TMI Blog2017 (7) TMI 1310X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Bih ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff. - Civil Appeal No. 8121/2004 - - - Dated:- 3-7-2017 - J.S. Khehar, C.J.I., N.V. Ramana And Dr. D.Y. Chandrachud, JJ. JUDGMENT N.V. Ramana, J. 1. This case revolves round the complexities faced by the State of Jharkhand [hereinafter 'Jharkhand' for brevity] and applicability of laws, framed by the erstwhile State of Bihar [hereinafter 'Bihar' for brevity], to the newly bifurcated State by means of Bihar Reorganization Act, of 2000 (Act No. xxx of 2000) [hereinafter 'BROA' for brevity]. In this Civil Appeal we are called upon to determine the scope of Sections 30, 31 and 32 of Pharmacy Act, 1948 [hereinafter 'Act' for brevity] and it's applicability to the new State after 15.11.2000. The examination of the questions which fall for our consideration, as indicated hereafter, would also involve consideration of various provisions of BROA, which we propose to do after noticing the brief factual background. 2. The Act came into force in India including the undivided Bihar in 1948. In the State of Bihar, State Pharmacy Council, under the Chapter III was established on 07.02.1955 and consequently First Register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acy Institute, Ranchi, Registrar, Pharma cy Registration Tribunal, Bariyat, Ranchi on prescribed fee and the completed form along with the bank draft can be deposited at the same place. Sd/- (Prakash Kumar) Dy. Secretary to Govt. PR. 2278 (Health 100) 2001-2002 (emphasis supplied) 4. It is clear from the press notification that all the persons who have qualification Under Section 31 of the Act were qualified to apply for registration as pharmacists. Being aggrieved, three diploma holders in pharmacy from the recognized institutions and registered as pharmacists filed Writ Petition being W.P. No. 1429 of 2002, praying for writ in the nature of certiorari to quash the press notification dated 14.01.2002 and for a writ in the nature of mandamus to Registration Tribunal, Ranchi, the Respondent No. 6 herein, to register only such persons, as pharmacists, who have requisite qualifications in terms of the Education Regulations, 1991 i.e., having qualification of diploma or degree of duly recognized by Pharmacy Council of India or State Councils. The Petitioners before the High Court mainly contended that when the First Register Under Section 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of either the Act or the Education Regulations by the competent Legislature, it could not be postulated that the law had ceased to be in force merely on the formation of the State of Jharkhand. Section 84 of the Bihar Reorganization Act, in our view, is clear. Moreover, it is not possible for the Court to contemplate a lawless State as it were. If the argument of the Respondents were to be accepted, the position would be that there was no law relating to Pharmacy or regarding qualifications for getting recognition as a Pharmacist in the State of Jharkhand and it is yet to be made. In other words, until the same is made there will be a vacuum. Such an argument, unless compelled, cannot be acceptable. The territories now forming the State of Jharkhand originally formed part of the State of Bihar, were governed by the Act and the Education Regulations promulgated and adopted in terms of Section 85 of the Bihar Reorganization Act. This scheme of the Reorganization Act is consistent with the general principle that a law once made applicable to a territory will continue to apply to that territory unless its application is abrogated or dispensed with by the competent Legislature or autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 2000? 2. Whether persons who do not possess any qualification as prescribed by the Education Regulations are entitled to be registered by the State of Jharkhand? Submissions 10. Before this Court, learned Senior Counsel Shri A. Mariarputham, for Appellant has mainly contended that- a. On reading the provisions of the Act, it is clear that there is a mandatory requirement to have register Under Section 29 by every State/State Government and the State Council is duty bound to maintain the register as required Under Section 29. b. The Hon'ble High Court has erred in failing to appreciate that every State has to have a First Register of the pharmacists on its own as mandated in Section 30 and 31 of the Act which is an express provision. If the interpretation given by the Hon'ble High Court is agreed, then Section 29, 30 and 31 will become redundant and meaningless. c. In any case the Education Regulation which is a subordinate legislation c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed the standard of quality of drugs sold in India, the importance of the role played by a pharmacist was realized. The Drug Rules, made under the Drugs and Cosmetics Act, prescribed that the medicines which were compounded on the prescription of medical practitioner can only be sold directly by a pharmacist. In the absence of a qualified pharmacist, there was a threat to the general health of people in India. Therefore with a view to regulate the profession and practice of pharmacy, Pharmacy Bill of 1947 was introduced in the Parliament. It was referred to the Select Committee which made recommendations. Incorporating the same, the bill was passed. The statement of objects and reasons makes it clear that only persons with minimum standard of professional education should be permitted to practice the profession of pharmacy and for that purpose; it was proposed to establish a Central Pharmacy Council with powers to prescribe minimum standards of pharmacy education. It was also proposed to establish provincial registers of qualified Pharmacists. 