BHARGAV D. KARIA, J.

1. Heard learned senior advocate Mr. Dhaval Dave with learned advocate Mr. Udit N. Vyas for the petitioners and learned advocate Mr. Siddharth Dave for the respondent in the respective petitions.

2. Having regard to the controversy involved in this group of petitions, with the consent of the learned advocates for the respective advocates, the matters is taken up for hearing and would be disposed of by this common judgment.

3. Rule returnable forthwith. Learned advocate Mr. Siddharth Dave waives service of notice of rule on behalf of the respondent.

4. These petitions are filed by the respective Educational Institutes challenging the common order dated 05.12.2022 passed by the Executive Committee of respondent Pharmacy Council of India whereby unilaterally the intake capacity of the students for the Academic Year 2022-23 for conduct of the First Year of Bachelor of Pharmacy Course is restricted to 60 students as against the application made by the petitioners for intake capacity of 100 students without assigning any reason for reducing the intake capacity.

5. The brief facts of the case are that the petitioners- Education Institutes made applications to start the First Year Bachelor of Pharmacy course for intake of 100 seats with effect from academic year 2022-23. Such applications were filed online before the date prescribed by the respondent Council.

6. It is the case of the petitioners that the infrastructure and allied facilities were developed keeping in mind the requirement of prescribed 100 seats for Bachelor of Pharmacy Course for which the recognition was sought for by the petitioners.

7. Pursuant to the applications for approval, a team of inspectors appointed by the respondent Council conducted the inspection for the purpose of verifying infrastructural facilities required for an intake capacity of 100 seats for Bachelor of Pharmacy Course as per the “The Bachelor of Pharmacy (B.Pharm) Course Regulations, 2014” (for short “the Regulations, 2014).

8. It is the case of the petitioners that as per the inspection report submitted by the team of inspectors it was certified that the petitioners were possessing all the requisite infrastructure facilities for intake of 100 seats for its B.Pharm Course and there was no adverse remark or observation in the inspection report.

9. The respondent Council however, by the common order dated 05.12.2022 in its 384th Executive Committee meeting restricted the intake capacity to 60 students only as against the applications made by the petitioners for 100 students.

10. Being aggrieved by the said order of the respondents, the petitioners have approached this Court by filing this group of petitions. The prayers are of similar nature in all petitions and therefore, for the sake of convenience, prayers are taken from Special Civil Application No.25776/2022 as under:

“(a).... to quash and set-aside the impugned order dated December 5, 2022, (Annexure-C) rendered by the Executive Committee of the Pharmacy Council of India the Respondent herein, with respect to the Silver Oak College of Pharmacy, Petitioner No. 2 herein, to the extent it has the effect of partial denying approval to Petitioner No. 1 University to establish Silver Oak College of Pharmacy, Petitioner No. 2 herein, for imparting education in the discipline of pharmacy at the level of graduation leading to the educational qualification for an intake capacity of 100 seats from the academic year 2022-23 and thereupon be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, inter alia directing the Pharmacy Council of India, the Respondent herein, to issue a fresh order of approval with respect to the Silver Oak College of Pharmacy, Petitioner No. 2 herein, granting approval to Petitioner No. 1 - University to establish Silver Oak College of Pharmacy, Petitioner No. 2 herein, for imparting education in the discipline of pharmacy at the level of graduation leading to the educational qualification for an intake capacity of 100 seats from the academic year 2022-23.”

11. Learned senior advocate Mr.D.C.Dave with learned advocate Mr.Udit N. Vyas for the petitioners submitted that as per the Regulations 2014, the petitioners have created infrastructure facilities for intake of 100 students for the First Year of B.Pharm Course from the Academic Year 2022- 23. It was submitted that the respondent Council has not given any reason to reduce the intake capacity to 60 seats and all Colleges or Universities who have made applications for intake capacity of 100 students are uniformly granted intake capacity of 60 students by imposing self moratorium on admission by the Colleges for the reasons best known to the respondent Pharmacy Council.

12. It was further submitted that no deficiency or shortcoming is pointed out either in the inspection report or in the impugned order dated 05.12.2022 to grant the intake capacity of the petitioner institutes upto 60 students only.

