special Leave Petitions.

3. As common question of law and facts arise in this group of cases, all these

cases are being decided together by this common judgment and order.

4. In  all  these  petitions,  respective  respondent-Colleges  approached  the

respective High Courts with the grievance regarding actions of  approval  of the

second shift by the Pharmacy Council of India (hereinafter referred to as the PCI)

and restriction on increasing the intake capacity of students for various pharmacy

courses.  Since the respective respondent Colleges increased the intake of students,

based upon the requisite permission/approval obtained from the All India Council

of Technical Education (hereinafter referred to as the AICTE), the respective High

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Courts have allowed the colleges to increase/continue with the increase in intake.

The respective High Courts have concluded that AICTE is the supreme authority

between the two bodies, namely, AICTE and PCI and the decision of AICTE will

prevail  over the decision of PCI.   That, by the interim orders, the High Court

allowed  the  Institutions  to  continue  with  the  increased  number  of  intake  as

approved/permitted by AICTE.  That, in some of the cases, such interim orders

have been made absolute.   Therefore, the issue involved in the present batch of

cases is regarding the applicability of the Pharmacy Act, 1948 (hereinafter referred

to as the Pharmacy Act) or the All India Council of Technical Education Act, 1987

(hereinafter referred to as the AICTE Act) in relation to the subject of Pharmacy,

including approval of courses of study, minimum standards of education required

for qualification as a Pharmacist, registration as a Pharmacist, regulation of future

professional conduct etc.     

SUBMISSIONS OF PCI

5. Shri Maninder Singh, learned Senior Advocate appearing on behalf of PCI

has vehemently submitted the following arguments:

5.1 That having regard to the statutory scheme contained in the Pharmacy Act,

which  is  a  complete  code  by  itself  dealing  with  the  subject  of  pharmacy,  the

jurisdiction for regulating the standards of education in the subject of pharmacy

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and subsequent professional conduct of pharmacists vests entirely in the PCI and

AICTE does not have any jurisdiction or power in this behalf.

5.2 That, as such, the issue involved in the present batch of cases is now not res

integra and is clearly covered by the decision of this Court in the case of AICTE v.

Shri Prince Shivaji Maratha Boarding House’s College of Architecture (2019)

SCC Online SC 1445 = (2019) 16 SCALE 421.  It is submitted that, in the said

case, while dealing with an identical statutory scheme in the case of Council of

Architecture constituted under the Architects Act, 1972 , this Court has held that

even when the definition of “technical education” in Section 2(g) of the AICTE Act

also uses the word “architecture”, the said word would have to be dropped from the

definition of  “technical  education” and shall  be treated as inapplicable in cases

where AICTE imports its regulatory framework.   It is further submitted that, in

that  case,  it  is  held  that  insofar  as  recognition  of  degrees  and  diplomas  of

architecture education is concerned, the Architecture Act, 1972 would prevail and

that AICTE shall not be entitled to impose any regulatory measure in connection

with the degrees and diplomas in the subject of architecture.   Heavy reliance has

been placed upon paragraphs 67 to 70 of the said decision.

That,  in  the  said  decision,  this  Court  considered  the  entirely  identical

statutory scheme contained in  the  Architects  Act,  1972 and therefore the same

would  squarely  apply  for  interpretation  of  the  Pharmacy  Act  as  well.   It  is

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submitted that even in the case of pharmacy, the stand of AICTE is based solely

upon the user of the word “pharmacy” in the definition of “technical education” in

Section 2(g) of the AICTE Act.  It is submitted that having regard to the law laid

down by this Court in the aforesaid decision, as well as the statutory scheme under

the Pharmacy Act, the said word “pharmacy” would deserve to be dropped from

the definition of “technical education” under Section 2(g) of the AICTE Act and

would deserve to be held to be inapplicable in relation to the regulatory measures

for prescribing minimum standards for education in the field of pharmacy.    

5.3 That even otherwise and having regard to the statutory scheme under the

Pharmacy Act, which is a complete code and a special law in relation to subject of

pharmacy, PCI is empowered to not only regulate the profession of Pharmacy, but

also the educational institutions from which persons may obtain the qualification as

a pharmacist and that AICTE does not have any jurisdiction in that behalf.

5.4 That pharmacy is the profession of preparing, preserving, compounding and

dispensing medical drugs.  It is submitted that, under the Pharmacy Act, the PCI

has been constituted as a body empowered to regulate the education and profession

of Pharmacy in India.  It is submitted that PCI has been empowered to determine

and enforce the qualifications required for a person to practice as Pharmacist in

India, including approving courses of study and institutions which may offer such

courses of study to enable one to practice the profession of a pharmacist.    Relying

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upon the Statement of Objects and Reasons of the Pharmacy Act, it is vehemently

submitted by the learned Senior Advocate appearing for PCI that PCI is supposed

to prescribe the minimum standards of education and approve courses of study for

pharmacists.   

5.5 That  pharmacy  is  one  of  the  several  disciplines/subjects  where  the

Legislature  has  laid  down  that  for  imparting  education  in  that  subject,  the

minimum  standards  are  to  be  prescribed  by  an  autonomous  statutory  body

comprising of eminent professionals in the field.    It is submitted that they not only

prescribe the standard of education of different courses in the discipline/subject,

they also lay down eligibility conditions for students as well as teachers, course

content, standards for evaluation of examination etc.  It is submitted that they also

approve the courses in the subject in colleges/institutions on the basis of the laid

down norms by verification by inspections.    It is submitted that the law also deals

with  the  registration  of  the  professionals  in  that  discipline  as  well  as  their

subsequent conduct as registered professionals.   

5.6 That  it  is  very  much  important  and/or  necessary  that  the  autonomous

statutory authority which is made obliged to supervise and monitor the conduct of

professionals by the Legislature in a particular discipline is also given a free hand

to  decide  about  the  standards  of  education,  approval  of  courses/institutions

evaluation of standards of examination and thereafter grant of registration.  

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5.7 That the Legislature has clearly envisaged only one autonomous statutory

authority  to  undertake  all  these  integrated  functions  and  it  is  impossible  to

conceive that in the same very occupied field, another statutory authority, seeks to

assume/usurp jurisdiction thereby creating unsavory practical problems, conflicts

and inconsistencies, thereby defeating the entire objective sought to be achieved by

the Special Law.    

5.8 That  subject  of  Pharmacy  is  a  special  and  not  a  general  subject.   It  is

submitted that it has been exhaustively dealt with by the Parliament through the

Pharmacy Act which exhaustively covers all areas inclusive of approval of courses,

laying down course content, eligibility conditions for students as well as teachers,

evaluation of standards of examination, grant of registration, taking action for any

infamous  conduct  etc.   It  is  submitted  that  this  entire  legislative  objective  is

achieved through the Pharmacy Act and the statutory rules and regulations made

thereunder.  

5.9 That Section 10 of the Pharmacy Act empowers the PCI to frame Education

Regulations   prescribing  the  minimum  standards  of  education  required  for

qualification as a  pharmacist.    It  is  submitted that  as  per  Section 10(2),  such

Education Regulations may prescribe –

(a) the  nature  and  period  of  study  and  of  practical  training  to  be

undertaken before admission to an examination;

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(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;

(d) any other conditions of admission to examinations.

