Ranjan Sinha vs Ajay Kumar Vishwakarma .

RANJAN SINHA & ANR ...APPELLANTS

VERSUS

AJAY KUMAR VISHWAKARMA & ORS. ...RESPONDENTS

JUDGMENT

JUSTICE N. V. RAMANA

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 Signature Not Verified

new State after 15.11.2000. The examination of the Digitally signed by SHASHI SAREEN Date: 2017.07.04 15:55:20 IST Reason:

questions which fall for our consideration, as indicated Page 2 of 53

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 of pharmacists,

under Section 30 of the Act, was duly prepared. In the

meanwhile, the Education Regulations framed by Pharmacy

Council of India under Section 10 of the Act came into force

with effect from 07.02.1958. It may be mentioned that after

Education Regulations came into force, only such persons

with qualifications as per those regulations can be entered

in the Register of Pharmacists.

3. After the bifurcation, Jharkhand constituted Registration

Tribunal under Section 30 of the Act on 12.11.2001. The

said Tribunal published the following notification on

14.01.2002 inviting applications for registration of

pharmacists in the State of Jharkhand.

Page 3 of 53

H I N D U S TA N Published from Ranchi, Patna, Delhi and Lucknow

RANCHI, MONDAY 14 TH JANUARY 2002

GOVERNMENT OF JHARKHAND

HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE DEPARTMENT (MEDICAL EDUCATION AND RESEARCH)

PRESS NOTIFICATION As per notification No. 40(i) of the Health, Medical Education and Family Welfare Department dated 10.01.2002 all persons having qualification under Section 31 of the Pharmacy Act 1948 may apply for registration and the last date for making such applications fixed as 25.02.2002.

The prescribed fee for registration are described as under:

1. Registration fee Application form fee :Rs. 25/-

Inscentive fee :Rs. 25/- Registration fee :Rs. 200/-

2. Renewal fee Incentive fee :Rs. 25/- Renewal fee :Rs.100/-

3. No objection certificate : Rs.100/- fee 4. Duplicate Certificate : Rs. 275/- fee 5. Late fee : Rs. 25 per year

The application forms can be obtained on any working day from the office of Pharmacy Institute, Ranchi, Registrar, Pharmacy 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.

P.R. 2278 (Health 100) 2001-2002 Page 4 of 53

(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 of the Act was

prepared by the erstwhile Bihar, there is no question of

preparing First Register again by Jharkhand and that any

subsequent registration or preparation of register will be in

accordance with Section 32 in which event only those

persons who fulfill the qualification as per the Education Page 5 of 53

Regulations would be entitled to be registered as

pharmacists.

5. Before the High Court, Jharkhand took a plea that on

formation of the new State it acquired a right to prepare First

Register in terms of Section 30 and that in furtherance

thereof a Registration Tribunal was constituted to register all

those who possess qualifications in terms of Section 31. The

State Pharmacy Council also took a similar plea. It is a

matter of record that out of 10950 applications received

pursuant to 14.01.2002 notification, a large number of them

i.e., 8940 persons did not have the degree or diploma in

pharmacy. But all of them sought registration relying on

Section 31(d) of the Act.

6. A division bench of the High Court of Jharkhand on elaborate

consideration of applicable provisions of the Act and BROA

came to the conclusion that Education Regulations,

applicable to the erstwhile Bihar, are law for the new State

of Jharkhand in terms of Sections 84 and 85 of the BROA and

therefore unless a person is qualified as per Education

Regulations, cannot get himself registered. It was observed Page 6 of 53

as under-

What is contended on behalf of the Petitioners is that the Pharmacy Act was extended to the State of Bihar had notified and adopted the Education Regulations issued under Section 10 of the Act which was in Part II of the Act, that both the Act and the Education Regulations hence constitute law for the purpose of the State of Jharkhand carved out of the modification of either the Education Regulations or the Pharmacy Act by the competent Legislature, namely, the Parliament, that no such attempt was also made by the State of Legislature and in the Jharkhand and unless a person was qualified in terms of the Education Regulations, he could not get his name entered in the Register. We find considerable force in this submission. It is true that the Jharkhand was carved out with effect from 15.11.2000. By virtue of Section 84 of the Bihar Reorganization Act, the Pharmacy Act and the Education Regulations applied. In the absence of any modification, alternation or repeal 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 law less 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, can not 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 authority or its replacement by any other law enacted in that behalf. Therefore, it is clear that Education Regulations promulgated under Section 10 and adopted in terms of Section 11 of the Act to the territory in question, continues to apply. There is also the stand adopted by the Indian pharmacy Council in its additional counter affidavit. We find the said stand sustainable in law.

Page 7 of 53

7. In dealing with the question whether Jharkhand is entitled to

prepare the First Register again, the High Court observed

that it is skeptical on the need for preparing the First

Register in terms of Section 30 of the Act and went on to

say.

There was already a First Register for the State of Bihar in- cluding the territories forming the State of Jharkhand in terms of Section 3 of the State of Bihar Reorganization Act. Those who are included in the First Register and who are practicing their profession within the territories newly forming the Jharkhand, would continue to have the right to practice their profession in the newly created State of Jharkhand. The first register for State of Jharkhand would be of those persons who are already in the register pre- pared for the undivided State of Bihar based on their terri- torial loyalty or the situs of their practice. There will there- fore be no need for preparing the First register all over again as urged by the counsel for the State of Bihar and the tribunal constituted under Section 13 of the Act. The First register for the State of Jharkhand is the register al- ready prepared for the undivided Bihar including all those who are now of State of Jharkhand or are practicing their profession in the territories of the State of Jharkhand. What would arise would only be the inclusion of further names of qualified persons, if they possess the requisite qualification under the Education regulations and in terms of Section 32 (2) of the Pharmacy Act. The argument, that on the forma- tion of a State, the State is obliged to prepare a First regis- ter in terms of Section 30 of he Act with reference to Sec- tion 31 of the Act cannot, therefore, be accepted.