13. Learned senior advocate Mr.Dave submitted that before passing the impugned order, the respondent Council has not given any notice to show cause to the petitioner institutes as to why the intake capacity to be reduced from 100 students to 60 students for any reason whatsoever.

14. It was therefore submitted that the impugned order is contrary to the Article 19 (1)(g) of the Constitution of India whereby the respondent Council as a Regulatory Body has restricted the fundamental right of the petitioner institutes to admit 100 students inspite of the fact that the petitioners are entitled and eligible for the same.

15. In support of his submissions, reliance was placed on the recent decision of the Apex Court in case of Pharmacy Council Of India Vs. Rajeev College of Pharmacy and Ors reported in 2022 SCC OnLine SC 1224 to submit that the respondent Pharmacy Council could not have imposed restriction on the fundamental rights of the petitioners to establish and continue the Educational Institutes under Article 19 (1)(g) of the Constitution of India and therefore, the uniform decision of the respondent Council to restrict the intake capacity to 60 students without any reason is liable to be struck down on this short ground.

16. On the other hand, learned advocate Mr.Siddharth Dave appearing for the Pharmacy Council of India heavily relied upon averments in the counter affidavit filed on behalf of the respondent no.1. It was submitted that Section 10 of the Pharmacy Act, 1948 and the Rules and Regulations made thereunder, prescribing the minimum standards of education required for qualification as a Pharmacist provides for the nature and period of study and of practical training to be undertaken before admission to an examination, coupled with the equipment and facilities to be provided for the students undergoing approved courses of study and the subjects of examination and standards therein to be attained. It was submitted that as per Section 12 of the Pharmacy Act, 1948, any authority in the 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 regulations.

17. Learned advocate Mr.Sidddharth Dave therefore submitted that considering the applications made by the petitioners under the provisions of the Pharmacy Act, 1948 the respondent Council by its policy has restricted the intake capacity to 60 students for the first year of B.Pharm Course even if the petitioners may be eligible to admit 100 students in the first year. In support of his above submission reliance is placed on the following averments made in the affidavit-inreply:

“22. That the 384th Executive Committee of the answering respondent PCI in its meeting held on 05.11.2022 decided to grant 60 seats in B.Pharm Course for the academic year 2022-2023.

23. That the Hon'ble Supreme Court in the case of Parshavnath Charitable Trust v. AICTE, (2013) 3 SCC 385 [LQ/SC/2012/1134] had laid down the academic calendar providing for strict deadlines to be followed by all authorities concerned with grant of approval and admission, and as such, is required to be adhered to by the PCI. The relevant extracts of the judgment of the Hon’ble Supreme Court are extracted hereunder:

“40.…The order granting or refusing approval, thus, should positively be passed by 10th April of the relevant year. The appeal should be filed within one week and the Appellate Committee should hear the appeal and decide the same by 30th April of the relevant year. The university should grant/decline approval/affiliation by 15th May of the relevant year. Advertisement should be issued and entrance examination conducted positively by the end of the month of May.

41. The appropriate Schedule, thus, would be as follows:

Event	Schedule
Conduct of entrance examination (AIEEE/State CET/Management quota exams, etc.)	In the month of May
Declaration of result of qualifying examination (12th exam or similar) and entrance examination	On or before 5th June
1st round of counselling/adm ission for allotment of seats	To be completed on or before 30th June
2nd round of counselling for allotment of seats	To be completed on or before 10th July
Last round of counselling for allotment of seats	To be completed on or before 20th July
Last date for admitting candidates in seats other than allotted above	30th July However, any number of rounds for counselling could be conducted depending on local requirements, but all the rounds shall be completed before 30th July
Commencement of academic session	1st August
Last date up to which students can be admitted against vacancies arising due to any reason (no student should be admitted in any institution after the last date under any quota)	15th August
Last date of granting or refusing approval by AICTE	10th April
Last date of granting or refusing approval by University/Stat e Government	15th May

***

43. We find that the above schedule is in conformity with the affiliation/recognition schedule aforenoticed. They both can co-exist. Thus, we approve these admission dates and declare it to be the law which shall be strictly adhered to by all concerned and none of the authorities shall have the power or jurisdiction to vary these dates of admission. Certainty in this field is bound to serve the ends of fair, transparent and judicious method of grant of admission and commencement of the technical courses. Any variation is bound to adversely affect the maintenance of higher standards of education and systemic and proper completion of courses.