5.10 That the power to approve courses of study and examination is contained in

Section 12 of the Pharmacy Act.  It is submitted that under this provision, any

“authority” in a State that is empowered to conduct a course of study in pharmacy

may apply to the Central Council for approval of the course in accordance with the

Education Regulations.  It is further submitted that likewise, any authority which

conducts  an  examination  in  a  State  for  pharmacy  may  apply  to  the  PCI  for

approval  of  such  examination.    It  is  submitted  that  a  student  who  has

passed/completed an approved course and passed an approved examination may

therefore be registered as a Pharmacist, subject to meeting other requirements. It is

submitted  that  therefore,  under  the  Pharmacy  Act,  the  approval  of  PCI  in

conducting any course of pharmacy is mandatory and, in the absence of the same,

no student can be awarded the degree or diploma for such a course which makes

him entitled for registration as a pharmacist to practice the profession of pharmacy

in the country.   It is submitted that Section 12(1) of the Pharmacy Act empowers

the PCI to grant approval to an Institution which conducts a “course of study” for

pharmacist.   It is submitted that, as per Section 12, an application has to be made

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to the Central Council seeking approval which after such enquiry, as it thinks fit to

make, that the said course of study is in conformity with the Education Regulations

envisaged  under  Section  10  prescribing  the  minimum  standard  of  education

required for qualification as a pharmacist, shall declare the said course of study for

the purpose of admission to be an approved examination for pharmacists.    

5.10.1 That  Section  13  of  the  Pharmacy  Act  also  empowers  the  Central

Council to withdraw approval accorded to the ‘course of study’ and ‘examination’

for failure to comply with the prescribed norms.

5.10.2 That  Section  16  empowers  the  Executive  Committee  to  appoint

inspectors to inspect any institution which provides an approved course of study or

those institutions which apply for approval of course of study or examination.    

5.10.3 That  Section  29  deals  with  the  preparation  and  maintenance  of  a

register of pharmacists.  Section 35 provides for entry of additional qualifications

in the register in relation to any registered pharmacist.  Section 36 provides for the

removal of any person from the register,  either permanently or for a temporary

period.    That it is evident therefore that PCI does not just regulate the provisions

itself, but also plays a vital role in regulating entry into the profession by approving

the  courses  and  examination  which  constitute  appropriate  qualifications  to  be

registered as a pharmacist under Section 32(2).  It is submitted that under Section

42 of the Pharmacy Act, a person may not practice the profession of pharmacy

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unless he or she is registered as a pharmacist in accordance with the Pharmacy Act

and Section 42(2) is a penal provision which states that any person who is not a

registered  pharmacist  and  contravenes  Section  42(1)  shall  be  punishable  with

imprisonment  for  a  term  which  may  extend  to  six  months,  or  with  fine  not

exceeding one thousand rupees or with both.

5.11 That in exercise of powers vested in it under the Pharmacy Act, the PCI has

framed a number of Regulations for prescribing minimum standards of education

as well as regulating the subject of pharmacy in India, including:-

a. Education Regulations, 1991;

b. Pharm. D. Regulations, 2008;

c. Minimum  Qualifications  for  Teachers  in  Pharmacy  Institutions Regulations, 2014;

d. Bachelor of Pharmacy (B. Pharm) Course Regulations, 2014;

e. Master of Pharmacy (M.Pharm) Course Regulations, 2014;

f. Bachelor of Pharmacy (Practice) Regulations, 2014;

g. Pharmacy Practice Regulations, 2015.

5.12 That the aforesaid statutory scheme clearly demonstrates that the field of

Pharmacy is fully occupied with all details and is all pervasive.  It is submitted that

it is fully covered and governed not only by the provisions of the Pharmacy Act,

but  also  supplemented  by  the  statutory  Rules  and  statutory  Regulations  made

thereunder; thereby providing a complete code on the subject of Pharmacy.

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5.13 That the legislative intent in enacting the Pharmacy Act was to ensure that

there is seamless regulation of the profession, both in terms of the qualifications

required to be registered as a pharmacist and the actual practice of pharmacy as a

profession.    It  is  submitted  that  the  same  scheme  has  been  adopted  by  the

Parliament with respect to, inter alia, the legal profession (Bar Council of India),

medical profession (Medical Council of India), architects (Architecture Council of

India), nursing (Nurses Council of India) and dentistry (Dental Council of India).

It is submitted that therefore the Pharmacy Act is a special law dealing with the

subject/field of pharmacy.   

5.14 That,  on  the  other  hand,  the  AICTE  Act  is  merely  to  ensure  that  the

standards  are  maintained  in  the  area  of  technical  education  and  that  it  is  not

intended to take over all aspects of the regulation of specialized education in India

for which specialized regulatory bodies already operate under their respective laws.

It  is  submitted  that  a  perusal  of  the  Statement  of  Objects  and  Reasons  of  the

AICTE  Act  demonstrates  that  AICTE  had  been  for  assisting  and  guiding  the

Central  Government  in  relation  to  policies  on  the  subject  of  engineering  and

similar technical subjects.    That it has not been created to dilute, in any manner

whatsoever, the autonomy and authority of other statutory bodies.   It is submitted

that it does not oversee any course which requires registration of professionals and

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their conduct.  That it has no jurisdiction whatsoever on the subject of medicine,

dentistry, architecture as well as pharmacy.    

5.15 That the scope of powers of the AICTE and the legislative intent behind the

AICTE  Act  has  been  explained  by  this  Court  in  the  case  of  Bharathidasan

University  v.  All-India  Council  for  Technical  Education (2001)  8  SCC  676.

Heavy reliance has been placed on Paragraphs 8 and 10.    

5.16 That therefore the legislative intent behind the AICTE Act is therefore clear.

It is not intended to replace or supersede existing regulatory bodies, but rather was

intended  to  focus  on  coordinating  and  improving  the  standards  of  technical

education across the country in an advisory capacity.   It is submitted that therefore

in the regulation of Pharmacy education, PCI continues to be the regulator of the

educational institutions under the Pharmacy Act.  That in relation to regulation of

educational institutions in the field of Pharmacy, the provisions of the Pharmacy

Act being a Special Law dealing with the subject of “Pharmacy” would prevail

over the AICTE Act, being a General Law for “technical education”.

5.17 That even otherwise the Pharmacy Act being a special law on the subject of

Pharmacy would prevail over the AICTE Act.  It is submitted that it is a settled

position of law that a special law dealing with any subject would prevail over the

general law which may be dealing with the said subject only incidentally.   That

this  principle of  law is also enshrined in the maxim  generalia specialibus non

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derogant.   It is submitted that it is an exception to the principle that a latter statute

would prevail  over an earlier statute.    It is submitted that therefore an earlier

Special Law would prevail over a later General Law.   In support of the above

submissions, heavy reliance has been placed upon the decisions of this Court in the

cases of  UPSEB v. Hari Shanker Jain (1978) 4 SCC 16;  LIC of India v. D.J.

Bahadur (1981)  1  SCC  315  and  Yakub  Abdul  Razak  Memon  v.  State  of

Maharashtra (2013) 13 SCC 1.    

5.18 Relying  upon  the  above  decisions,  it  is  urged  that  even  in  case  of  any

conflict, the Pharmacy Act being a special law dealing with the special subject of

pharmacy would prevail over the AICTE Act being a general law in the field of

technical education.

5.19 That even the submission on behalf of the respondents based on the principle

of ‘implied repeal’ are entirely misconceived and erroneous.   It is submitted that it

has been held by this Court in the case of Municipal Council v. T.J. Joseph (1964)

2 SCR 87 that when two laws are made by the Legislature at different points of

time, dealing with the same subject matter, there is no presumption that the later

law impliedly repeals  the  earlier  law.   Heavy reliance  is  also  placed upon the

decision  of  this  Court  in  Byram Prestonji  Gariwala  v.  Union  Bank  of  India

(1992) 1 SCC 31.  That in the aforesaid decision, it is held by this Court that any

fundamental change/alteration in law cannot be presumed by applying the principle

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of “implied repeal”.  That it is held that any fundamental change/alteration in law,

can only be carried out by explicit words, and not “by a sidewind”.  That therefore,

in the aforesaid decision, the contention based on the principle of “implied repeal”

has been rejected.   