13. After the Act came into force, erstwhile Bihar constituted Registration Tribunal which duly prepared the First Register of pharm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions.-(l) Subject to the provisions of this section, the Central Council may, subject to the approval of the Central Government, make regulations, to be called the Education Regulations, prescribing the minimum standard of education required for qualification as a pharmacist. In accordance therewith the Pharmacy Council notified the Education Regulations in the year 1953 which was subsequently replaced by the Education Regulations, 1972. These Regulations were repealed and replaced by the Education Regulations, 1981. As of now the Education Regulations, 1991 (repealing Education Regulations, 1981) are in force which were notified on 11.07.1992. It is to be noted that these Education Regulations have been in force now for past 50 years and have been implemented in all parts of the country uniformly. Section 11 of the Act provides for enforcement of the Education Regulations framed Under Section 10 of the Act. 17. The Chapter IV of the Act, inter alia, provides for qualification, registration, renewal and removal of pharmacists from the register. Under Section 29 thereof it shall be the duty of the State Government to cause to be prepared a register of pharmacists for the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tside The words the Provinces at 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 of medical practitioners for a total period of not less than three years, or (c) has passed an. examination recognized as adequate by the State Government for commoners 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. 18. When the Act was first enforced in the erstwhile Bihar there was neither a formal course in Pharmacy nor was there any Education Regulation made by the Central Council. The Section 31 stipulated qualifications for pharmacists, as a temporary measure, for preparation of First Register in the erstwhile Bihar. Section 32 of the Act prescribes qualifications for subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns Under Section 31 for a limited period till the framing of Education Regulations. After the Act came into force by reason of Sections 10 and 11 the Central Council was empowered to make Education Regulations prescribing minimum standards of Pharmacy education. Thus, Sections 30 and 31, in our considered opinion, were intended to be effective and enforceable only till such time the Central Council makes Education Regulations. This is the reason why Section 32 starts with the phrase 'after the date appointed under Sub-section (2) of Section 30 and before education Regulations have taken effect in the State.' In such a case a person shall be entitled to have his name entered in the register if he carries on the profession of the pharmacy in the State and he satisfy the conditions prescribed by the State. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he laws made by the existing State out of which a new State is formed continue to apply to the territories included in the new State? When the existing State territory is reorganized by the Parliament there is no change in Sovereignty. It is only adjustment of territories by transferring some territories in the existing State to a newly formed State. Therefore, all the laws which were applicable to the territories of the re-organized State would continue to apply to the territories transferred to the new State until the latter either adapts or, subject to its competency amends or repeals the existing and applicable laws. 26. Whenever a law was made under the Articles 2, 3 and 4 of the Constitution of India, re-organizing the State, the Parliament included provisions to explicitly spell out such position as explained in paragraphs above. The States Re-organizations Act of 1956 The State Re-organizations Act of 1956, Act XXXVII of 1956. 119. Territorial extent of laws.- The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately be fore the appointed day extends or applies, and territorial references in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construed as meaning the territories within that State immediately before the appointed day. 89. Power to adapt laws.- For the purpose of facilitating the application in relation to the State of Punjab or Haryana or to the Union territory of Himachal Pradesh or Chandigarh of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Madhya Pradesh Re-organization Act of 2000, Madhya Pradesh Re-organization Act of 2000, Act XXVIII of 2000. 78. Territorial extent of Laws.-The provisions of Part II of this Act shall not be deemed to have effected any change in the territories to which any law in force im mediately before the appointed day extends or applies, and territorial references in any such law to the State of Madhya Pradesh shall, until otherwise provided by a competent Legislature or other compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the State of Andhra Pradesh shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing State of Andhra Pradesh before the appointed day. 101. Power to adopt laws.- For the purpose of facilitating the application in relation to the State of Andhra Pradesh or the State of Telangana of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. contained provision which laid down that the laws in existing State would apply to all the territories transferred to form a new State. 27. The BROA contains similar provisions in Sections 84 and 85 which read as under. 84. Territorial extent of laws.-The provisions of Part II of this Act shall not be deemed to have effected any change in the territories to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bihar, it shall apply to the Bihar and Jharkhand until it is amended by the new State. The territories to which the said Act is made applicable would also include the territories which were included in the Jharkhand. Section 85 is an enabling provision which empowers both the States to make adaptations and modification of the law by way of amendment to the law as the applicable to newly formed State. 