***

46.1. Both grant/refusal of approval and admission schedule, as aforestated, shall be strictly adhered to by all the authorities concerned including Aicte, the University, the State Government and any other authority directly or indirectly connected with the grant of approval and admission.

46.2. No person or authority shall have the power or jurisdiction to vary the schedule prescribed hereinabove.

***

46.6. If the appellate authority decides the matter prior to 30th April of the year concerned and grants approval to a college, then alone such institution will be permitted to be included in the list of colleges to which admissions are to be made and not otherwise. In other words, even if the appellate authority grants approval after 30th April, it will not be operative for the current academic year. All colleges which have been granted approval/affiliation by 10th or 30th April, as the case may be, shall alone be included in the brochure/advertisement/websit e for the purpose of admission and none thereafter.…”

24. That the Hon’ble Supreme court in order dated 21.10.2022 passed in W.P. No. 880/2022 extend the time for approval for new institution to 15.11.2022 and appeals, if any 15.12.2022. A copy of order dt. 15.12.2022 is enclosed as Annexure – R-2.

25. That it is respectfully submitted that in the case of Union of India vs. Assn. For Democratic Reforms (2002)5 SCC 294) [LQ/SC/2010/392] , it has been observed that, "however, the Supreme Court cannot give any direction for amending the Act or the Rules nor can it give any direction contrary to the Act or Rules.

26. That it is also respectfully submitted that it is a settled position in law that the Hon’ble High Courts, while exercising jurisdiction under Article 226 of the Constitution of India would not be empowered to substitute its own opinion over the opinion of the expert authorities created under the statues framed by the Parliament.

27. That While setting aside the judgment of the Hon’ble High Court through its judgment in the case of MCI vs. Sarang & Ors. (2001) 8 SCC 427 [LQ/SC/2001/1883] – the Hon’ble Supreme Court observed that -

“…..in the matters of academic standards, courts should not normally interfere or interpret the rules and such matters should be left to the experts in the field….”

28. That the Hon’ble Supreme Court has held in several judgments that in matters of education such decisions should be best left to the wisdom of expert bodies. Reliance in this regard is placed on the decision of the Hon’ble Supreme Court in Tariq Islam vs. Aligarh Muslim University &Ors. (2001) 8 SCC 546 [LQ/SC/2001/2307] at Para 7.

29. The Hon’ble Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27 [LQ/SC/1984/165] was pleased to reiterate this position of law as follows:

“29. Far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly defeasive of the same. As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case.”

30 That further, the Hon’ble Supreme Court in the case of Basavaiah (Dr.) v. Dr. H.L. Ramesh, (2010) 8 SCC 372, [LQ/SC/2010/752] while discussing a large number of judgments on the settled position that Courts do not ordinarily interfere with decisions of expert bodies in the field of education was pleased to hold as under:

“32. In J&K State Board of Education v. Feyaz Ahmed Malik [(2000) 3 SCC 59] [LQ/SC/2000/193] the Court while stressing on the importance of the functions of the expert body observed that the expert body consisted of persons coming from different walks of life who were engaged in or interested in the field of education and had wide experience and were entrusted with the duty of maintaining higher standards of education. The decision of such an expert body should be given due weightage by courts.

33. In Dental Council of India v. Subharti K.K.B. Charitable Trust [(2001) 5 SCC 486] [LQ/SC/2001/1107] the Court reminded the High Courts that the Court's jurisdiction to interfere with the discretion exercised by the expert body is extremely limited.

34. In Medical Council of India v. Sarang [(2001) 8 SCC 427] [LQ/SC/2001/1883] the Court again reiterated the legal principle that the court should not normally interfere or interpret the rules and should instead leave the matter to the experts in the field.