5.19.1 That  therefore  having  regard  to  the   

Statement of Objects and Reasons as well as the scheme of the AICTE Act, as also

explained in para 8 of the judgment in Bharthidarsan case (supra), it is abundantly

clear  that  the  Parliament  has  not  intended  to  fundamentally  alter  the  existing

regime where – from the stage of prescribing the minimum standards of education,

approving the courses of study to the stage of registration and future monitoring of

professional  conduct  of  pharmacist  the  Pharmacy Act  vests  the  PCI  with  such

jurisdiction and power.

5.19.2 That as such the AICTE Act cannot be treated to have, in any manner

whatsoever, affected the jurisdiction and power of the PCI in this behalf.   It is

submitted that therefore AICTE Act cannot be held to have “implied repealed” the

Pharmacy Act and any contention to the contrary would deserve to be rejected by

this Court.

5.19.3 That in the absence of any express or implied legislative intent, the

AICTE Act cannot be held to have repealed the Pharmacy Act and on the contrary,

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the provisions of the Pharmacy Act, being a special law dealing comprehensively

with the subject of Pharmacy, would prevail over the AICTE Act.

5.20 This  Court  while  disposing  of  SLP  (c)  Diary  No.  24798  of  2018  –

Progressive Education Society’s College of Pharmacy v. State of Maharashtra

(dated 24.07.2018) has observed that “it is desirable that the Government of India

should revisit  the definition in Section 2(g) of  the AICTE Act.   Whether there

could  have  been inclusion of  pharmacy when it  was  already converted  by the

Pharmacy Act”.  It is submitted that in fact thereafter in a inter-Ministerial meeting

held  on  30.09.2019  between  the  Minister  of  Health  and  Family  Welfare,

Government of India and Minister of HRD, Government of India, a decision has

been taken that  the  word “pharmacy” would be  deleted  from the  definition of

“technical education” under the AICTE Act.  However, the said amendment is still

to  be  carried  out.   It  is  submitted  that  even  the  proposed  Higher  Education

Commission of India Bill, 2019, which seeks to repeal the UGC and AICTE Acts

and the Allied and Healthcare Professions Bill, 2018, which seeks to bring into

existence a regulatory mechanism for 53 allied and healthcare professions such as

physiotherapists, radiologists, nutritionists etc., have no relation whatsoever with

the PCI.  It is submitted that all the four Councils dealing with Medicine, Dentistry,

Pharmacy and Nursing would continue  to  discharge their  respective  duties  and

activities under special enactments.   

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5.21 That the submission of the respondent Colleges and the AICTE Act to the

effect that PCI can regulate only the grant of Diploma in Pharmacy and not the

further  courses/qualifications,  is  absolutely  erroneous,  misconceived  and

unsustainable in law in view of the specific provisions under Sections 12 and 35 of

the Pharmacy Act.  It is submitted that Sections 12 and 35 makes it abundantly

clear that it is all courses in relation to pharmacy which get covered by the scheme

of the Pharmacy Act.

5.22 That the primary reason of  conflict between the AICTE and PCI was on

account of AICTE permitting colleges to double the intake capacity for courses

where  the  intake  capacity  had been fixed by the  PCI,  and also  on account  of

AICITE permitting the second shift (evening classes) contrary to the regulations of

PCI.    

5.23 That even recently a public notice has been issued by the AICTE which

informs that AICTE is still inviting applications for grant of approval for courses of

Architecture, despite the decision of this Court in  Shri Prince Shivaji Maratha

Boarding House’s College of Architecture  (supra).  That therefore even the said

public notice is in the teeth of this Court’s judgment and order and the same is

nothing but deliberate disobedience of the decision of this Court.

5.24 Making the above submissions and relying upon the above decisions, it is

prayed  to  allow  the  present  petitions  and  hold  that  the  PCI  possesses  the

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jurisdiction and power to regulate the education as well as practice of profession of

pharmacy in relation to all its aspects and AICTE would not have any jurisdiction

or power in that regard.   It is also prayed to hold that the word “pharmacy” in

Section 2(g) of the AICTE Act deserves to be treated as inapplicable in relation to

the regulation of education and practice of profession in pharmacy.

SUBMISSIONS OF AICTE

6. Shri Harish Panday, learned counsel appearing on behalf of the AICTE has

raised the following submissions:  

6.1 That  AICTE  was  originally  set  up  in  the  year  1945  by  a  Government

resolution as a National Expert Body to advise Central and State Government for

ensuring the coordinated development and technical education in accordance with

approved standards and was playing effective role.  It is submitted that taking into

account  the  growing  erosion  of  standard  and  pursuant  to  recommendation,  a

National Working Group was set up in November 1985 to look into the role of

AICTE.   In  order  to  enable  the  AICTE  to  play  its  role  effectively,  it  was

recommended that  council  should  be  given the  statutory power.   The National

Policy of Education 1986 also stipulated that Council will be vested with statutory

power.  A  Bill  was  introduced  to  ensure  proper  planning  and  coordinated

development of Technical Education system in the country.  It is submitted that the

AICTE Act has been enacted with an object to provide for the establishment of an

19

AICTE  with  a  view  to  proper  planning  and  coordinated  development  of  the

technical education system throughout the country; the promotion of qualitative

improvement of such education in relation to planned quantitative growth and the

regulation  and  proper  maintenance  of  norms  and  standards  in  the  technical

education system and for  matters connected therewith.   It  is  submitted that  the

power  and  functions  assigned  to  AICTE  is  not  only  to  prescribe  norms  and

standards but  to inspect,  approve and withhold recognition of  programmes and

institutes.       

6.2 That Section 2(g) of  the AICTE Act defines ‘technical  education” and it

includes “pharmacy”.  Learned counsel on behalf of AICTE has taken us through

various provisions of the AICTE Act and it is submitted that therefore the AICTE

Act has been enacted for regulating and fixing minimum standard for technical

education and education institutions in the field of technical education, as defined

in Section 2(g) of the AICTE Act.   It is submitted that the AICTE Act has been

given all powers for fixing the minimum qualification and standards and regulating

institutions and in case of failure to comply with its rules and regulations, power to

take action, including withdrawal of the approval.   

6.3 That so far as the Pharmacy Act is concerned it is a pre-Constitution Act

which  was  enacted  in  the  year  1948  with  the  primary  object  to  make  better

provisions for regulation of the profession and practice of pharmacy and for that

20

purpose to constitute Pharmacy Council.  It is submitted that perusal of the object,

aim and provisions of  the Pharmacy Act makes it  clear  that  the Pharmacy Act

which is a prior Act has been primarily enacted to regulate the professionals only.

It is submitted that in the year 1987, AICTE has been given the statutory status

with the sole authority to regulate and prescribe minimum norms and standard for

Technical Education and technical instructions as defined under the AICTE Act.  It

is submitted that after coming into AICTE Act, it is entirely within the domain of

the  AICTE Council  to  grant  approval  to  a  new course  or  to  recognize  a  new

institute.    

6.4 That  the  Legislature  in  its  own  wisdom  has  included  Pharmacy  in  the

definition of ‘technical education’ in the AICTE Act and given AICTE powers to

maintain the norms and standard of technical education for proper and coordinated

development of technical education.     

6.5 That the language of AICTE Act is plain and unambiguous and therefore the

court  shall  not  interpret  the  same  in  a  different  manner  only  because  a  harsh

consequence arising therefrom.   Reliance is placed upon the case of Nasiruddin v.

Sita Ram Agarwal (2003) 2 SCC 577.

6.6 That deleting the word “Pharmacy” from AICTE Act which has specifically

been  incorporated  by  the  Legislature  will  amount  to  legislate  which  is  not

permissible, as held by this Court in the case of Union of India v. Deoki Nandan

21

Aggarwal (1992) Supp. 1 SCC 323.  It is submitted that, as held by this Court, the

courts cannot rewrite, recast or reframe the legislation.    