8. Aggrieved by the Order of the High Court, appellants herein

appealed by way of special leave to this Court.

POINTS FOR CONSIDERATION Page 8 of 53

9. In light of these background facts and contentions raised by

the appellants, following two points would arise for

consideration-

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 Sec-

tion 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 phar-

macists on its own as mandated in Section 30 and 31 of

the Act which is an express provision. If the interpretation Page 9 of 53

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 subordi-

nate legislation cannot prevail over the express provisions

of the Act. The High Court erred in laying down to proce-

dure which is not in consonance with the express provi-

sions of the Act.

11. Learned Senior Counsel Shri Ajit Kumar Sinha, for State

of Jharkhand contends that-

a. Section 30 requires First Register to be prepared by the

State Government by constituting a Registration Tribunal.

b. In the erstwhile State of Bihar, there was a Register in

existence, does not take away the obligation of the State

of Jharkhand to prepare the First Register.

c. The fact that territories comprised in the State of

Jharkhand were earlier part of Bihar, does not detract

from the fact that Jharkhand is a separate and

independent State, and that it is a new State, or affect its

rights and obligations under Section 30.

d. The obligation to prepare the first register and the right to

do so by the new State of Jharkhand is clear and Page 10 of 53

protected by Section 30.

e. A view that it is not desirable to include in the First

Register, all the persons mentioned in Section 31 of the

Act as eligible to be included in the first register, cannot

be a factor or consideration in interpreting Section 30.

Section 30 has to be interpreted on its own terms and

since the language is clear, has to be given effect to, as it

is.

f. In any event, a subordinate legislation like Education

Regulations, cannot be invoked to interpret Section 30 or

whittle down rights, obligations and entitlements under

Section 30. Sections 30 and 31 together are a complete

code for preparing the First Register. In this context,

Education Regulations cannot be factored in for the

purposes of interpretation, which is relevant only for

Section 32 i.e. subsequent inclusions in the Register.

g. There is nothing in Sections 84 and 85 of the Bihar

Reorganisation Act which militate against Sections 30 and

31 of the Pharmacy Act. They are general provisions to

deal with the administration of the State, in the context of

the new State of Jharkhand coming into existence, Page 11 of 53

whereas Sections 30 and 31 of the Pharmacy Act are

special provisions and in the field specified/occupied by

the Pharmacy Act, they would prevail and operate.

POINT NO. 1 AND 2

12. We propose to deal with both the points together. It appears

that after the enactment of Drugs and Cosmetics Act, 1940

which prescribed 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 Page 12 of 53

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 pharmacists and the State Government published the

same as per Section 30 (4) of the Act.

14. The Chapter I of the Act contains- short title, extent and

commencement of the Act and definitions. It would be

pertinent to note that Section 1 (3) states that Act will come

into force at once, but Chapters III, IV, V shall take effect in a

particular State from such date as the State Government

may, by notification in the Official Gazette, appoint in this

behalf. Further proviso to the said Section states that where

on account of the territorial changes brought about by the

reorganization of States on the 1 st day of November, 1956,

Chapters III, IV and V shall take effect in the remaining part

of that State from such date as the State Government may Page 13 of 53

in like manner appoint.1 Although it was argued that the

bifurcation of Jharkhand took effect after 1956 therefore, the

proviso to sub-section (3) of Section 1 is squarely applicable

to Jharkhand, such arguments are clearly erroneous as it is

apparent from the plain reading of the proviso itself. The

application of the proviso was a onetime measure which was

only applicable to the States Re-organization of States in

1956 as on 1st of November, 1956 and the application of this

proviso cannot be extended beyond 01.11.1956 by way of

interpretation of BROA.

15. At this stage, it would be apt to refer to two definitions

relevant for resolution of the dispute in this case. As per

Section 2 (h) "register" means a register of pharmacists

prepared and maintained under Chapter IV 2. The term

register connotes that both First Register as well as

subsequent register. Further, as per Section 2 (i), "registered

pharmacist" means a person whose name is for the time

being entered in the register of the State in which he is for

the time being residing or carrying on his profession or

1 This proviso was introduced by Act 24 of 1959 sec. 2 (w.e.f. 1-5-1960). 2 This definition was introduced by Act 70 of 1976, sec. 2, for clauses (h), (i) and (j) (w.e.f. 1-9-1976) Page 14 of 53

business of pharmacy.

16. The Chapter II3 of the Act contains the framework for the

Pharmacy Council of India and its functions. Under Section

10 of the Act, the Pharmacy Council of India is empowered

to make Education Regulations prescribing the minimum

standard of education required to be qualified as a

pharmacist.4 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.

3 Contains Sections 3 to 18 of the Act.

4

10. Education Regulations.-(l) Subject to the provisions of this section, the Central Coun- cil 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 qual- ification as a pharmacist.

Page 15 of 53

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 State. Section 30

deals with the constitution of a Registration Tribunal

consisting of three members entrusted with the powers of

preparing the First Register. Section 31 prescribes

qualification for registration in the First Register. These two

provisions are extracted below-

30. Preparation of first register- (1) For the purpose of preparing the first register, the State Government shall by notification in the Official Gazette constitute a Registration Tribunal consisting of three persons, and shall also appoint a Registrar who shall act as Secretary of the Registration Tribunal.

(2) The State Government shall, by the same or a like noti- fication, appoint a date on or before which applications for registration, which shall be accompanied by the prescribed fee, shall be made to the Registration Tribunal. (3) The Registration Tribunal shall examine every applica- tion received on or before the appointed date, and if it is satisfied that the applicant is qualified for registration un- der section 31, shall direct the entry of the name of the ap- plicant on the register.

