Delhi High Court Refuses Interim Relief on Case Against Moratorium on Setting Up of New Pharmacy Colleges

The petitioners sought interim relief in the form of permission to set up new pharmacy colleges to take in admissions for the academic year 2020-21.

A single judge bench of Justice Prateek Jalan hearing the petition, said that it was not inclined to grant any interim relief to the various pharmacy colleges approaching it, at this stage and adjourned the matter for further hearing for Jan 25. The moratorium was imposed by the council on the rationale that the supply of graduating 'pharmacists' is much higher than the demand for the same, and does not apply to government institutions.

Challenging the moratorium, the counsel for the petitioners, Sr. Adv. Sanjay Sharawat stated that, "No study was conducted before taking such a decision and that even despite the moratorium the admitted seat intake for 2019-20 was 34,800."

He elaborated that, "They merely state that the current pharmacist to population ratio in India is 1.61 per 1000, whereas the global average is .6 per 1000 and in developed countries it's 1 per 1000." His argument was that there is nothing wrong in exceeding the average global ratio, and that this mere fact cannot be the rationale behind the moratorium.

Relying on the decision of the Supreme Court in Shayara Bano v. Union of India and Ors (2017) 9 SCC 1(Ref: Para 101 of (2017) 9 SCC 1) wherein it was held that the test of manifest arbitrariness would apply to invalidate legislation as well as subordinate legislation under Article 14 of the Constitution of India, and that any legislation or subordinate legislation which is excessive and disproportionate would be manifestly arbitrary, the petitioners submitted that the moratorium was "capricious, illogical, discriminatory and hence violative of Article 14 of the Constitution of India."

They argued that, there was no logic in fixing the maximum number of pharmacy education imparting institutions in any state as 50 despite varying populations of states, and that no rationale had been provided for distinction between private and government institutions qua the moratorium.

They also said that if the objective was indeed as claimed by the Council, then allowing government institutions militates against this objective. It was also highlighted that the moratorium does not apply to existing institutions applying for increase in intake and for additional courses and that this was also illegal, irrational, and contrary to the objective sought to be achieved by the policy.

The petitioners also argued that the impugned circulars fail the test of "overbreadth" and had the effect of casting a "wide net" as it was overinclusive to the extent that it imposed moratorium for 5 years even in States in which the pharmacist to population ratio was not adequate.

They have also submitted that the Pharmacy Act, 1948 read with the Regulations does not vest any power to the Council to prohibit institutions from submitting applications for seeking approval for the concerned courses.