6.7 That as held by this Court in the case of  Ajeet Singh Singhvi v. State of

Rajasthan 1991 Suppl. (1) SCC 343, the courts should always presume that the

Legislature  inserted  every  part  of  the  statute  for  a  purpose  and  the  legislative

intention is that every part of the statute should have effect.  It is further submitted

that as held by this Court in the case of Ajoy Kumar Banerjee v. Union of India

(1984) 3 SCC 127, the later law will prevail.   It is submitted that therefore the

AICTE Act, which is a later Act, shall prevail over the Pharmacy Act.

6.8 That Article 372 of the Constitution provides that notwithstanding the repeal

by the Constitution of the enactments referred to in Article 395, all the laws that

were in force in the territory of India immediately before the commencement of the

Constitution shall continue to remain in force until altered or repealed or amended

by a competent Parliament under Entry-66 of List-I (Union List).  It is submitted

that AICTE Act has been enacted by the Parliament under the Union List, which

covers the same field which was earlier covered by the 1948 Act, namely, to lay

down norms and standards for studies in the field of pharmacy.  It is submitted that

therefore in terms of Article 372 of the Constitution, the 1987 Act to the extent it

covers the same field as covered by the existing law i.e. 1948 Act, will prevail and

the provisions of the 1948 Act to that extent stand repealed/altered.  

22

7. So far as the reliance placed upon by the learned counsel for the petitioner

on the decision of this Court in the case of Bharthidarsan (supra) is concerned, it

is submitted that the said decision shall not be applicable at all to the facts of the

case on hand.  It is submitted that the dispute was with regard to the powers of

UGC  and  AICTE  vis.a.vis  the  Universities  and  in  the  definition  of  ‘technical

institution’ under Section 2(h) of the AICTE Act, Universities have been excluded

and therefore this Court held that AICTE has no jurisdiction over the Universities.

It  is  submitted  that  whereas  Pharmacy  has  been  purposely  included  in  the

definition and under various sections of AICTE Act.     

7.1 So far as the reliance placed upon the decision of this Court in the case of

Shri Prince Shivaji Maratha Boarding House’s College of Architecture  (supra)

by the learned Senior Advocate  appearing on behalf  of  PCI is  concerned,  it  is

submitted that the reliance placed on the said decision is mis-placed as it primarily

relies on the decision of this Court in the case of Association of Management of

Private Colleges v. All Indian Council for Technical Education   (2013) 8 SCC

385 without appreciating the fact that the issue involved in that aforesaid judgment

has been referred to a larger Bench.

7.2 That  even  otherwise  there  is  a  difference  in  the  provisions  between  the

Architect Act and the Pharmacy Act.

23

7.3 That the AICTE Act, 1987 is a later Act than the Pharmacy Act, 1948 and is

a special enactment for laying down norms and standards for courses, curriculum,

physical  and  instructional  facilities,  staff  pattern,  staff  qualification,  quality

instructions, assessment and examination in technical education as well as granting

approval  for  starting  new technical  institution,  introduction  of  new courses  or

variation in intake in the existing courses.  It is submitted that therefore on the

principle of “implied repeal” the provisions of AICTE Act would prevail over the

Pharmacy Act.

7.4 That  pursuant  to  order  passed  by  this  Court  in  the  case  of  Progressive

Education Society’s College of Pharmacy (supra) in a meeting between Minister

of Health and Family Welfare and Minister of Human Resource Development it

was decided to revisit the definition of ‘technical education’ in the AICTE Act by

deleting  “Pharmacy”  from  the  definition  of  ‘technical  education  contained  in

Section 2(g) of the AICTE Act.  It is submitted that, however, it was decided that

till the time it was amended both councils will inspect jointly for the purpose of

grant  of  Approval  and  both  parties  will  withdraw cases  filed  by them.    It  is

submitted that both councils will regulate simultaneously.  

7.5 Making the above submissions, it is prayed to answer the questions/issue

involved in favour of AICTE and hold that the provisions of AICTE Act would

prevail over the Pharmacy Act.

24

OTHER SUBMISSIONS

8. Learned counsel appearing on behalf of respondent No. 5 in SLP (C) Nos.

4124-4127 of 2016, as such, supported the stand of AICTE.  It is submitted that

attempts  should  be  made  that  both  the  Pharmacy  Act  and  AICTE  Act  are

harmoniously construed and the attempts should be made to reconcile both the

provisions.

8.1 Learned counsel appearing on behalf of respondent No. 5 has submitted that

respondent No. 5 does not dispute the authority of PCI to prescribe, approve and

regulate the course of study and examination prescribed to register as pharmacist.

It  is  submitted that,  however, the PCI has limited role and powers and also its

powers  are  limited  to  the  Diploma  in  Pharmacy  and  not  other  courses.   It  is

submitted that the Pharmacy Act does not give direct control to the PCI over the

Institutions.  It is submitted that such a lacuna is filled by the AICTE Act.

8.2 It  is  further  submitted  that  insofar  as  the  seat  intake  is  concerned,  the

Education  Regulation,  1991  lays  down  some  of  the  infrastructural  facilities

required for the diploma courses in Pharmacy course.  It is submitted that AICTE is

empowered  to  decide  on  seat  intake  increase  on  fulfillment  of  infrastructural

requirements.  It is submitted that therefore when there will be full compliance on

the  infrastructural  requirements  laid  down  in  the  Education  Regulations,  still

AICTE can insist on any other compliance as per its own norms.  It is submitted

25

that for the purpose of regulating the profession of pharmacy, course for study and

examination,  PCI  will  have  supremacy  and  on  other  matters  AICTE  and  its

regulations  would  prevail.   It  is  submitted  that  insofar  as  the  profession  of

pharmacy is concerned, the Pharmacy Act is a Special Act.  It is submitted that

insofar  as  regulating  the  technical  institution,  AICTE  is  the  Special  Act  and

therefore the same shall prevail.

8.3 Making  the  above  submissions,  it  is  prayed  that  the  intake  of  the  seats

approved by the AICTE in respect of respondent No. 5 Institution may kindly be

protected.

9. Learned  counsel  appearing  on  behalf  of  the  respective  Institutions  have

further  submitted  that  by  interim  orders  which  in  some  cases  were  final,  the

respective  institutions  are  permitted  to  increase  intake  as  per  the  decision  of

AICTE and the students have studied and the interim orders were passed by the

High Courts in the interest of students, therefore, whatever be the outcome of the

respective cases, the interest of the students and the institutions may be protected.

10. In rejoinder, it is submitted by the learned Senior Advocate appearing on

behalf of the PCI that as such the provisions of the Architects Act, 1972 and the

provisions of the Pharmacy Act, 1948 are similar and  para materia,  except the

non-obstinate clause in Section 17.   It is submitted that, however, a bare perusal of

Section 17 of the Architects Act makes it abundantly clear that the said provision

26

does not have any relation or bearing whatsoever with the power of the Council of

Architecture  to  prescribe  the  minimum  standards  of  education  in  the  field  of

architecture  and  the  said  non-obstinate provision  is  only  with  regard  to  the

registration i.e. to say for practicing architecture, registration under the Architects

Act would be mandatory.     It is submitted that therefore non-existence of any such

similar  provision  in  the  Pharmacy  Act  is  of  no  consequence  or  impact  for

adjudication of the issue involved in the present case.

11. Now, so far as reliance placed upon Article 372 of the Constitution by the

learned Advocate appearing on behalf of the AICTE, it is vehemently submitted by

Shri Maninder Singh, learned Senior Advocate appearing on behalf of the PCI that

even as per Article 372 of the Constitution, unless a pre-constitutional statute is

specifically repealed, it continues to remain in operation.  That, in the present case,

in the absence of any repeal of the Pharmacy Act, 1948, it continues to remain in

operation in India.