35. In B.C. Mylarappa v. Dr. R. Venkatasubbaiah [(2008) 14 SCC 306 [LQ/SC/2008/2034] : (2009) 2 SCC (L&S) 148] the Court again reiterated the legal principles and observed regarding importance of the recommendations made by the expert committees.

36. In Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University [(2008) 9 SCC 284 [LQ/SC/2008/1614] : (2008) 2 SCC (L&S) 887] the Court reminded that it is not appropriate for the Supreme Court to sit in appeal over the opinion of the experts.

37. In All India Council for Technical Education v. Surinder Kumar Dhawan [(2009) 11 SCC 726] [LQ/SC/2009/385] again the legal position has been reiterated that it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies.

38. We have dealt with the aforesaid judgments to reiterate and reaffirm the legal position that in the academic matters, the courts have a very limited role particularly when no mala fides have been alleged against the experts constituting the Selection Committee. It would normally be prudent, wholesome and safe for the courts to leave the decisions to the academicians and experts. As a matter of principle, the courts should never make an endeavour to sit in appeal over the decisions of the experts. The courts must realise and appreciate its constraints and limitations in academic matters.”

31. That the Hon’ble Supreme Court vide its order dated 26.08.2022 in MA No. 1379/2022 in CA no 9048/2012 has been pleased to extend the date of approval for the academic year 2022-23 till 30.10.2022.

32. That the Supreme Court of India by its judgment dated 12.1.05 in Mridul Dhar’s case, emphasizing the need of strict enforcement of the time schedule.

33. That the Hon’ble Apex Court in its various judgments reported in (2002) 7 SCC 258, [LQ/SC/2002/940 ;] (2005) 2 SCC 65 [LQ/SC/2005/46] and (2012) 7 SCC 433, [LQ/SC/2012/456] has further emphasized on strict adherence of the Time Schedule.

34. That in the case of Dental Council of India Versus Dr. Hedgewar Smruti Rugna Seva Mandal report in 2017 (13) SCC 115, [LQ/SC/2017/584] in para 22, Hon'ble Supreme Court held that court should not pass such interim order in the matter of admission, more so when the institution had not been accord approval. Para 22 of the judgement is reproduced here-in-under.

“From the aforesaid authorities, it is perspicuous that the court should not pass such interim orders in the matters of admission, more so, when the institution had not been accorded approval. Such kind of interim orders are likely to cause chaos, anarchy and uncertainty. And, there is no reason for creating such situations. There is no justification or requirement. The High Court may feel that while exercising power under Article 226 of the Constitution, it can pass such orders with certain qualifiers as has been done by the impugned order, but it really does not save the situation. It is because an institution which has not been given approval for the course, gets a premium. That apart, by virtue of interim order, the court grants approval in a way which is the subject matter of final adjudication before it. The anxiety of the students to get admission reigns supreme as they feel that the institution is granting admission on the basis of an order passed by the High Court. The institution might be directed to inform the students that the matter is sub judice, but the career oriented students get into the college with the hope and aspiration that in the ultimate eventuate everything shall be correct for them and they will be saved. It can be thought of from another perspective, that is, the students had deliberately got into such a situation. But it is seemly to note that it is the institution that had approached the High Court and sought a relief of the present nature. By saying that the institution may give admission at its own risk invites further chaotic and unfortunate situations.”

35. That PCI is discharging its function as per the Pharmacy Act and Regulations made thereunder.

36. That it is respectfully submitted that the Hon’ble Supreme Court and this Hon’ble Court in catena of judgement has held for the strict adherence time schedule.

37. The Hon’ble Supreme Court has unequivocally held that the "norms" and regulations set by the PCI will have to followed by institutions imparting education in diplomas and degrees of pharmacy.

38. In the case of Pharmacy Council of India v. Dr. SK Toshniwal Educational Trusts Vidharbha Institute of Pharmacy, 2020 SCC OnLine SC 296, vide judgment dated 05.03.2020, the Hon’ble Supreme Court after detailed analysis of the scheme of the Pharmacy Act has clearly held that 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. The relevant extracts of the judgment is reproduced below for kind reference of this Hon’ble Court:-

“65. 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 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.

***

80.…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 pharmac y, rather than AICTE.

