Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16521 of 2011 ====================================================== Jitendra Kumar Son Of Late Ramanand Sharma Resident Of Mohalla- Sultanganj, P.S.- Sultanganj, District- Patna .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary, Department Of Health, Govt. Of Bihar, Patna 2. The Principal Secretary, Department Of Helath. Govt. Of Bihar, Patna 3. The Joint Secretary To The State Govt., Department Of Health, Govt. Of Bihar, Patna 4. Under Secretary To The Government Of Bihar, Department Of Health, Patna 5. The Director In-Chief, Helath Services, Govt. Of Bihar, Patna 6. Pharmacy Council Of India Through The President Combined Council Building, Kotla Road, Aiwan-E--Ghalib Marg, New Delhi-110002 7. Bihar State Pharmacy Council. B.M. Das Road, Patna Through Its Registrar 8. Kumar Ajay Son Of Shri Uma Shankar Singh At + P.O- Ramgarh, District- Kaimur (Bhabhua) 9. Nabin Kumar Son Of Shei Niwas Prasad Village- Murtazpur, P.S. Belchhi, District- Patna .... .... Respondent/s : Mr. Shyam Kishor Sharma Ga3 ====================================================== Appearance : For the Petitioner/s : Mr. Bipin Kumar For the State For Respondent: For the Pharmacy Council: Mr. S. D. Sanjay, Advocate For Respondent No. 8: ====================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI ORAL ORDER Mr. Mrudaychand Prasad, Advocate Mr. Abhay Kumar Singh 10. 28.06.2013 The dispute has started after the Private- *************** Respondent No. 8 was nominated by the State Government as a Member of Central Pharmacy Council. This nomination has been made under the purported power vested in the State Government under section 3, sub-clause H of the Pharmacy Act, 1948. Nomination of the private-respondent has been made by the State Government under the said provision. The relevant provision reads as under section 3 (h):
Legal Reasoning
Patna High Court CWJC No.16521 of 2011 (10) dt.28-06-2013 2/6 “3 (h) one member to represent each State nominated by the State Government who shall be a registered pharmacist.” One thing which is glaring on a plain reading of the provision is that it is unbridled power, which has been vested in the State Government. The said section has absolutely no guidelines as to under what parameters a person is going to represent the State as its nominee or on what parameters such a decision is required to be made. In absence of any guidelines the allegation of subjectivity cannot be overlooked. Any appointment or nomination in the public domain has to have some element of objectivity or parameters which unfortunately seems to be lacking in such a provision. However, since that is not the subject matter or line of challenge in the present writ application, the Court would not like to dwell or delve into this aspect any further. Petitioner assails the nomination of the private- respondent on the sole ground that the State Government despite over-bearing evidence being
Legal Reasoning
available of wrong doing by one Shri Nabin Kumar who proclaimed himself to be the Registrar of the State Pharmacy Council against whom even an F.I.R. was lodged by the State authority for illegal acts and conduct had enrolled the private-respondent as a Pharmacist, Patna High Court CWJC No.16521 of 2011 (10) dt.28-06-2013 3/6 without the power vested in him. The sole question which is required to be answered, therefore, is whether the private-respondent has been validly enrolled as a Pharmacist, which is a pre-condition under section 3 H of the Act, to become eligible for nomination as a member of the Central Pharmacy Council. Too many pleadings, too many evidences and too many exchanges of supplementary affidavits have taken place in the present case. After having gone through the same, there is adequate material to show that all is not well in the manner in which the Bihar unit of the Pharmacy Council is being run or is being grabbed by certain vested interest and is being run as a private enterprise rather than as a statutory body, fulfilling the objectivity of the Act. The period under which Mr. Nabin Kumar claimed himself to be Registrar / Secretary of the organization is a period of dispute. The State Government, in fact, in the above background it never recognized anybody to be a validly notified Registrar of Bihar Pharmacy Council. In fact to stem the rot and to check the on going fights between various factions, State Government did nominate one of its functionaries of the State Patna High Court CWJC No.16521 of 2011 (10) dt.28-06-2013 4/6 Department to work as a Registrar by notification dated 10.12.2009. No doubt, the notification was set aside by a learned Single Judge on 29.01.2010, but it does not mean that the requirement of a notification declaring a person to act as a Registrar was not needed. Right through the argument the Court has not been shown any notification which may satisfy the query raised in the very beginning whether the person who had enrolled the private-respondent was ever recognized as a Registrar or notified as a Registrar. There is no notification, on which there cannot be a dispute. There is some kind of a resolution which was put together by the so called state unit which is being used to show that the said Nabin Kumar was appointed to act as a Registrar / Secretary of the organization as a stop-gap arrangement. The Court is constrained to record that even a stop-gap arrangement is required to be ratified / approved or notified by the State Government. It is not a unilateral arrangement which a Pharmacy Council can take, because there are certain checks and balances which are available in the Act of 1948 and those requirements are required to be followed. Since there is a serious dispute that Nabin Kumar Patna High Court CWJC No.16521 of 2011 (10) dt.28-06-2013 5/6 was not the Registrar after 07.03.2008 till the time when the enrolment of private-respondent was made or any time thereafter then enrollment under the pen of Nabin Kumar is of no avail. No person or authority which does not have the requisite power vested in him to act as a designated authority, can never act and any act done by him can never be accepted to be a valid act, carried out by such a person. Since it is the State Government which has also filed affidavit in opposition to the condutc of Mr. Nabin Kumar and materials has been brought on record to show in the manner in which he proclaimed himself to be the Registrar, which was also the reason for the State Government to take action against him including filing of an FIR. They have an obligation now to reexamine whether a person like the private-respondent can be nominated as a member of the Central Pharmacy Council in the very first place, especially when they themselves are doubting and challenging the registration done by Nabin Kumar acting as a Registrar at the relevant time. These are matters for which introspection is required to be done by the State Government. It is time for them to take remedial steps and redeem the situation on an enquiry to be conducted by them. Patna High Court CWJC No.16521 of 2011 (10) dt.28-06-2013 6/6 The Writ application is disposed off with a direction upon the Principal Secretary, Health, Government of Bihar that in the event of a production or communication of a copy of this Order he will hear the disputing parties, verify the official records with regard to the status and validity of the enrolment of the private- respondent by Shri Nabin Kumar and thereafter pass appropriate order indicating whether the private- respondent can continue to represent the State of Bihar in the Central Council or something else is required to be done. The Court directs the Principal Secretary to complete the exercise preferably within a period of eight weeks from the date of production / communication of a copy of this Order. Parties are free to represent themselves before the Principal Secretary, if they want to do so to place their side of the case before passing of the said order. SKM/- (Ajay Kumar Tripathi, J.)