30. We shall now consider four decisions of this Court which have a direct bearing on the principles summed up above, in State of Punjab v. Balbir Singh (1976) 3 SCC 242 the Respondents who were government Servants challenged a government Order dt. 28.10.1966 by which all of them were reverted from the post of sub-divisional officer. These orders were challenged, before the High Court of Punjab and Haryana, contending that they had become automatically confirmed as members of service and under the Punjab Service of Engineers, Buildings and Roads Branch (Recruitment and Conditions of Service) Rules, 1942 and therefore they could not have been reverted before complying with Article 311(2) of the Constitution of India. The learned single judge allowed the writ petition and the resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention of the Appellant was that the order passed by the Punjab authority has become final and therefore he is entitled to have another holding of 50 acres in the State of Haryana. Referring to Section 88 of BROA which dealt with territorial extent of laws and Haryana Adaptation of laws (States and Concurrent) Orders 1966, this Court rejected the appeal observing as under- 11. A combined reading of these two clauses makes it clear that any order made or anything done or any liability incurred or a right accrued before, the 1st November, 1966 would not be affected by the coming into force of the order. These two clauses show unambiguously that the respective State Governments would be entitled to give effect to orders passed before 1st November, 1966, declaring the surplus area by utilizing them for the resettlement of the tenants, despite the Re-organization of the State of Punjab The orders passed will be respected by both the States. The fact that the land belonging to a particular owner, under fortuitous circumstances, fall in the two newly formed States, will not in any way affect the operation of the orders which had become final prior to 1st November, 1966. To acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere appointed after 1.11.1966 but before the application of 1982 Rules. There is no controversy that if the 1965 Rules continued to be in force in the Union Territory after 1.11.1966 unless repudiated or repealed, the concerned employees in these matters, subject to fulfillment of the conditions of eligibility under the 1965 Rules, would be entitled to its benefit. The question for consideration, therefore is whether the 1965 Rules were modified, repudiated or repealed in their applicability to these employees? 7. It is, therefore, clear that the Punjab Government National Emergency (Concession) Rules 1965 continued to apply in the Union Territory of Chandigarh even after 1.11.1966 till modified, changed or repudiated by the Union Territory Administration and they continued to apply to the employees appointed in the Union Territory after 1.11.1966 who were eligible for the benefit of those rules. This is so because these rules, relate to matters for which the Central Civil Services Rules were not applied to employees in Class II, III IV Posts. The contrary view taken by the Tribunal and the High Court cannot, therefore, be upheld. 33. The effect of Sections 84 and 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After their amendment or alteration, they shall have effect subject to the adaptations and modifications made. (emphasis supplied) 34. From our above discussion, we may sum up 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. 35. 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 39. At this stage we may mention that the High Court has not considered the effect of Section 84 of BROA fully with reference to First Register, though it came to the conclusion that there was no need for preparing the First Register all over again. The First Register for the State of Jharkhand is the register already prepared for the undivided Bihar including all the pharmacists who may now be residing in the State of Jharkhand. 40. In the earlier part of the judgment we have considered the effect of Section 84 on the First Register prepared by the Bihar. This was not specifically urged before us. Be that as it may, as already observed by us, whenever a newly formed State desired to underta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act was adopted Under Sections 84 and 85 of BROA, no such amendment has been made. In that view of matter applying Section 84 we are inclined to hold that First Register prepared by the erstwhile Bihar will be deemed and continues to be the First Register for the Jharkhand. This does not however prohibit the Jharkhand to take up subsequent registration as per Sections 32 and 32A and 32B. In such an event concerned authority of Jharkhand has to follow the Education Regulations as amended from time to time by the Pharmacy Council of India. 42. The Section 86 of BROA, explicitly empowers this Court to construe the law in a manner to effectively implement Sections 84 and 85. In light of having considered all the provisions of BROA, we are of the opinion, that all pharmacists in the First Register of pharmacist for the former State of Bihar, whose residential address, as shown therein, fall in the territory of State of Jharkhand, shall be construed to be part of First Register of Jharkhand. Future inclusion of additional names in the Register is to be made strictly in terms of Section 32(2) of the Pharmacy Act. We further hope that State of Jharkhand will take all necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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