(4) The first register so prepared shall thereafter be pub- lished in such manner as the State Government may di- rect, and any person aggrieved by a decision of the Regis- tration Tribunal expressed or implied in the register as so published may, within sixty days from the date of such publication, appeal to an authority appointed by the State Government in this behalf by notification in the Official Gazette.

(5) The Registrar shall amend the register in accordance with the decisions of the authority appointed under Page 16 of 53

sub-section (4) and shall thereupon issue to every person whose name is entered in the register a certificate of registration in the prescribed form

31. Qualifications for entry on first register- 5 A per- son 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 phar- maceutical chemistry or a chemist and druggist diploma of an Indian University or a State Govern- ment as the case may be. or a prescribed qualifica- tion granted by an authority outside 6 [***] 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 ade- quate 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

5 Substitute by by Act 24 of 1959. sec. 9, for "A person shall be entitled" (w.e.f. 1-5-1960). 6 The words "the Provinces at" omitted by the A.O.. 1950. Page 17 of 53

qualifications for subsequent registration. According to

Section 32 (2), after the Education Regulations were brought

in force, only those persons who possess qualification

prescribed by Education Regulations are eligible to be

entered in the register of the pharmacists. There is no

dispute about this fact.

19. After formation of Jharkhand with effect from 15.11.2000, by

reason of Section 3 of the BROA, the territories in the

erstwhile Bihar were included in the Jharkhand. As a result

those included territories ceased to be the territories of

Bihar, but, Section 84 and 85 of BROA saved all the

enactments in force immediately before 2000 and provided

that the provisions of the reorganization of the Bihar

[Section 3 to 6 in Chap 2, BROA], shall not be deemed to

effect the change in territories to which any law in force

applied. Further it is provided that any territorial reference in

any law to the Bihar shall be construed, as meaning, the

territories within the existing territories of Bihar before the

appointed day. All the laws which are referred to in Section

84 of the BROA would continue to have effect unless they Page 18 of 53

are modified by way of repeal or amendment by the

appropriate Government i.e., Central or State Government,

as the case may be.

20. Further the term 'law' is defined in Section 2 (f) of BROA

includes any enactment, ordinance, regulation, order, bye-

law, rule, scheme, notification or other instrument having,

immediately before the appointed day, the force of law in

the whole or in any part of the existing Bihar. Therefore, all

the laws immediately in force before the appointed date in

the erstwhile Bihar shall be deemed to be applicable to the

territories of Jharkhand and the territories of Bihar for the

purpose of applicability of laws shall be deemed to be part of

territories of erstwhile State of Bihar before the appointed

date.

21. Reverting to the Act, from reading of Sections 31 and 32, it is

very clear that the qualifications prescribed for entering the

name of the pharmacists in the First Register is different

from the qualifications prescribed for entering the name of

the pharmacist in the subsequent register, after coming into

force of Education Regulations. When the legislature enacted Page 19 of 53

the Act, there were hardly any pharmacy colleges offering

dedicated pharmacy course. Taking that into consideration,

Parliament prescribed qualifications 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 Page 20 of 53

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.

22. The question however, remains as to whether the First

Register prepared by the erstwhile Bihar shall be deemed to

be the First Register of the newly formed State of Jharkhand.

23. The Act came to force in India, including erstwhile Bihar, in

the year 1948. As per Section 29 (1), every State as soon as

Chapter IV has taken effect, the State shall prepare a

register of pharmacists by inference, such register is the

First Register. Section 31 prescribes qualifications for those

who would be entered into First Register. For the purpose of

registration in the First Register, State Government shall

constitute a Registration Tribunal and the First Register so

prepared shall be published. 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 Page 21 of 53

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.

24. 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. What is the

effect of such published First Register after the

re-organization of the State in 2000?

25. The Article 3 of the Constitution inter alia, empowers the

Parliament by law to form a new State by separation of

territory from any State or by uniting two or more States. Page 22 of 53 Article 4 is to the effect that the law made by the Parliament

with reference to Article 3 may contain supplemental,

consequential and incidental provisions. When a new State

is formed by law made by Parliament, whether the 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 19567, Bombay Re-organization Act 7 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- Page 23 of 53

of 19608, The Punjab Re-organization Act of 1966 9, Madhya

Pradesh Re-organization Act of 2000 10, Uttar Pradesh

Re-organization Act of 200011 and Andhra Pradesh

fore the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State imme- diately before the appointed day.

120. Power to adopt laws.- For the purpose of facilitating the application of any law in relation to any of the States formed or territorially altered by the provisions of Part II, the appropriate Government may, before the expiration of one year from the appointed 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 au- thority.

… 8 Bombay Re-organization Act of 1960, Act XI of 1960.

87.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 before the appointed day extends or applies, and territorial references in any such law to the State of Bombay shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State imme- diately before the appointed day.

88.Power to adapt laws.- For the purpose of facilitating the application in relation to the State of Maharashtra or Gujarat of any law made before the appointed day, the appropriate Government may, before the expiration of one year from that day, by or- der, made 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, re- pealed or amended by a competent Legislature or other competent authority. … 9 The Punjab Re-organization Act of 1966, Act XXXI of 1966.

88. 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 such law to the State of Punjab shall, until otherwise provided by a competent Legislature or other competent authority, be 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 adapta- tions 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. … 10 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- Page 24 of 53

Re-organization Act of 2014 12 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

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 competent authority be constituted as meaning the territories within the existing State of Madhya Pradesh before the appointed day.

79. Power to adopt laws.-For the purpose of facilitating the application in relation to the State of Madhya Pradesh or Chhattisgarh of any law made before the ap- pointed day, the appropriate Government may, before the expiration of two years from the 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 compe- tent authority.

