Delhi HC quashes PCI moratorium on opening of new pharmacy colleges in India

The moratorium did not apply to government institutions, the North Eastern region and such states or union territories where the number of pharma institutions is less than 50.

Justice Prateek Jalan said that the court does not find any clear power to be conferred by the Pharmacy Act upon the PCI to impose the moratorium by way of a policy decision. The bench also said that the right to establish an educational institution has been held by the Supreme Court to be a fundamental right under Article (19)(g) of the Constitution.

“The exercise of executive authority by the PCI is in excess of its powers, the impugned decisions cannot be sustained,” said the court, while allowing a batch of 88 writ petitions.

In July 2019, the Central Council of PCI had expressed concern about the mushrooming of pharmacy colleges in India and announced the moratorium. In 2019, there were more than 1,985 D Pharma and 1,439 B Pharma institutes in India with an annual intake of 2,19,279.

The PCI decision was challenged by those desirous of establishing pharmacy colleges in India. They had procured land and physical infrastructure for establishing the institutes but could not submit their applications for approval from PCI due to the moratorium. It was argued before the court that the decision does not satisfy the test of reasonableness and proportionality.

The PCI had argued that the moratorium is in the nature of temporary suspension and that its actions were motivated by “its responsibility to regulate the standard of education and the conduct of the profession”.

Justice Jalan in the verdict observed that the regulatory decisions, which have far-reaching consequences upon the citizens, require scientific and supporting data. “The expectation is not of comprehensive or granular empirical data in every case but of material which can demonstrate the reasonableness of the assumptions made and the decision taken,” said the court.

The court also said that the PCI has justified the moratorium on the ground of vacancy in pharmacy colleges but its communication dated September 26, 2019 contemplates an addition of two lakh pharmacists to the workforce everywhere.

“There is prima facie an inconsistency in these considerations, to the extent that it is unclear whether such an addition would occur despite the vacancies in the pharmacy colleges. Similarly, despite the grounds used to justify the moratorium, the PCI has, in fact, granted permission for addition of 34,800 seats on exempted institutions in the year 2020-21,” read the verdict.

The exemptions granted by the PCI are also by their very nature antithetical to the objectives of the moratorium, the court further said.

“In the present case, for example, the exemption granted to the States with less than 50 pharmacy colleges is independent of the size of the State. Consequently, it bears no correlation to the pharmacist-to-population ratio prevailing in the State, or to any other metric which has been used to justify the moratorium in the first place. Similarly, the exemptions granted to existing institutions for increase in number of seats is also unsupported by any material on record,” it said.