OUR CONSIDRATION:

12. As observed hereinabove, the issue involved in the present batch of cases is

regarding the applicability of the Pharmacy Act, 1948 or the AICTE Act, 1987 in

relation  to  subject  of  pharmacy  including  the  approval  of  courses  of  study,

minimum  standards  of  education  required  for  qualification  as  a  pharmacist,

registration as a pharmacist, regulation of future professional conduct etc.  In other

27

words, the question is as to whether the mandate of the PCI or that of the AICTE

would  prevail  on  the  question  of  granting approval  and related  matters  to  any

institution  for  conducting  pharmacy  education  course,  if  there  is  any

conflict/contradictions in  the opinions  of  these two bodies.   The issue  is  as  to

which body, i.e. AICTE or PCI would primarily be responsible for regulation of

pharmaceutical regulation in India.

13. While  answering  the  issues/questions  involved  in  the  present  batch  of

petitions, first of all, what is required to be considered is whether the Pharmacy Act

which is a prior Act to that of AICTE Act can be said to be a special Act with

special  provisions  in  the  field  of  Pharmacy?    The  Statement  of  Objects  and

Reasons for the Pharmacy Act is as under:

“It is desirable that, as in most other countries, only persons who  have  attained  a  minimum  standard  of  professional  education should  be  permitted  to  practise  the  Profession of  Pharmacy.   It  is accordingly  proposed  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 the maintenance of provincial registers of qualified pharmacists.  It is further proposed to empower  Provincial  Governments  to  prohibit  the  dispensing  of medicine on the prescription of a medical practitioner otherwise than by,  or  under  the  direct  and  personal  supervision  of,  a  registered pharmacist.”

As  per  the  Preamble  of  the  Pharmacy  Act,  1948,  the  Pharmacy  Act  has  been

enacted to make better provision for the regulation of the profession and practice of

Pharmacy and for that purpose to constitute Pharmacy Councils.  If we consider

28

the  relevant  provisions  of  the  Pharmacy  Act,  it  covers  all  areas  inclusive  of

approval of courses, laying down course content, eligibility conditions for students

as well as teachers, evaluation of standards of examination, grant of registration,

entry of higher qualification, taking action for any infamous conduct etc.    The

relevant provisions in the Pharmacy Act are Sections 10, 12, 13, 16, 29, 32, 35, 36

and 42.   

13.1 Section  10  of  the  Pharmacy  Act  empowers  the  PCI  to  frame Education

Regulations  prescribing  the  minimum  standard  of  education  required  for

qualification as a pharmacist.  As per sub-section (2) of Section 10, such Education

Regulations may prescribe:

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;

d) any other conditions of admission to examinations.

As  per  Section  12  of  the  Pharmacy  Act,  any  “authority”  in  a  State  that  is

empowered to conduct a course of study in pharmacy may apply to the Central

Council for approval of the course in accordance with the Education Regulations.

Likewise, any authority which conducts an examination of a State for pharmacy

29

may apply  to  the  PCI  for  approval  of  such  examination.   A student  who  has

passed/completed an approved course and passed an approved examination can

only be registered as a Pharmacist subject to meeting other requirements.  Section

13  of  the  Pharmacy  Act  empowers  the  Central  Council  to  withdraw approval

accorded to the ‘course of study’ and ‘examination’ for failure to comply with the

prescribed  norms.   Section  16  of  the  Pharmacy  Act  empowers  the  Executive

Committee  to  appoint  inspectors  to  inspect  any  institution  which  provides  an

approved course of study or those institutions which apply for approval of course

of study or examination.   Section 29 deals with preparation and maintenance of a

register of pharmacists.  Section 35 provides for entry of additional qualifications

in the register in relation to any registered pharmacist.  Section 36 provides for the

removal of any person from the register,  either permanently or for a temporary

period.  As per Section 42 of the Pharmacy Act, a person may not practice the

profession of pharmacy unless he or she is registered as a pharmacist in accordance

with the Pharmacy Act.  Sub-section (2) of Section 42 is a penal provision which

states that any person who is not  a registered pharmacist  and contravenes sub-

section (1) of Section 42 shall be punishable with imprisonment for a term which

may extend to six months, or with fine not exceeding one thousand rupees or with

both.  

30

13.2 In exercise of powers vested in the Pharmacy Act, PCI has framed a number

of  Regulations  for  prescribing  minimum  standards  of  education  as  well  as

regulating the subject of pharmacy in India, including:

a. Education Regulations, 1991;

b. Pharm. D Regulations, 2008;

c. Minimum  Qualifications  for  Teachers  in  Pharmacy  Institutions Regulations, 2014;

d. Bachelor of Pharmacy (B.Pharm) Course Regulations, 2014;

e. Master of Pharmacy (M.Pharm) Course Regulations, 2014;

f. Bachelor of Pharmacy (Practice) Regulations, 2014;

g. Pharmacy Practice Regulations, 2015.

Thus, considering the various provisions of the Pharmacy Act and the regulations

made therein, it can be said that the Pharmacy Act is a complete Code in itself in

the subject of pharmacy.  The PCI has been constituted as a body empowered to

regulate the education and profession of pharmacy in India.  It cannot be disputed

that  the subject  of  pharmacy is  a special  and not a general  subject.   From the

relevant provisions of the Pharmacy Act, more particularly, the provisions referred

to  hereinabove,  the  Pharmacy  Act  exclusively  covers  all  areas  inclusive  of

approval of courses, laying down course content, eligibility conditions for students

as well as teachers, evaluation standards of examination, grant of registration, entry

of higher qualifications in the same discipline, taking action for infamous conduct

31

etc.  It also contains a penal provision.   Thus, the legislative intent in enacting the

Pharmacy  Act  seems  to  be  to  ensure  that  there  is  seamless  regulation  of  the

profession.  To carry out the objective and purpose for enacting the Pharmacy Act,

the  Legislature  has  established  under  the  Statute  the  autonomous  statutory

authority i.e. Pharmacy Council of India.    Thus it can be said that in the field of

pharmacy, the Pharmacy Act is a special law.

13.3 On the other hand, the AICTE Act can be said to be a general law applicable

to the technical institutions and technical education.  If we consider the Statement

of Objects and Reasons for the AICTE Act, it is specifically stated that the AICTE

Act was originally set up by a Government Resolution as a National Expert Body

to  advise  the  Central  and  State  Government  for  ensuring  the  coordinated

development of technical education in accordance with the approved standards.  It

is as under:

“1. The All India Council for Technical Education (AICTE) was set up in 1945 by a Government resolution as a National Expert body to advice the Central and the State Governments for ensuring the co-ordinated development of technical education in accordance with approved  standards.  During  the  first  three  decades  the  Council functioned quite effectively and there was phenomenal development of technical education in this period. However, in recent years, a large number of private engineering colleges and polytechnics have come up in complete disregard of the guidelines, laid down by the AICTE. Most of these institutions have serious deficiencies in terms of even the  rudimentary  infrastructure  necessary  for  imparting  proper education and training. Barring some exceptions, there is scant regard for maintenance of educational standards.

32

2. Taking into account the growing erosion of standards, the Council at its meeting held in 1981 came to the conclusion that a stage had been  reached  when  it  should  be  vested  with  statutory  powers  to regulate and maintain standards of technical education in the country. In pursuance of these and other recommendations, a National Working Group was set  up in  November,  1985 to look into the role  of  the AICTE. The National Working Group recommended that in order to enable the AICTE to play its role effectively, it shall have to be vested with necessary statutory authority. The National Policy on Education, 1986,  also  stipulated  that  the  AICTE will  be vested  with  statutory authority for planning, formulation and the maintenance of norms and standards,  accreditation,  funding  of  priority  areas,  monitoring  and evaluation, maintaining parity of certificates and awards and ensuring the  co-ordinated  and  integrated  development  of  technical  and management education.  3. The Bill seeks to provide statutory powers to the All India Council for Technical Education to ensure:  

(i) proper  planning  and  co-ordinated  development  of  the technical education system throughout the country;  

(ii) promotion of qualitative improvement of technical education in relation of planned quantitative growth, and    

(iii) regulation of the system and proper maintenance of norms and standards.  