… 11 Uttar Pradesh Re-organization Act of 2000, Act XXIX of 2000.

86. Territorial extent of laws.- The provisions of Part II shall not be deemed to have affected any change in the territories to which the Uttar Pradesh Imposition of Ceiling of Land Holding Act, 1961 and any other law in force immediately before the appointed day, extends or applies, and territorial references in any such law to the State of Uttar Pradesh shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing State of Uttar Pradesh before the appointed day.

87. Power to adapt laws.- For the purpose of facilitating the application in relation to the State of Uttar Pradesh or Uttaranchal of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, y 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 al - tered, repeated or amended by a competent Legislature or other competent author- ity.

… 12 Andhra Pradesh Re-organization Act of 2014, Act No. VI of 2014.

100. Territorial Extent of laws- The provisions of Part II shall not be deemed to have affected any change in the territories to which the Andhra Pradesh Land Re- forms (Ceiling on Agricultural Holdings) Act, 1973 and any other law in force immedi- ately before the appointed day extends or applies, and territorial references in any such law to the State of Andhra Pradesh shall, until otherwise provided by a compe- tent 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 rela- tion 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 modifica- tions so made until altered, repealed or amended by a competent Legislature or other competent authority.

… Page 25 of 53

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 which any law in force immedi- ately before the appointed day extends or applies, and ter- ritorial references in any such law to the Bihar shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territo- ries within the existing Bihar before the appointed day.

85. Power to adapt laws.- For the purpose of facilitating the application in relation to the Bihar or Jharkhand of any law made before the appointed day, the appropriate Gov- ernment may, before the expiration of two years from that day, by order, take 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 modifica- tions so made until altered, repealed or amended by a competent Legislature or other competent authority. Explanation.- In this section, the expression" appropriate Government" means as respects any law relating to a mat- ter enumerated in the Union List, the Central Government, and as respects any other law in its application to a State, the State Government.

28. A plain reading of Section 84 reveals the following. The

provisions of Part II dealing with the reorganization of

erstwhile Bihar into the existing Bihar and Jharkhand shall

not be deemed to have effected any change in the

territories to which any law in force before the appointed

day extends or applies. Any territorial references to any law

shall until provided by the competent legislature be

construed as meaning the territories within the existing

State of Bihar before the appointed day, when existing Bihar

stood re-organized.

Page 26 of 53

29. The Section 84 contains two legal fictions first is that the

reorganization of the Bihar would not affect the applicability

of laws made by the State of Bihar to all territories included

in it before reorganization and after the re-organization. In

other words, a law made by Bihar shall be applicable to all

the territories of erstwhile State of Bihar including the

territories of State of Jharkhand even after reorganization.

The Second fiction is that until Jharkhand provides for it by

way of amendment or otherwise, territorial reference in a

any law to the Bihar shall mean all the territories in the Bihar

before reorganization. For instance, if Bihar had made a law

as applicable to entire 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.

Page 27 of 53

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 Singh13, 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 resultant appeals were also dismissed

by the division bench. Before this Court only submission was

that the order on reversion having been received on or after

1.11.1966 i.e., appointed date is not saved by Section 88 of

the Punjab Reorganization Act because being an

administrative law it is not law. The submission was

rejected by this Court observing as under –

If this could be the position in the continuance of the law in the successor States, on what principles one can say that 13 (1976) 3 SCC 242 Page 28 of 53

the administrative. order made by the erstwhile State of Punjab automatically lapsed and came to an end on and from the appointed day on the coming into existence of the successor States. Is it possible to take the view that the Legislature when it made so many provisions in the Act in its various parts in regard to the matters already referred to, did not think it appropriate to make a provision for the continuance of the effect of the administrative orders passed by the Government of the erstwhile State of Pun jab until the Governments of the Successor States modified or changed it? Or is it, as a matter of law and propriety, reasonable to think that the Legislature did not consider it necessary at all to make such an ex press provision, as the continuance of the effect of such orders was so obvious even without such a provision? In our judgment when there is no change of sovereignty and it is merely an adjustment of territories by the reorganization of a particular State, the administrative orders made by the Government of the erstwhile State continue to be in force and effective and binding on the successor States until and unless they are modified, changed or repudiated by; the Governments of the successor States. No other view is possible to be taken. The other view will merely bring about chaos in the administration of the new States. We find no principle in support of the stand that administrative orders made by the Government of the erstwhile State automatically lapsed and were rendered ineffective on the coming into existence of the new successor States.

31. In Sher Singh v. Financial Commissioner of Planning,

Punjab14, the question was whether the Order of the

competent authority under Punjab Security of Land Tenures

Act, 1930 passed before the commencement of Punjab

Reorganization Act, would continue to have effect after the

appointed date. The 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 14 (1987) 2 SCC 439 Page 29 of 53

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 chat 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 re- settlement 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 accept the Appellant's contention would create anomalies. Persons against whom proceedings under the Act were taken and became final prior to 1st November, 1966, would be entitled to claim lands in both the States while those whose petitions are pending on the date the States Re-organization Act came into force would be in a disadvantageous position. This is not the object of the Act. Nor the scheme behind it. The States Re-organization was a historical accident. The land owners cannot take advantage of this accident, to the detriment of ejected tenants or tenants in need of re-settlement.