84. We are in complete agreement with the view taken by this Court in Shri Prince Shivaji Maratha Boarding House’s College of Architecture (supra). 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.

87. 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 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.”

39. That following the above decisions of the Hon’ble Supreme Court, the Hon’ble High Court of Bombay, Aurangabad Bench, recently in the case of Sayali Charitable Trust v. Pharmacy Council of India in WP 4919/2020 vide its judgment dated 06.11.2020 was pleased to reject the challenge to the policy of the PCI to cap the intake capacity in the course of D. Pharma to 60 students by holding that it will not sit in appeal over a policy decision taken by the PCI and was also pleased to take judicial notice of the statistics provided therein as well as the issues, which have also led to declaration of a moratorium of 5 years. The relevant extracts of the judgment of the Hon’ble High Court are reproduced hereunder:

“15. The policy decision in academic matters is the domain of the experts in the field of academics….

16. The Central Council of the PCI comprising of experts in the field of pharmacy, pharmaceutical chemistry, pharmacology elected by the UGC and representatives of the Director General Health Services, Drugs Controller India, UGC, AICTE and one member to represent each of the State Councils as well as one member from each of the State Governments has taken a policy decision. As contended in the affidavit and also submitted during the course of arguments that the said policy decision has been taken considering the market forces, the distribution of colleges across the nation, the requirement of Pharmacy workforce, the availability of qualified teaching faculties, pharmacists, the population ratio. The policy decision is also taken to grant moratorium of five years for opening new pharmacy institutes in the country under its decision dated 19.07.2019 (sic. 17.07.2019)….

17. It appears that, number of pharmacists per doctor and per population is as per the standards prescribed. One of the aspect considered by the respondent regulating the number of seats was to curb the concentration of such institutes in one geographical area so that equitable distribution of pharmacist manpower could be achieved. The diploma pharmacists do not have any other source of employment or self-employment except engaging in dispensing of medicines either in hospitals or chemist shops. It is brought on record by the respondent that the pharmacists workforce registered with various state councils currently stands at 1.5 million. The current approved output per year is at approximate 1,80,000 D. pharma and approximate 2 lakhs B. Pharmas from the already approved institutions. The generation of excessive workforce would lead to unemployment of qualified workforce. As such the decision has been consciously taken by the Central Council.

18. This Court would not sit in appeal over the policy decision of the expert bodies in academic matters. Recommendation of experts or policy decision of expert bodies would be beyond the pale of judicial review unless it is shown that the policy is arbitrary or is so unreasonable that no person of ordinary and reasonable prudence would subscribe to it. The courts will observe judicial restraint in policy decision of expert bodies and interfere only when it finds the decision arbitrary.”

40. That as far as contention of the Petitioner that the answering respondent is bound by the principal of promissory estoppel and legitimate expectation is concerned. It is respectfully submitted that there is no legitimate expectation that regulatory regime will not change. It is pertinent to note that no promise was held out to any college by the Pharmacy Council of India to the effect that every college would be granted approval so there cannot be any legitimate expectation of such a nature. No right has been accrued in favour of the Writ Petitioners in order for them to claim any legitimate expectation. The Hon’ble Suprmee Court in the case of Jitendra Kumar v. State of Haryana (2008) 2 SCC 161 [LQ/SC/2007/1515] has reiterated the settled position of law that “a legitimate expectation is not the same thing as an anticipation. It is distinct and different from a desire and hope. It is based on a right. It is grounded in the rule of law as requiring regularity, predictability and certainty in the Government's dealings with the public and the doctrine of legitimate expectation operates both in procedural and substantive matters.”

41. That even assuming without admitting that there exists a legitimate expectation of private interests in the present case, such expectation will be subservient to a change in policy in public interest by the Pharmacy Council of India in accordance with law. In this regard, reliance is placed on the judgment of the Hon’ble Supreme Court in the case of Union of India v. International Trading Co., (2003) 5 SCC 437, [LQ/SC/2003/607] wherein the Hon’ble Supreme Court was pleased to hold as under:

“12. Doctrines of promissory estoppel and legitimate expectation cannot come in the way of public interest. Indisputably, public interest has to prevail over private interest. The case at hand shows that a conscious policy decision has been taken and there is no statutory compulsion to act contrary. In that context, it cannot be said that the respondents have acquired any right for renewal. The High Court was not justified in observing that the policy decision was contrary to statute and for that reason direction for consideration of the application for renewal was necessary….