Accordingly, the powers and functions assigned to the AICTE, inter alia, provide laying down norms and standards for programmes and  institutions,  giving  approval  for  setting  up  of  technical institutions, prescribing guidelines for admission of students and the charging  of  fees,  and  inspecting  and  evaluating  institutions periodically  with  a  view  to  maintaining  standards  and  to  provide recognition or withhold recognition of programmes and institutions. As part of this overall co-ordination and development responsibilities, the  AICTE  will  also  give  grants  to  institutions  for  identified developmental  purposes.  In  addition,  the  AICTE  will  promote innovation,  research  and  development,  linkages  with  industry  and

33

greater access to technical education by women, handicapped, and the weaker sections of the society.”

The preamble of the AICTE Act is as under:

“An Act to provide for the establishment of an All India Council for Technical Education with a view to the proper planning and co-ordinated development of the technical education system throughout the country, the promotion  of  qualitative  improvements  of  such  education  in  relation  to planned quantitative growth and the regulation and proper maintenance of norms  and  standards  in  the  technical  education  system  and  for  matters connected therewith.”

Thus, it can be said that the AICTE Act can be said to be a general law with respect

to the technical education.  It is true that in the definition, as per Section 2(g) of the

AICTE Act, “technical education” also means “pharmacy”.  However, the same

shall be dealt with hereinbelow.

14. Now having held that the Pharmacy Act is a special Act dealing with the

special subject of pharmacy, the next question which is posed for consideration of

this Court is whether in the field of pharmacy, the Pharmacy Act would prevail or

the AICTE Act?  The next question is whether in the profession of pharmacy, the

PCI shall have the exclusive jurisdiction or the AICTE?

14.1 While answering the question whether the Pharmacy Act which is a special

Act (as held hereinabove) shall prevail or the AIOCTE Act which is a general law

(as held hereinabove) and the submissions on behalf of AICTE that as the AICTE

Act is subsequent law and in the definition of “technical education” contained in

34

Section 2(g), it includes “pharmacy” also, therefore, being a subsequent law, the

same shall  prevail  as  there will  be a implied repeal  of  the Pharmacy Act,  few

decisions of this Court are required to be referred to and considered.

14.2  In the case of  Hari Shankar Jain  (supra), this Court had an occasion to

consider the maxim “Generalia specialibus non derogant”.   The relevant portions

of paragraphs 8 and 9 are as under:

“8. The maxim “Generalia specialibus non derogant” is quite well-known.  The rule flowing from the maxim has been explained in Mary Seward v. Owner of the “Vera Cruz” [(1884) 10 AC 59, 68] as follows:

“Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special  legislation  indirectly  repealed,  altered,  or  derogated from  merely  by  force  of  such  general  words,  without  any indication of a particular intention to do so.”

xxx xxx xxx

9. The reason for the rule that a general provision should yield to a specific provision is this:  In passing a special  Act,  Parliament devotes its entire consideration to a particular subject. When a general Act is subsequently passed, it is logical to presume that Parliament has not repealed or modified the former Special Act unless it appears that the  Special  Act  again  received  consideration  from  Parliament. Vide London and Blackwall Railway v. Limehouse District Board of Works [26 LJ Ch 164 : 69 ER 1048] , and Thorpe v. Adams [(1871) LR 6  CP 125]  .  In J&K.  Cotton  Spinning  and  Weaving  Mills  Co. Ltd. v. State of U.P. [AIR 1961 SC 1170 : (1961) 3 SCR 185 : (1961) 1 LLJ 540 : (1960-61) 19 FJR 43] , this Court observed (at p. 1174):

35

“The rule that general provisions should yield to specific provisions is not  an arbitrary principle made by lawyers and Judges but springs from the common understanding of men and women that when the same person gives two directions,  one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect.”

14.3 In the case of D. J. Bahadur (supra), this Court had an occasion to consider

the  conflict  between  the  general  legislation  and  the  special  legislation  and

argument  of  ‘implied repeal’.  In  the said decision,  this  Court  took note  of  the

following extracts from the Craies on Statute Law [1963 Edn., pp. 376-77]:

“49. xxx xxx xxx “The general rule, that  prior statutes are held to be repealed by

implication by subsequent statutes if the two are repugnant, is said not to  apply  if  the  prior  enactment  is  special  and  the  subsequent enactment  is  general,  the  rule  of  law  being,  as  stated  by  Lord Selbourne  in Sewards v. Vera  Cruz [Mary  Sewards v. Owner of  the “Vera Cruz”,  (1884) 10 AC 59, 68] ,  ‘that where there are general words in a later Act capable of reasonable and sensible application without  extending  them to  subjects  specially  dealt  with  by  earlier legislation,  you  are  not  to  hold  that  earlier  and  special  legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.  There  is  a  well-known rule  which has application  to  this  case, which is that a subsequent general Act does not affect a prior special Act by implication. That this is the law cannot be doubted, and the cases on the subject  will  be found collected in the third edition of Maxwell  is generalia  specialibus  non  derogant  — i.e.  general provisions will not abrogate special provisions.’ When the legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention

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very  clearly.  Each  enactment  must  be  construed  in  that  respect according to its own subject-matter and its own terms.”

In the said decision, it is observed that an ‘implied repeal’ is the last judicial refuge

and unless driven to that conclusion, is rarely resorted to.  It is further observed

that in determining whether a statute is a special or a general one, the focus must

be on the principal subject-matter plus the particular perspective. It is observed that

for certain purposes, an Act may be general and for certain other purposes it may

be special and we cannot blur distinctions when dealing with finer points of law. It

is further observed that what is special or general is wholly a creature of the subject

and context and may vary with situation, circumstances and angle of vision. Law is

no abstraction but  realizes itself  in the living setting of  actualities.  Which is  a

special provision and which general, depends on the specific problem, the topic for

decision, not the broad rubric nor any rule of thumb.

14.4 In the case of Yakub Abdul Razak Memon (supra), this Court again had an

occasion to consider the conflict between the general statue and the special statute.

After considering the various decisions of this Court on the point, it is observed

and concluded in paragraphs 1518 to 1522 as under:

“1518. The principle that the latter Act would prevail the earlier Act has consistently been held to be subject to the exception that a general provision does not derogate from a special one. It means that where the literal meaning of the general enactment covers a situation for which specific provision is made by another enactment contained

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in the earlier Act, it would be presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one.

1519. The basic rule that a general provisions should yield to the specific provisions is based on the principle that if two directions are issued by the competent authority, one covering a large number of matters in general and another to only some of them, his intention is that  these latter  directions should prevail  as  regards these while as regards all the rest the earlier directions must be given effect to.

1520. It  is  a  settled  legal  proposition  that  while  passing  a special  Act,  the  legislature  devotes  its  entire  consideration  to  a peculiar  subject.  Therefore,  when  a  general  Act  is  subsequently passed, it is logical to presume that the legislature has not repealed or modified the former special  Act unless an inference may be drawn from the language of the special Act itself.

1521. In  order  to  determine  whether  a  statute  is  special  or general  one,  the  court  has  to  take  into  consideration  the  principal subject-matter  of  the  statute  and  the  particular  perspective  for  the reason that for certain purposes an Act may be general and for certain other  purposes  it  may be  special  and such a  distinction  cannot  be blurred.