32. Dayanand v. Union of India15 is a case dealing with

entitlement of benefits, for employees appointed after

1.11.1966 (appointed day for bifurcation of erstwhile State

of Punjab), under Punjab Government National Emergency

(Concession) Rules, 1965 (law made by the erstwhile Punjab 15 (1996) 7 SCC 47 Page 30 of 53

State). This Court relied upon the dictum of State of Punjab

v. Balbir Singh to conclude that benefits under Punjab

Government National Emergency (Concession) Rules, 1965

needs to be extended and reasoned as under-

4. In the context of applicability of an administrative order of the Government of State of Punjab issued prior to 1.11.1966 it was held by this Court in State of Punjab and Ors. v. Balbir Singh and Ors. that by virtue of Section 88 of the Punjab Reorganisation Act, 1966, an administrative order made by the erstwhile State did not automatically lapse and continued to be in force, effective and binding on the successor State unless modified and repudiated. There can be no doubt that The Punjab Government National Emergency (Concession) Rules, 1965 which fall within the definition of "law" in Section 2(g) of the Punjab Reorganisation Act, 1966 continued in force and were effective in the Union Territory of Chandigarh until and unless modified, changed or repudiated by the Union Territory Administration. The question, therefore, is whether there was any modification, change or repudiation of the said 1965 Rules by the Union Territory administration after 1.11.1966? It may be mentioned that the Punjab Recruitment of Ex-servicemen Rules, 1982 repealed the Punjab Government National Emergency (Concession) Rules, 1965 but the saving clause therein preserved the rights which had accrued to any person under the repealed rules. All the employees, in these matters were 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. Page 31 of 53

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 85 of the BROA came up for

consideration yet again in Commissioner of Commercial

Taxes, Ranchi v. Swarna Rekha Cokes and Coals (Pvt.) Ltd.16.

Whether on bifurcation of Bihar and on creation of Jharkhand

(comprising territories which before the appointed date were

the territories of Bihar), benefits flowing from the industrial

policy of the erstwhile State of Bihar and the notification

issued under the Bihar Finance Act would enure to the

benefit of industries in Jharkhand after the appointed date?

This was the question which fell for consideration before this

Court. It was contended that unless and until similar

exemption is granted by the Jharkhand, the dealers were

bound to pay tax without claiming any benefits under

Industrial Policy. This Court referred to Section 84 and 85 of

BROA as well as earlier decisions of this Court State of

Punjab v. Balbir Singh, Sher Singh v. Financial Commissioner

of Planning, Punjab, Dayanand v. Union of India and held as

follows-

16 (2004) 6 SCC 689 Page 32 of 53

The language in these sections is clear and unambiguous. These sections provide that the laws which were applicable to the undivided State of Bihar would continue to apply to the new States created by the Act. The laws that operated continue to operate notwithstanding the bifurcation of the erstwhile State of Bihar and creation of the new Jharkhand. They continue in force until and unless altered, repealed or amended. … By virtue of Section 84, the territorial references in any such law (which includes the notification in question), to the State of Bihar shall be construed as meaning the territories within the existing State of Bihar before the appointed day, until otherwise provided by a competent Legislature or other competent authority. A conjoint reading of both these provisions makes it abundantly clear that the territorial references in any law in force immediately before the appointed day must be construed as meaning the territories within the existing State of Bihar before the appointed day. To facilitate their application in respect of the State of Bihar or Jharkhand, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law as it may consider necessary or expedient by way of repeal or amendment. Till such law is so repealed or amended in accordance with law, it shall have effect. 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 Page 33 of 53

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 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.

36. At the cost of repetition, we may mention that under Article

3 of the Constitution the Parliament can alter, amend,

amalgamate, form new States, diminish or increase area of a

State. The principle of ‘clean slate’ as applicable in Page 34 of 53

international law is not applicable when reorganization takes

place under Article 3 of the Constitution. 17 The reorganized

States do not usually start as tabula rasa, rather they are

successors of a pre-existing erstwhile States. Under the

BROA, the Jharkhand was carved out of the Bihar and the

two separate states came into existence on 15.11.2000. If

the laws in force were to lapse on the day the division was

effected, a chaotic situation would have emerged inasmuch

as the newly created State would be rendered a State

without laws. To avoid such situation, provisions like

Sections 84 and 85 of BROA have been enacted to maintain

continuity, and at the same time authorizing the States to

make such modifications and adaptations as are considered

necessary by mere issuance of orders within two years, and

thereafter by legislation.

37. As defined earlier ‘law’ includes ‘other instruments having

the force of law’. In view of use of the word ‘includes’, the

definition of ‘law’ under Section 2(f) shall be interpreted

exhaustively. In view of the above discussion, we hold that

the First Register prepared by the Bihar has the force of law

17 Supra, at 13 Page 35 of 53

under Section 2(f) of the BROA.

38. In view of the above, we may conclude that when the First

Register of Pharmacists prepared by the Registration

Tribunal was published by the Government of Bihar under

subsection (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.

Page 36 of 53

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 undertake the exercise of preparing the First

Register all over again by adopting the law such

empowering provisions were specifically made. We may

extract such provisions

ANDHRA PRADESH [Andhra A.L.O., 1954 (01.10.1953)] 33A. Special provision for preparation of the Register of Pharmacists for the State of Andhra.- (1) Notwithstanding anything contained in this Chapter, such person as may be authorized by the State Government of Andhra in this behalf (hereinafter called the authorized Officer) shall prepare a separate Register of Pharmacists for the State of Andhra as hereinafter provided and that Page 37 of 53

register shall, for all purposes be deemed to be the register prepared under this Act.