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23. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country.”

42. That It is respectfully submitted that 384th Executive Committee decision dated 5.12.2022 has taken decision that while granting approval for the conduct of 1st year B.Pharm course in the first instance admission intake be restricted to 60 only and therefore the petitioner has been granted approval for 60 seats in B.Pharm Course. Further the Petitioner has not challenged the above decision also.

43. Further the new institution are granted provisional approval year wise until the 1st batch of students passes out. Thereafter the institution is granted approval u/s 12 Pharmacy Act, 1948, this way PCI ensures that institution has all the infrastructure & other requirement as per Pharmacy Act & education Regulation made there under at the end of 4th year when 1st batch passed out.”

18. Relying upon the aforesaid averments, it was submitted that the respondent council in exercise of the powers conferred upon it by the Act and the Rules has taken the decision in the interest of students by restricting intake capacity to 60 students only. It was submitted that policy decision taken in the 384th Executive Committee meeting held on 05.12.2022, is applicable to all Colleges and therefore, the petitioners cannot claim or make any grievance with regard to violation of fundamental rights under Article 19(1)(g) of the Constitution of India. It was further submitted that the cut-off date for taking the decision by the respondent Council is adhered to and therefore, the petitioners thereafter cannot pray to increase the intake capacity for 100 students.

19. Relying upon the decision of the Delhi High Court in a group of petitions in case of SRS College of Pharmacy Vs. Pharmacy Council of India (Order dated 18.11.2022 passed in W.P.(C)15720/ 2022 and other allied matters) it was submitted that in similar facts, the Education Institutes have approached the Delhi High Court for non-processing of their applications despite the payment of requisite fees. In such circumstances, the Delhi High Court issued directions to take a decision on the applications before 10.12.2022 as per the order passed by the Supreme Court dated 21.10.2022 in S.L.P. (C) 4862/ 2022.

20. Learned advocate Mr.Siddharth Dave also relied upon the order of the Apex Court in case of Parshvanath Charitable Trust and Another Vs. All India Council For Tech. Education and Others (Order dated 16.12.2022 in Misc. Application No.2174/2022 in C.A. No.9048/2012) wherein the Parshvanath Charitable Trust prayed to process the application for the Academic Year 2023-24 in view of the interim order passed by the Apex Court and such application was disposed of by the Apex Court on the ground that if any permission is granted to such institute, the interim order of the Apex Court dated 31.05.2022 and final judgment dated 15.09.2022 in S.L.P. (C) No.19671/2021 titled Pharmacy Council Of India Vs. Rajeev College of Pharmacy and Others (Supra) would not be applicable.

21. It was therefore submitted that the reliance placed by the petitioners on the decision of Rajeev College of Pharmacy (Supra) would not be applicable to the facts of the case of the petitioner as the applications of the petitioners are already decided within the time limit prescribed by the Apex Court.

22. Having heard the learned advocates appearing for the respective parties and having gone through the various decisions relied upon by the respective advocates, it appears that the respondent Pharmacy Council has decided the application made by the petitioners for intake of 100 students for the First Year of B.Pharm Course for the Academic Year 2022-23 along with other such Education Institutes uniformly on the basis of the policy decision taken in the 384th Meeting of the Executive Committee held on 05.12.2022 by restricting intake capacity to 60 students.

23. Learned advocate Mr.Siddharth Dave who appears on behalf of respondent Council has not placed on record the minutes recorded by the respondent Council for arriving at such decision but has tried to explain the same in the affidavit which is exhaustively extracted here-in-above for taking policy decision to restrict the intake capacity to 60 students whereas the Education Institutes have made applications for intake of 100 students for the First Year of B.Pharm for the Academic Year 2022-23 and there is no deficiency pointed out as per Regulations, 2014.