1522. Thus,  where  there  is  inconsistency  between  the provisions  of  two  statutes  and  both  can  be  regarded  as  special  in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment of the legislature  conveyed  by  the  language  of  the  relevant  provisions therein.  (Vide Ram  Narain v. Simla  Banking  and  Industrial  Co. Ltd. [AIR  1956  SC  614]  , J.K.  Cotton  Spg.  &  Wvg.  Mills  Co. Ltd. v. State of U.P. [AIR 1961 SC 1170] , Kumaon Motor Owners' Union  Ltd. v. State  of  U.P. [AIR  1966  SC  785]  , Sarwan Singh v. Kasturi Lal [(1977) 1 SCC 750] , U.P. SEB v. Hari Shankar Jain [(1978)  4  SCC  16  :  1978  SCC  (L&S)  481]  , LIC v. D.J. Bahadur [(1981) 1 SCC 315 : 1981 SCC (L&S) 111] , Ashoka Mktg. Ltd. v. Punjab National Bank [(1990) 4 SCC 406 : AIR 1991 SC 855] and T.M.A.  Pai  Foundation v. State  of  Karnataka [(2002)  8  SCC 481].”

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14.5 In the case of R.S. Raghunath v. State of Karnataka (1992) 1 SCC 335, this

Court was considering the enforceability of special law on the subject in spite of

the  general  law.  This  Court  noted  the  following paragraph in  Maxwell  on  the

Interpretation of Statutes:

“A general later law does not abrogate an earlier special one by mere  implication. Generalia  specialibus  non  derogant,  or,  in  other words,  ‘where  there  are  general  words  in  a  later  Act  capable  of reasonable  and  sensible  application  without  extending  them  to subjects specially dealt with by earlier legislation, you are not to hold that  earlier  and  special  legislation  indirectly  repealed,  altered,  or derogated from merely by force of such general words, without any indication  of  a  particular  intention  to  do  so.  In  such  cases  it  is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act.”

That, thereafter it is further observed and held as under:

“In Maharaja  Pratap  Singh  Bahadur v. Thakur  Manmohan Dey [AIR 1966 SC 1931 : (1966) 3 SCR 663] applying this principle it  is held that general law does not abrogate earlier special  law by mere  implication.  In Eileen  Louise  Nicolle v. John  Winter Nicolle [(1922) 1 AC 284] , Lord Phillimore observed as under:

“It is no doubt a sound principle of all jurisprudence that a prior particular law is not easily to be held to be abrogated by a posterior law, expressed in general terms and by the apparent generality of its language applicable to and covering a number of cases of which the particular law is but one. This as a matter of jurisprudence, as understood in England, has been laid down in a great number of cases, whether the prior law be an express statute … or be the underlying common or customary law of the country.

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… ‘Where  there  are  general  words  in  a  later  Act capable  of  reasonable  and  sensible  application  without extending them to subjects specially dealt with by earlier legislation … that earlier and special legislation is not to be held indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular  intention  to  do  so’.  [Ed.:  Quoting  from Vera Cruz case, (1884) 10 AC 59, 68] ”

In Justiniano  Augusto  De  Piedade  Barreto v. Antonio  Vicente  Da Fonseca [(1979) 3 SCC 47 : AIR 1979 SC 984] this Court observed that a law which is essentially general in nature may contain special provisions on certain matters and in respect of these matters it would be  classified  as  a  special  law.  Therefore  unless  the  special  law  is abrogated  by  express  repeal  or  by  making  provisions  which  are wholly inconsistent  with it,  the special law cannot be held to have been abrogated by mere implication.”

15. Applying the law laid down by this Court in the aforesaid decisions and as

observed hereinabove, the Pharmacy Act is a Special Act in the field of pharmacy

and it is a complete code in itself in the field of pharmacy, the Pharmacy Act shall

prevail over the AICTE Act which, as observed hereinabove, is a general statute

dealing with technical education/institutions.   Therefore, the submission on behalf

of  AICTE  and/or  concerned  educational  institutions  that  the  AICTE  Act  is  a

subsequent  law  and  in  the  definition  of  “technical  education”  it  includes  the

“pharmacy”  and therefore  it  can  be  said  to  be  an  “implied  repeal”,  cannot  be

accepted.  At his stage, it is required to be noted that as such in the AICTE Act

there  is  no  specific  repeal  of  the  Pharmacy  Act,  more  particularly  when,  as

observed  hereinabove,  the  Pharmacy  Act  is  a  Special  Act  and  the  subsequent

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enactment of AICTE Act is general and therefore the Pharmacy Act being a Special

Act must  prevail.    Apart from that,  with regard to several aspects,  there is no

provision made in AICTE Act which are exclusively within the domain of PCI.

Thus, it cannot be accepted that there is ‘implied repeal’ of the Pharmacy Act.

16. Now the next question which is required to be considered is whether in the

field of pharmacy, PCI would have the jurisdiction or AICTE constituted under the

AICTE Act which is held to be a general law.  The Constitution and Composition

of Central Council under the Pharmacy Council of India is as under:

“3.  Constitution  and  composition  of  Central  Council.-The Central  Government  shall,  as  soon as may be,  constitute  a  Central Council consisting of the following members, namely :-  

(a)  Six  members,  among  whom  there  shall  be  at  least  one teacher of each of the subjects, pharmaceutical chemistry, pharmacy, pharmacology and pharmacognosy elected by the University Grants Commission from among persons on the teaching staff of an Indian University  or  college  affiliated  thereto  which  grants  a  degree  or diploma in pharmacy ;

 (b)  Six  members,  of  whom  at  least four  shall  be  persons

possessing  a  degree  or  diploma  in,  and  practicing  pharmacy  or pharmaceutical chemistry nominated by the Central Government ;

 (c)  One  member  elected  from  amongst  themselves  by  the

members of the Medical Council of India.   (d) the Director General, Health Services,  ex officio or if he is

unable to attend any Meeting, a person authorized by him in writing to do so;

The Drugs  Controller,  India,  ex  officio or  if  he  is  unable  to attend any meeting, a person authorized by him in writing to do so;

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 (e) the Director of the Central Drugs Laboratory, ex officio ;   

(f) a representative of the University Grants Commission and a representative of the all India Council for Technical Education ;

 (g) one member to represent each State elected from amongst

themselves by the members of  each State Council,  who shall  be a registered pharmacist ;

 (h) One member to represent each State nominated by the State

Government, who shall be a registered pharmacist :”

Therefore, PCI consists of experts in the field of pharmacy and related subjects

connected  with  the  education  of  pharmacy.   Therefore,  under  the  statute,

specialized  persons  in  the  field  of  pharmaceutical,  pharmacy  etc.  shall  be  the

members of the PCI.

16.1 On the other hand, so far as AICTE is concerned, only one member would

be from the  field  of  pharmacy  and that  too  representative  of  PCI.   Under  the

circumstances,  the  PCI  is  the  body  of  experts  connected  with  the  subject  of

pharmacy and related subjects and therefore it will be in the larger interest and

more particularly in the interest of education of pharmacy that PCI shall alone have

the Jurisdiction in the field of pharmacy, rather than AICTE.

17. The aforesaid question is also required to be viewed from another angle.

Both, the PCI and AICTE are the creature of the statute.  Therefore, it is not at all

healthy that the two regulators, both being Central authorities, can be permitted to

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fight  for  supremacy.   The  fight  of  supremacy  between  both  the  regulators  is

unhealthy  for  the  education  sector  as  well  as  the  institutions  to  permit  two

regulators to function in the same field.  Therefore also and more particularly when

the PCI is  consisting of  the experts  in the field of  pharmacy and other related

subjects, it is in the larger interest in the field of pharmacy that the PCI must be

given the power to regulate in the field of pharmacy.

17.1 An identical question came to be considered by this Court in the case of

Shri Prince Shivaji Maratha Boarding House’s College of Architecture (supra).