MAHARASHTRA [S.O. 2814, published in Gazette of India, 19.08.1964, Pt.II, S. 3(ii), Ext., p. 717 (722, 723)] 29A. Provision in respect of registers of pharmacists for the State of Maharashtra and the State of Gujarat. – (1) As soon as possible after the date on which the Bombay State Pharmacy Council (Re-organisation) Order, 1964, made under Section 4 of the Inter-State Corporation Act, 1957, comes into force, the Maharashtra State Pharmacy Council shall, notwithstanding anything contained in Ss. 30, 31 and 32, prepare and maintain thereafter a register of the pharmacists for the State of Maharashtra. The register shall include the name of –

(a) All pharmacists included in the register of phar- macists for the former State of Bombay duly pre- pared and maintained under S.29 whose residential addresses as shown therein on the aforesaid date do not fall in the territories of the State of Gujarat or in the area of the former State of Bombay trans- ferred to the State of Mysore or Rajasthan on the 1 st November, 1956, and in the register for the former State of Madhya Pradesh prepared and maintained likewise, whose residential addresses as shown therein on the aforesaid date fall in the territories of the State of Maharashtra:

Provided that, the names of the pharmacists in the register of pharmacists for the former State of Madhya Pradesh shall not be included in the register for the State of Maha- rashtra until the Maharashtra State Pharmacy Council starts functioning and operating in the Vidarbha region of this State of Maharashtra under clause (2) of sub-section (5) of S.19-A;

41. In so far as BROA is concerned, though 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 Page 38 of 53

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 steps to

constitute a State council in near future, if not already

undertaken. Consequently the High Court Order to the

extent of quashing the notification of State Government of Page 39 of 53

Jharkhand, dated 12.11.2001, constituting the Registration

Tribunal in terms of Section 30 and advertisement calling for

applications in terms of Section 31 is upheld.

43. In light of the above analysis and discussion, we order

hereunder-

a. 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.

b. 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.

c. The State of Jharkhand is at liberty to take all necessary

steps to constitute a State Council.

d. Those pharmacists who are registered in the First

Register of the erstwhile State of Bihar, before the

enforcement of Education Regulation made by the

Central Pharmacy Council, and who do not wish to

practice in the State in which their residential address

falls are at liberty to register themselves in the other

State in accordance with Section 32 (2) of the Page 40 of 53 Pharmacy Act. Here we make it clear that such of those

pharmacists whose names were registered in the First

Register prepared by the erstwhile State of Bihar, need

to formally seek registration under Section 32(2) of the

Act in the State of Jharkhand and they need not satisfy

the qualification prescribed by the Education

Regulation.

Illustration No.1- If ‘A’ has his name registered in the

first register of erstwhile State of Bihar. He is at liberty

to get his name registered in the State of Jharkhand as

per Section 32 (2) of the Act. Further ‘A’ need not fulfill

the qualification as prescribed under the Education

Regulation.

44. With the aforesaid observations and directions, the appeal

stands disposed of. There shall be no order as to costs.

…………………………….CJI (JAGDISH SINGH KHEHAR)

…………………………….J. (N V RAMANA)

…………………………….J. (DR. D Y CHANDRACHUD)

NEW DELHI, JULY 03, 2017 Page 41 of 53

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8382 OF 2017

(Arising out of Special Leave Petition (Civil) no. 1963 of 2006)

PHARMACY COUNCIL OF INDIA … APPELLANT

VERSUS

DR. ATMARAM DARIYANI & ORS. … RESPONDENTS

JUDGMENT

JUSTICE N. V. RAMANA

1. Leave granted.

2. This appeal is against the Judgment dated 24 th July, 2002

passed by the learned Single Judge of the High Court of

Madhya Pradesh, Jabalpur. By the said Judgment, the High

Court allowed the Writ Petition filed by the respondents

injuncting Chhattisgarh Pharmacy Council from proceeding

with renewal of registration granted by the Madhya Pradesh

Pharmacy Council before the reorganization of the latter under

the Madhya Pradesh Reorganization Act, 2000 (“MROA” for

brevity). By a separate judgment in C.A. No. 8121 of 2004, we

disposed of another connected matter giving certain directions

with reference to various provisions of the Pharmacy Act, 1948 Page 42 of 53

and the Bihar Reorganization Act, 2000. In that case, the issue

was whether the new State of Jharkhand can again undertake

exercise under Section 30 of the Pharmacy Act for preparing

the First Register of Pharmacists having regard to Sections 84

and 85 of the Bihar Reorganization Act which is same as the

laws made by the erstwhile Bihar and their application to the

territories included in the new State of Jharkhand. The law laid

down therein and some of the conclusions to the extent they

are relevant would also apply to this appeal. However, having

regard to the difference in the factual background, we propose

to deal with this appeal by this separate order.

3. After coming into force of the Pharmacy Act, the State of

Madhya Pradesh prepared the First Register. In 1953, the

Pharmacy Council framed Education Regulations which were

amended from time to time, the latest being the Education

Regulations, 1991 notified on 11.07.1992. The State of

Chhattisgarh was formed comprising certain territories of the

erstwhile Madhya Pradesh and Sections 78 and 79 of the

Reorganization Act deal with territorial extent of laws and

power to adapt laws. It may be mentioned that by reason of

these two provisions, the laws made by the State of Madhya Page 43 of 53

Pradesh before reorganization shall continue to apply even to

the territories which stood included in the new State of

Chhattisgarh.

4. The State of Chhattisgarh issued a notification on 01.03.2001

purporting to constitute Registration Tribunal. The said Tribunal

sought to undertake registration as per the qualifications laid

down under Section 31 of the Pharmacy Act to prepare the

First Register of pharmacists. The Pharmacy Council of India,

the appellant herein addressed the Secretary to Government

in Health and Family Welfare Department, Government of

Chhattisgarh and the Registrar of the Registration Tribunal

requesting to withdraw the notification dated 01.03.2001,

cancel registrations if done other than under Section 32(2) of

the Pharmacy Act and make the register of pharmacists for the

State of Chhattisgarh by bifurcating from the register of

pharmacists of Madhya Pradesh. The appellant also requested

to constitute the State Pharmacy Council for Chhattisgarh.

