2017 (7) TMI 1310 - SC - Indian Laws

Supreme Court Decision on Pharmacist Registration in Bihar and Jharkhand

The Supreme Court held that the First Register prepared by Bihar is deemed the First Register for Jharkhand. Only individuals meeting the Education ... Registration as pharmacists - Scope of Sections 30, 31 and 32 of Pharmacy Act, 1948 - requirement of qualification as prescribed by the Education Regulations - HELD THAT:- As per Sub-section (2) of Section 32, after enactment of the Education Regulations, a person shall be entitled to have his name entered in the register only if he possesses the qualifications as prescribed by Education Regulations. Thus, the qualifications as mentioned in Section 31 would be relevant only till such time of preparation of First Register Under Section 30. In other words, the qualifications mentioned in Section 31 would be of no relevance at the time of subsequent registration Under Section 32 and after the promulgation of Education Regulations. Whether the First Register prepared by the State of Bihar shall be deemed to be the First Register of the State of Jharkhand in view of Section 84 and 85 of the Bihar Reorganization Act of 2000? - HELD THAT:- The First Register prepared and published shall be a permanent register in relation to all pharmacists in the State of Bihar. The same shall be given custody to the State Council constituted under the Section 19. A reading of Sub-section (4) and (5) of Section 30 would show that an authority appointed by the State Government to hear appeals in relations to First Register, shall decide the question of entering a new name in the register or amending the same. Such facility is available after the date appointed under Sub-section (2) of Section 30 and before the enforcement of Education Regulations made by the Pharmacy Council of India - There is no dispute that the First Register for the erstwhile Bihar after following the procedure contemplated Under Section 30 of the Act. There is no doubt that as directed by the State Government it was duly published. Thus, there was a Statutory notification under the Section 30(4) publishing the First Register of Pharmacists for the Bihar. The principles with reference to a law, made Under Article 3 of the Constitution of India reorganizing the existing State and the application of the laws that were in force in the parent State to the newly formed re-organized State. This would be necessary because in our considered opinion, the First Register published in Bihar before reorganization would be deemed to be the First Register of newly formed Jharkhand to the extent it contains those pharmacists who were natives of the territories that were transferred to Jharkhand - When a State as forming part of Indian nation is re-organized, in law in so far as application of laws is concerned, the following three things would happen namely; (i) the existing State (Parent State) which made various laws, would continue to exist; (ii) the new State so formed by transferring some territories will be deemed to be the territories of the parent State for the purpose of applicability of the laws; and (iii) those laws made by parent State shall continue to apply to new State until they are modified or amended by a competent legislature in relation to new State and the 'law' as defined in the definition Clause would be the law which was in force in the existing State which would be enforceable in the newly formed State. When the First Register of Pharmacists prepared by the Registration Tribunal was published by the Government of Bihar under Sub-section (4) of Section 30, the same is conclusive and any amendments by way of inclusions can be carried out till the framing of the Education Regulations by the Pharmacy Council of India. For doing this the competent authority may take into consideration the qualifications as prescribed by Section 31 of the Act. However, after the coming into force of the Education Regulations as well as at the time of subsequent Registration, Government has to necessarily adhere to the Education Regulations. Any person who does not satisfy the qualifications as per the Education Regulations shall not be entitled to seek entry in the Pharmacy register. In that view of the matter, when the State of Bihar is precluded from preparing the First Register again, then the State of Jharkhand is equally not entitled in law to prepare the First Register again. The High court of Jharkhand therefore has come to correct conclusion in this regard. First Register prepared by erstwhile State of Bihar is to be treated as the First Register for newly formed State of Jharkhand and State of Bihar - The First Register as prepared by the erstwhile State of Bihar is to be bifurcated based on the territorial nexus with the residential address as provided by the pharmacists at the time of registration. Appeal disposed off. Issues Involved:1. Whether the First Register prepared by the State of Bihar shall be deemed to be the First Register of the State of Jharkhand in view of Section 84 and 85 of the Bihar Reorganization Act of 2000Rs.2. Whether persons who do not possess any qualification as prescribed by the Education Regulations are entitled to be registered by the State of JharkhandRs.Detailed Analysis:Issue 1: Deeming the First Register of Bihar as the First Register for JharkhandThe case addresses the complexities arising from the bifurcation of Bihar and the formation of Jharkhand, particularly concerning the applicability of the Pharmacy Act, 1948, and the preparation of the First Register of pharmacists. The Pharmacy Act came into force in 1948, and the First Register of pharmacists was prepared in Bihar in 1955. After the bifurcation, Jharkhand constituted a Registration Tribunal and invited applications for registration of pharmacists.The High Court of Jharkhand concluded that the Education Regulations applicable to Bihar are also applicable to Jharkhand, as per Sections 84 and 85 of the Bihar Reorganization Act (BROA). The High Court emphasized that the First Register prepared by Bihar should be deemed the First Register for Jharkhand, stating: 'The first register for State of Jharkhand would be of those persons who are already in the register prepared for the undivided State of Bihar based on their territorial loyalty or the situs of their practice.'The Supreme Court affirmed this view, stating that the First Register prepared by Bihar has the force of law under Section 2(f) of the BROA. The Court held: 'The First Register prepared by the erstwhile Bihar will be deemed and continues to be the First Register for the Jharkhand.'Issue 2: Registration of Persons Without Prescribed QualificationsThe second issue concerns whether individuals without qualifications prescribed by the Education Regulations can be registered as pharmacists in Jharkhand. The High Court ruled that only those qualified as per the Education Regulations can be registered. The Supreme Court agreed, emphasizing that after the promulgation of the Education Regulations, only those possessing the prescribed qualifications are eligible for registration.The Court noted: 'After the enactment of the Education Regulations, a person shall be entitled to have his name entered in the register only if he possesses the qualifications as prescribed by Education Regulations.'Conclusion and Directions:The Supreme Court concluded that the First Register prepared by Bihar should be treated as the First Register for Jharkhand. The Court directed that the First Register be bifurcated based on the territorial nexus with the residential address of the pharmacists. The State of Jharkhand was granted the liberty to constitute a State Council and undertake subsequent registrations per the Education Regulations.The Court also clarified that pharmacists registered in the First Register of Bihar before the enforcement of the Education Regulations, who do not wish to practice in the State where their residential address falls, can register in the other State under Section 32(2) of the Pharmacy Act without needing to satisfy the qualifications prescribed by the Education Regulations.Final Order:1. The First Register prepared by Bihar is to be treated as the First Register for Jharkhand and Bihar.2. The First Register is to be bifurcated based on the territorial nexus with the pharmacists' residential addresses.3. Jharkhand is at liberty to constitute a State Council.4. Pharmacists registered in the First Register before the enforcement of the Education Regulations can register in the other State as per Section 32(2) of the Pharmacy Act without needing to satisfy the qualifications prescribed by the Education Regulations.The appeal was disposed of with no order as to costs.