24. It also appears from the record that except serving a copy of decision of granting recognition with intake of 60 students, no reason is stated as to why the intake capacity is restricted to 60 students only when admittedly the petitioners are eligible for admission of 100 students as per the requirements made in the Regulations, 2014 for which the petitioners have created infrastructure and have appointed the staff for teaching 100 students in the First Year of B.Pharm for the Academic Year 2022-23.

25. The contention raised on behalf of the respondent Council that the decision in case of Pharmacy Council Of India Vs. Rajeev College of Pharmacy (Supra) would not be applicable to the facts of the case as the petitioners have already been granted recognition with intake of 60 students and the cut-off date is already over, is not tenable in view of the fact that in the Misc. Application preferred before the Apex Court, the application of the respective institutes was not at all processed whereas in the facts of the case, the same is processed arbitrarily and without assigning any reason to restrict the intake capacity for admission for the First Year B.Pharm Course for the Academic Year 2022-23 to 60 students by the respondent Council while granting the recognition to the petitioner institutes. In such circumstances, the relevant observations made by the Apex Court in case of Pharmacy Council Of India Vs. Rajeev College of Pharmacy (Supra) would be of relevance which reads as under:

“50. It will be relevant to refer to the observations of this Court in the case of Shrimati Hira Devi and others vs. District Board, Shahjahanpur, which reads thus:

“The defendants were a Board created by statute and were invested with powers which of necessity had to be found within the four corners of the statute itself.”

51. It will also be relevant to refer to paragraph 18 of the judgment of this Court in the case of V.T. Khanzode (supra), which is as follows:

“18. In support of this submission, reliance is placed by the learned counsel on the statement of law contained in para 1326 and 1333 (pp. 775 and 779) of Halsbury's Laws of England, 4th Edn. In para 1326 it is stated that:

“Corporations may be either statutory or non-statutory, and a fundamental distinction exists between the powers and liabilities of the two classes. Statutory corporations have such rights and can do such acts only as are authorised directly or indirectly by the statutes creating them; nonstatutory corporations, speaking generally, can do everything that an ordinary individual can do unless restricted directly or indirectly by statute.” Para 1333 says that:

“The powers of a corporation created by statute are limited and circumscribed by the statutes which regulate it, and extend no further than is expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of its incorporation, or may be fairly regarded as incidental to, or consequential upon, those things which the legislature has authorised. What the statute does not expressly or impliedly authorise is to be taken to be prohibited.”

There is no doubt that a statutory corporation can do only such acts as are authorised by the statute creating it and that, the powers of such a corporation cannot extend beyond what the statute provides expressly or by necessary implication. If an act is neither expressly nor impliedly authorised by the statute which creates the corporation, it must be taken to be prohibited. This cannot, however, produce the result for which Shri Nariman contends. His contention is not that the Central Board has no power to frame staff regulations but that it must do so under Section 58(1) only. On that argument, it is material to note that Section 58(1) is in the nature of an enabling provision under which the Central Board “may” make regulations in order to provide for all matters for which it is necessary or convenient to make provision for the purpose of giving effect to the provisions of the Act. This provision does not justify the argument that staff regulations must be framed under it or not at all. The substance of the matter is that the Central Board has the power to frame regulations relating to the conditions of service of the Bank's staff. If it has that power, it may exercise it either in accordance with Section 58(1) or by acting appropriately in the exercise of its general power of administration and superintendence.” [emphasis supplied].

52. It could thus be seen that this Court has approved paragraph 1326 and 1333 (pp. 775 and 779) of Halsbury's Laws of England, 4th Edition, to the effect that a statutory corporation can do only such acts as are authorised by the statute creating it and that the powers of such a corporation cannot extend beyond what the statute provides expressly or by necessary implication. Though in the said case, this Court held that the said principle is not applicable inasmuch as the Central Board has the power to frame regulations relating to the conditions of service of the Bank's staff, the said principle will indeed be applicable to the case at hand.