5. In the meanwhile, the first respondent Dr. Atmaram Dariyani,

President of Madhya Pradesh Pharmacists Association filed

Writ Petition No. 1472 of 2002 for a Writ of Prohibition against Page 44 of 53

Chhattisgarh Pharmacy Council directing not to usurp the

function of Pharmacy Council of Madhya Pradesh in renewing

the registration of pharmacists who were not First Registered

with Chhattisgarh Pharmacy Council. The High Court after

considering the Writ Petition in the light of Sections 30 and 34,

allowed the writ petition observing as under:

“Otherwise also, it is clear from the provisions of Sections 30 and 34 of the Act that Chhattisgarh Pharmacy Council cannot renew the registration of an incumbent whose name has not been entered in the First Register maintained by the Chhat- tisgarh Pharmacy Council. Right of renewal in my opinion is available to Chhattisgarh Pharmacy Council only with respect to those pharmacists who have chosen to get their names entered in that Council. M.P. Council has jurisdiction to renew those who have not moved out to Chhattisgarh. In my opin- ion, for exercising right of renewal, entry in the First Register is necessary. As a result of reorganisation, it has become nec- essary to undertake this exercise by respondent Nos. 4/5. In my opinion, though initial registration may have been granted by M.P. Pharmacy Council but after the date on which Pharmacy Council in Chhattisgarh has been consti- tuted and formation of State of Chhattisgarh has taken place, Chhattisgarh Council can renew registration for the period falling due after date on which entry of the pharmacists has been made in First Register by Chhattisgarh Council.

In view of above, it is directed that Chhattisgarh Pharmacy Council shall not renew any registration granted by the Mad- hya Pradesh Pharmacy Council which has not been entered in the First Register of the Chhattisgarh Pharmacy Council. In the facts and circumstances, costs on parties”.

6. In this appeal it is mainly contended by the Pharmacy Council

of India that the observations and directions of the High Court Page 45 of 53

are capable of being misused and amount to validating the

preparation of First Register under Section 30 of the Pharmacy

Act yet again for the State of Chhattisgarh. According to the

appellant, it would result in registering even those pharmacists

who only satisfy qualification under Section 31, ignoring the

mandatory provisions in Section 32 of the Pharmacy Act.

7. We have perused the material available on record. The

fundamental question which requires our consideration is

whether the new State of Chhattisgarh is competent to

constitute the Registration Tribunal under Section 30 for the

purpose of preparation of First Register; and secondly, whether

the Registration Tribunal was competent to undertake the

exercise of renewal of the registration of pharmacists who are

already included in the First Register of pharmacists prepared

by the erstwhile State of Madhya Pradesh.

8. Insofar as the first question is concerned, we have considered

the issue in detail in our judgment in C.A. No. 8121 of 2004.

We may refer to following paragraphs-

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 Page 46 of 53

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.

36. At the cost of repetition, we may mention that under Article 3 of the Constitution the Parliament can alter, amend, amalgamate, form new States, diminish or increase area of a State. The principle of ‘clean slate’ as applicable in international law is not applicable when reorganization takes place under Article 3 of the Constitution.18 The reorganized States do not usually start as tabula rasa, rather they are successors of a pre-existing erstwhile States. Under the BROA, the Jharkhand was carved out of the Bihar and the two separate states came into existence on 15.11.2000. If the laws in force were to lapse on the day the division was effected, a chaotic situation would have emerged inasmuch as the newly created State would be rendered a State without laws. To avoid such situation, provisions like Sections 84 and 85 of BROA have been enacted to maintain continuity, and at the same time authorizing the States to make such modifications and adaptations as are considered necessary by mere issuance of orders within two years, and thereafter by legislation.

37. As defined earlier ‘law’ includes ‘other instruments having the force of law’. In view of use of the word ‘includes’, the definition of ‘law’ under Section 2(f) shall be interpreted exhaustively. In view of the above discussion, we hold that the First Register prepared by the Bihar has the force of law under Section 2(f) of the BROA.

38. In view of the above, we may conclude that when the First Register of Pharmacists prepared by the Registration Tribunal was published by the Government of Bihar under subsection (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

18

Supra, at 13 Page 47 of 53

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 undertake the exercise of preparing the First Register all over again by adopting the law such empowering provisions were specifically made. We may extract such provisions Andhra Pradesh [Andhra A.L.O., 1954 (01.10.1953)] 33A. Special provision for preparation of the Register of Pharmacists for the State of Andhra.- (1) Notwithstanding anything contained in this Chapter, such person as may be authorized by the State Government of Andhra in this behalf (hereinafter called the authorized Officer) shall prepare a separate Register of Pharmacists for the State of Andhra as hereinafter provided and that register shall, for all purposes be deemed to be the register prepared under this Act.

Maharashtra [S.O. 2814, published in Gazette of India, 19.08.1964, Pt.II, S. 3(ii), Ext., p. 717 (722, 723)] 29A. Provision in respect of registers of pharmacists for the State of Maharashtra and the State of Gujarat. – (1) As soon as possible after the date on which the Bombay State Pharmacy Council (Re-organisation) Order, 1964, made under Section 4 of the Inter-State Corporation Act, 1957, comes into force, the Maharashtra State Pharmacy Council shall, notwithstanding anything contained in Page 48 of 53

Ss. 30, 31 and 32, prepare and maintain thereafter a register of the pharmacists for the State of Maharashtra. The register shall include the name of –

(a) All pharmacists included in the register of pharmacists for the former State of Bombay duly prepared and maintained under S.29 whose residential addresses as shown therein on the aforesaid date do not fall in the territories of the State of Gujarat or in the area of the former State of Bombay transferred to the State of Mysore or Rajasthan on the 1st November, 1956, and in the register for the former State of Madhya Pradesh prepared and maintained likewise, whose residential addresses as shown therein on the aforesaid date fall in the territories of the State of Maharashtra:

Provided that, the names of the pharmacists in the register of pharmacists for the former State of Madhya Pradesh shall not be included in the register for the State of Maharashtra until the Maharashtra State Pharmacy Council starts functioning and operating in the Vidarbha region of this State of Maharashtra under clause (2) of sub-section (5) of S.19-A;

41. In so far as BROA is concerned, though 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 Page 49 of 53

Act. We further hope that State of Jharkhand will take all necessary steps to constitute a State council in near future, if not already undertaken. Consequently the High Court Order to the extent of quashing the notification of State Government of Jharkhand, dated 12.11.2001, constituting the Registration Tribunal in terms of Section 30 and advertisement calling for applications in terms of Section 31 is upheld.

