REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 6895 OF 2008

Rajendra Prasad Bagaria ...   Appellant Versus

Pharmacy Council of State of Rajasthan & Anr. ...         Respondents

J U D G  E M E N T

H.L. Gokhale J.   

This appeal by special leave is directed against the judgment and  

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

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

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

dismissed.

Short facts leading to this appeal are as follows:-

2. The  appellant  claims  that  after  passing  the  Secondary  School  

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

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

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

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

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

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

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

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

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

registered over there on 5.12.2001.   

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Enquiry  Committee  constituted  by  the  Rajasthan  Council  had  found  his  

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

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

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

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

or  to  remain  present  before  the  Executive  Committee.   The  Executive  

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

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

16.3.2005  and  the  appellant  was  informed  to  surrender  his  certificate  of  

registration by the Council by its further communication dated 12.4.2005.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

order dated 7.4.2006.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

appeal was accordingly dismissed.

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

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

first  respondent  having granted registration to  the appellant  after making an  

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

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

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

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

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

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

and orders, as being perfectly justified.

Consideration of the rival submissions

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

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

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

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

stages:

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

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

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

notification,  and  applications  for  registration  must  be  made  by  the  

appointed date.

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

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

qualifications.

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

regulations, or as a registered pharmacist in another state.

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

the Act which reads as follows:-

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“31 - Qualifications for entry on first register   

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

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

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

(c) has passed an examination recognised as adequate by the   State Government for compounds 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.”  

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

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

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

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

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

regularly dispensed on prescriptions of medical practitioners.

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

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

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

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

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

registration  certificate  on  5.12.2001.   The  Executive  Committee  of  the  first  

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

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

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

Pradyumansinghji Arjunsinghji reported in 1971(3) SCC 844.

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

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

Section reads as follows:-

“36 - Removal from register  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

that it had exercised it erroneously.

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

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

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

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

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

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

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

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

sub-clause (d) of the Act.

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

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

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

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

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

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

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

a  registered  pharmacist  though after  giving him a reasonable  opportunity  of  

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

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

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

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

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

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

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

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

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

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

the  concerned  State  Council  is  answerable  to  the  persons  purchasing  the  

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

pharmacists do have necessary educational qualifications or the experience as  

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

concerning educational qualifications or experience of the pharmacist have to be  

scrupulously  scrutinized.   If  the  registration  of  the  concerned  pharmacist  

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

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

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

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

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

enquiry for the purpose of removal from their register.  

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

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

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

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

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

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

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

the respondent could not be faulted.

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

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

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

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

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

alternative qualification that some other degree with three years experience is  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

are permitted.

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

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

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

17. We therefore, pass the following order:

(a) The Civil Appeal is, hereby dismissed.

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

…………..……………………..J.  ( P. Sathasivam  )

        ………………… ………………..J.  ( H.L. Gokhale  )

New Delhi

Dated: February 6, 2012

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