53. Shri Maninder Singh, learned Senior Counsel, further submitted that the preamble of the said Act itself used the word “regulate” and the word “regulate” would include within its ambit the power to “prohibit”. Strong reliance is placed on the judgment of this Court in the case of Star India Private Limited (supra). However, it is to be noted that in the said case, certain clauses of the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 notified on 3-3-2017, made under Section 36 of the Telecom Regulatory Authority of India Act, 1997, together with the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017 notified on the same date were under challenge. In the present case, what is being sought to be done was done by a Resolution of the Central Council of the appellant-PCI and not by any Regulation framed under the provisions of the said Act. As such, the judgment of this Court in the case of Star India Private Limited (supra) is not applicable to the facts of the present case.

54. Shri Maninder Singh further relied on the judgment of the Division Bench of the Bombay High Court, Aurangabad Bench, in Sayali Charitable Trust’s College of Pharmacy (supra). However, since we have held that the right to establish an educational institution is a fundamental right under Article 19(1)(g) of the Constitution of India and reasonable restrictions on such a right can be imposed only by a law and not by an execution instruction, we are of the view that the Division Bench of the Bombay High Court, Aurangabad Bench, in the said case does not lay down the correct position of law. In our view, the view taken by the High Courts of Karnataka, Delhi and Chhattisgarh lays down the correct position of law.

55. Since we have held that the Resolutions/communications dated 17th July 2019 and 9 th September 2019 of the Central Council of the appellant-PCI, which are in the nature of executive instructions, could not impose restrictions on the fundamental right to establish educational institutions under Article 19(1)(g) of the Constitution of India, we do not find it necessary to consider the submissions advanced on other issues. We find that the Resolutions/communications dated 17th July 2019 and 9 th September 2019 of the Central Council of the appellant-PCI are liable to be struck down on this short ground.

56. Before parting, we may observe that there could indeed be a necessity to impose certain restrictions so as to prevent mushrooming growth of pharmacy colleges. Such restrictions may be in the larger general public interest. However, if that has to be done, it has to be done strictly in accordance with law. If and when such restrictions are imposed by an Authority competent to do so, the validity of the same can always be scrutinized on the touchstone of law. We, therefore, refrain from considering the rival submissions made on that behalf.

57. It is further to be noted that the applications seeking approval for D. Pharm and B. Pharm courses are required to be accompanied by a “No Objection Certificate” (“NOC”) from the State Government and consent of affiliation from the affiliating bodies. While scrutinizing such applications, the Council can always take into consideration various factors before deciding to allow or reject such applications. Merely because an institution has a right to establish an educational institution does not mean that such an application has to be allowed. In a particular area, if there are more than sufficient number of institutions already existing, the Central Council can always take into consideration as to whether it is necessary or not to increase the number of institutions in such an area. However, a blanket prohibition on the establishment of pharmacy colleges cannot be imposed by an executive resolution.”

26. Moreover, with regard to the reliance placed on the decision of Delhi High Court in case of SRS College of Pharmacy Vs. Pharmacy Council of India (supra), the petitions were filed before the Delhi High Court wherein application was not processed by the Pharmacy Council and therefore direction was issued to process the application before the cut-off date. Therefore, in the facts of the case, the order of the Delhi High Court would be of no help to the respondent Pharmacy Council.

27. The decisions relied upon by the respondent Pharmacy Council referred to in affidavit in reply also would not justify the impugned order restricting intake capacity to 60 students instead of 100 students for the First Year of B.Pharm course for the Academic Year 2022-23 by the petitioner institutes, as no reason whatsoever is given in the impugned order justifying such decision. Being a statutory authority, the respondent Council ought to have given reasons to justify the action of restricting the intake capacity to 60 students to be admitted by the petitioner institutes.

28. In view of above, the petitions are accordingly allowed. The impugned order dated 05.12.2022 passed by the respondent Pharmacy Council qua the petitioners of the respective petitions is hereby modified and the recognition/ permission to admit intake of 100 students for the First Year of B.Pharm course for the Academic Year 2022-23 as prayed for by the respective petitioners in respective petitions is ordered to be granted. The petitioners shall accordingly inform the Admission Committee so as to provide the admission to intake capacity of 100 students instead of 60 students before 16.01.2023 which is stated to be the last date of admission as extended by the Admission Committee.

29. Rule is made absolute to the aforesaid extent. No order as to costs.