In  that  case,  this  Court  was  considering  the  similar  provisions  in  the  field  of

architecture and whether the mandate  of  the Council  of  Architecture or  that  of

AICTE would prevail on the question of granting approval and related matters to

the institution for conducting architecture education course, if there is contradiction

in the opinions of these two bodies.   At this stage, it is required to be noted that in

the  definition  of  ‘technical  education’  in  Section  2(g),  ‘architecture’  is  also

included like ‘pharmacy’.  In that case also, the Architecture Act was enacted prior

to the AICTE Act, 1987, i.e. in the year 1972.  After considering the scheme of the

Architecture Act and the powers and function of the Council of Architecture, this

Court observed and held that the Architecture Act is a Special Act and shall prevail

over the AICTE Act being a general Act, in case of conflict/contradictions in the

opinions of the aforesaid two bodies.

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After considering the similar submissions made on behalf of AICTE in the

case of  Shri Prince Shivaji Maratha Boarding House’s College of Architecture

(supra), it is ultimately observed and held in paragraphs 63 and 64 as under:  

“63. We are of the opinion that in respect of the provisions of Section 2 (g) of the 1987 Act, the definition of “technical education” would  have  to  be  given  such  a  construction  and  the  word “architecture” should be treated to have been inapplicable  in cases where the AICTE imports  its  regulatory framework for  institutions undertaking  technical  education.  There  would  however  be  no substitution  because  the  context  would  not  demand  it.  This construction  of  the  definition  clause  is  necessary  as  the  external context  requires  it  to  prevent  an  unworkable  outcome  in implementation  of  the  1987  Act.  The  principle  of  implied  repeal cannot apply so far as the provisions relating to architecture education is concerned, on the basis of the 1987 Act having become operational. One  of  the  dominant  purposes  of  the  1972  Act  is  recognition  of qualifications  on  architecture.  The  registration  of  an  architect  is dependent upon acquisition of such recognised qualification. The said Act cannot be held to have been repealed by implication for the sole reason  of  inclusion  of  the  word  “architecture”  in  the  definition  of technical  education.  AICTE  has  failed  to  discharge  its  onus  to establish  the  71  said  provisions  of  the  1972  Act  was  repealed  by implication.  

64. We accordingly hold that so far as recognition of degrees and diplomas of  architecture education  is  concerned,  the 1972 Act shall  prevail.  AICTE will  not  be entitled to  impose any regulatory measure in connection with the degrees and diplomas in the subject of architecture. Norms and Regulations set by CoA and other specified authorities  under  the  1972  Act  would  have  to  be  followed  by  an institution  imparting  education  for  degrees  and  diplomas  in architecture.

18. We are in complete agreement with the view taken by this Court in  Shri

Prince  Shivaji  Maratha  Boarding  House’s  College  of  Architecture (supra).

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Otherwise on merits also, as observed and held hereinabove, the Pharmacy Act

which is a Special Act in the field of pharmacy shall prevail and consequently so

far as the recognition of degrees and diplomas of pharmacy education is concerned,

the Pharmacy Act shall prevail.  As observed hereinabove, PCI constituted under

the provisions of the Pharmacy Act which is consisting of the experts in the field of

pharmacy  and/or  related  subjects  shall  prevail.   Consequently,  the  norms  and

regulations set by the PCI and other specified authorities under the Pharmacy Act

would have to be followed by an institution imparting education for degrees and

diplomas in pharmacy.    

19. Now,  so  far  as  reliance  placed  upon  Article  372  of  the  Constitution  by

learned Advocate appearing on behalf of AICTE is concerned, at the outset, it is

required to be noted that even as per Article 372 of the Constitution, unless a pre-

constitutional statute is specifically repealed it continues to remain in operation.  In

the present case, even in the AICTE Act there is no specific repeal of the Pharmacy

Act, 1948.  As observed hereinabove, there is not even ‘implied repeal’.  Therefore,

reliance placed upon Article 372 of the Constitution is misconceived.   

20. At this stage, it is required to be noted that having realized the difficulties in

view of  dual  regulations  of  pharmacy  education  under  the  PCI  and  AICTE,  a

ministerial level meeting  between the Minister of Health and Family Welfare and

the Minister  of  HRD, Union of  India  was held on 03.10.2018 to end the dual

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regulations on pharmacy education under PCI and AICTE.  In the counter-affidavit

filed by the AICTE itself, it is stated that during the meeting it was noted and even

it is submitted by Ms. Pinki Anand, learned ASG appearing on behalf of the Union

of India that during the meeting it was noted that, both the Pharmacy Act, 1948 and

the  AICTE  Act,  1987,  contain  the  provisions  regarding  pharmacy  education

leading to duplication of regulations and considerable confusion at the field level,

it was unanimously agreed that this dual regulation should be ended forthwith and

the  AICTE  Act  governing  the  general  technical  education  would  be  amended

deleting ‘pharmacy’ from its mandate and the pharmacy education would thereafter

be governed by the Pharmacy Act, 1948. It is submitted that the amendment in

Section 2(g) of the AICTE Act was proposed, but thereafter there is no further

progress in the wake of formation of newly proposed Higher Education Council of

India and finalization of NEP, which as such has nothing to do with the Pharmacy

Act.  Therefore, even according to the Union of India, the word ‘pharmacy’ is to be

deleted from the definition of ‘technical education’ contained in Section 2(g) of the

AICTE Act.

21. In view of the above and for the reasons stated above, it is held that in the

field of  Pharmacy Education and more particularly so far as the recognition of

degrees and diplomas of  Pharmacy Education is concerned,  the Pharmacy Act,

1948 shall prevail.  The norms and regulations set by the PCI and other specified

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authorities under the Pharmacy Act would have to be followed by the concerned

institutions imparting education for degrees and diplomas in Pharmacy, including

the  norms  and  regulations  with  respect  to  increase  and/or  decrease  in  intake

capacity of the students and the decisions of the PCI shall only be followed by the

institutions  imparting  degrees  and  diplomas  in  Pharmacy.   The  questions  are

answered accordingly.

22. Now the next question which is required to be considered is with respect to

students  already  admitted  pursuant  to  the  orders  passed  by this  Court  and  the

concerned High Courts.  The conflict and the dispute arose because despite refusal

by the PCI, the AICTE increased the intake capacity in the respective institutions,

which were not approved by the PCI.  By the interim orders, this Court and the

respective  High  Courts  have  directed  to  allow those  students  to  appear  in  the

examinations and to register them as pharmacists.  Such Interim Orders are also

made final.  Therefore, the present decision shall not affect those students admitted

in the increased intake capacity and/or pursuant to the interim orders passed by this

Court  and/or final  judgments and orders  passed by the respective High Courts.

PCI  is  therefore  directed  to  give  consequential  benefit  of  registration  to  such

students.  However, at the same time, all pending applications for increase in intake

capacity  and/or  for  recognition  and/or  approval  of  course/institutions  in  the

pharmacy  shall  be  as  per  the  provisions  of  the  Pharmacy  Act,  1948  and  the

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regulations, if any, thereunder and as per the norms and regulations fixed by the

PCI.   It is further directed the concerned institutions who increased their intake

capacity  as  approved  by AICTE and  their  increase  in  intake  capacity  was  not

approved by PCI, shall apply afresh for increase in intake capacity and/or evening

shift for the next academic year within a period of four weeks from today and their

cases  for  increase  in  intake  capacity  and/or  applications  for  recognition  and/or

applications for approval of the course or evening shift shall be considered by the

PCI in accordance with the Pharmacy Act, 1948 and rules and regulations framed

therein and the norms prescribed by the PCI.

23. All  these  Transferred  Cases/Appeals/Writ  Petitions  stand  disposed  of

accordingly.

…………………………..J. (ARUN MISHRA)

…………………………..J. (VINEET SARAN)

…………………………..J. (M. R. SHAH)

New Delhi; March 05, 2020