43. In light of the above analysis and discussion, we order hereunder-

a. 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.

b. 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.

c. The State of Jharkhand is at liberty to take all necessary steps to constitute a State council.

d. Those pharmacists who are registered in the First Register of the erstwhile State of Bihar, before the enforcement of Education Regulation made by the Central Pharmacy Council, and who do not wish to practice in the State in which their residential address falls are at liberty to register themselves in the other State in accordance with Section 32 (2) of the Pharmacy Act. Here we make it clear that such of those pharmacists whose names were registered in the First Register prepared by the erstwhile State of Bihar, need to formally seek registration under Section 32(2) of the Act in the State of Jharkhand and they need not satisfy the qualification prescribed by the Education Regulation. Illustration No.1- If ‘A’ has his name registered in the first register of erstwhile State of Bihar. He is at liberty to get his name registered in the State of Jharkhand as per Section 32 (2) of the Act. Further ‘A’ need not fulfill the qualification as prescribed under the Education Regulation.

9. In view of the law laid down by us as above the First Register

opened by the erstwhile State of Madhya Pradesh is deemed

to be the First Register for the State of Chhattisgarh based on

the territorial nexus, therefore there is no need to open yet

another First Register for the State of Chhattisgarh.

Consequently there is no requirement of constituting a Page 50 of 53

Registration Tribunal under Section 30 of the Pharmacy Act.

10. Insofar as the renewal is concerned, once the First

Register prepared by the erstwhile State of Madhya Pradesh is

deemed to be also the First Register of State of Chhattisgarh,

there cannot be any prohibition for the Pharmacy Council of

Chhattisgarh to undertake renewal under Section 32(2) or as

per law.

11. In view of the above, we dispose of this appeal with the

following direction.

a. First Register prepared by erstwhile State of Madhya Pradesh is to be treated as the First Register for newly formed State of Chhattisgarh and State of Madhya Pradesh.

b. The First Register as prepared by the erstwhile State of

Madhya Pradesh is to be bifurcated based on the territorial nexus with the residential address as provided by the pharmacists at the time of registration. c. Those pharmacists who are registered in the First Register

of the erstwhile State of Madhya Pradesh, before the enforcement of Education Regulation made by the Central Pharmacy Council, and who do not wish to practice in the State in which their residential address falls are at liberty to register themselves in the other State in accordance Page 51 of 53

with Section 32 (2) of the Pharmacy Act. Here we make it clear that such of those pharmacists whose names were registered in the First Register prepared by the erstwhile State of Madhya Pradesh, need to formally seek registration under Section 32(2) of the Act in the State of Chhattisgarh and there need not satisfy the qualification prescribed by the Education Regulation.

Illustration No.1- If ‘A’ has his name registered in the First Register of erstwhile State of Madhya Pradesh. He is at lib- erty to get his name registered in the State of Chhattisgarh as per Section 32 (2) of the Act. Further ‘A’ need not fulfill the qualification as prescribed under the Education Regula- tion.

d. The constitution of the Registration Tribunal by the State of Chhattisgarh and consequent registrations carried out by the aforesaid Registration Tribunal are invalid and illegal.

12. Accordingly this appeal is disposed of in terms of above

directions. There shall be no order as to costs.

…………………………….CJI (JAGDISH SINGH KHEHAR)

…………………………….J. (N V RAMANA)

…………………………….J. (DR. D Y CHANDRACHUD)

NEW DELHI, JULY 3, 2017 Page 52 of 53

ITEM No. 1501,1502 Court No. 10 SECTION XVII,IVA (For Judgment)

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

CIVIL APPEAL NO. 8121 OF 2004

RANJAN SINHA Appellant(s)

VERSUS

AJAY KUMAR VISHWAKARMA Respondent(s)

WITH

CIVIL APPEAL NO. 8382 OF 2017 @ SLP (C) No. 1963 of 2006

Date : 03.07.2017 These matters were called on for pronouncement of judgment today.

For Appellant(s) Mr. A.Mariarputham, Sr. Adv.

Ms. Aruna Mathur, Adv.

Ms. Anuradha Arputham, Adv.

M/s. Arputham Aruna & CO.

Ms. Bina Gupta, Adv.

For Respondent(s) Mr. B.K.Satija, Adv.

Mr. Mishra Saurabh, Adv.

Mr. Aniruddha P.Mayee, Adv.

Mr. Varinder Kumar Sharma, Adv.

Mr. Ratan Kumar Choudhari, Adv.

Mr. C.D.Singh, Adv.

Hon'ble Mr. Justice N.V.Ramana pronounced the judgment of the Bench comprising Hon'ble the Chief Justice, His Lordship and Hon'ble Dr. Justice D.Y.Chandrachud.

Page 53 of 53

The appeals are disposed of in terms of the signed reportable judgments. There shall be no order as to costs.

(Shashi Sareen) (S.S.R.Krishna) AR-cum-PS Assistant Registrar

(TWO SEPARATE SIGNED REPORTABLE JUDGMENTS ARE PLACED ON THE FILE)