Judgment · High Court · 2012

The writ petitioner is a registered Association and they have ta ken the cause of 16 (sixteen) pharmacists, who are members of the Association by way of filing this writ petition. The petitioners are essentially challenging c ertain orders in the nature of notices dated 21.11.2011, 22.11.2011 and 23.11.20 11, whereby the registrations of 16 (sixteen) pharmacists have been removed from the Register as provided under Section 36 of The Pharmacy Act, 1948 (hereinafte r, referred to as ’The Act’). Simultaneously, pharmacists have also been given n otices to submit certain documents within 30 days, failing which, their names sh all be finally deleted from the Register of the Assam Pharmacy Council (hereinaf ter, referred to as ’The Council’).

#2. Heard Sri D Das, learned Senior Counsel for the petitioners, ass isted by Sri I Lahiri, learned Advocate. The respondent Nos. 2 to 7 were represe nted by Sri D Saikia, learned Additional Advocate General, Assam. The Union of I ndia (respondent No. 1) was not represented by any counsel.

#3. The learned counsel for the petitioners submitted that their mem bers are duly enrolled and registered since a long time in the Council and their registrations have been renewed regularly. It is the further case of the petiti oners that though the pharmacists possessed the requisite qualifications to cont inue as pharmacists their names have been removed from the Register without pass ing any speaking order or affording any opportunity of hearing, as provided unde r Section 36 of the Act.

#4. On the other hand, the learned Additional Advocate General raise d a preliminary objection about the maintainability of the appeal. According to the learned Additional Advocate General, the Association is not competent to tak e the cause of only 16 pharmacists, more particularly, for seeking a writ in the nature of certiorari. Referring to a judgment of the Hon’ble Supreme Court, ren dered in the case of Jasbhai Motibhai Desai -Vs- Roshan Kumar, Haji Bashir Ahmed ; (1976) 1 SCC 671, the learned Additional Advocate General contended that the p etitioners are the strangers to the issue and they have no locus standi to chall enge the impugned notices, which were issued to specific number of pharmacists.

#5. With regard to the legality of the impugned notices, the learned Additional Advocate General submitted that the action has been taken after publ ishing a general notice in the newspaper and as such, it cannot be said that the notices have been issued without following due process of law. The learned coun sel also submitted that having received a complaint that a large number of perso ns are performing the duties of pharmacists on the basis of fake documents and a lso without possessing requisite qualification, as provided under Section 31 of the Act. In support of this submission, the learned counsel also drawn my attent ion to the certificates which are being possessed by the 16 pharmacists, annexed to the rejoinder affidavit of the petitioners.

#6. With regard to the question of locus standi, there can be no dis pute that a stranger cannot be allowed to file a writ petition, more particularl y, in a writ petition where a relief for issuing a writ of certiorari has to be issued. I also agree with the learned Additional Advocate General that it would have been proper for the pharmacists to file separate writ petitions since the c ase of each pharmacist would be on different footing. However, I am not persuade d to dismiss the present writ petition on the sole ground that the Association i s taking up the cause of the pharmacists regularly since a long time. The latest writ petition was filed by them in the year 2011, being WP(C) No. 473 of 2011. According to the learned Additional Advocate General, in the earlier writ petiti on the objection regarding maintainability was not raised since a general notice was challenged by the Association, whereas, in the present case, only 16 pharma cists are aggrieved by the impugned notices. Be that as it may, the issue of loc us standi is left open. I have already indicated supra that it would have been p roper for the pharmacists to file separate writ petitions. However, since the la nguage of the impugned notices are identical and stereo-typed notices have been issued, I am not dismissing the writ petition on the technical objection of locu s standi. To answer the question as to whether the respondents have violat 7. ed the principles of natural justice as well as the mandatory requirement of hea ring, as provided under Section 36 of the Act, it would be just and proper to re produce the contents of the impugned notice, which is as below: (cid:29)The first General Meeting of the Assam Pharmacy Council, Constituted by the Gov t. of Assam, held on 5th of November 2011. Your application for renewal of your registration placed before the meeting. The meeting decided to remove your name from the register of A.P.C. U/S 36 of the Pharmacy Act, 1948. For consideration of restoration of your name U/S 37 of the Pharmacy Act, 1948, you are asked to submit the followings within 30 (Thirty) days from the date of issue of this notice, failing which, your name will be deleted from the register of Assam Pharmacy Council and action will be taken as per provision of the Phar macy Act, 1948. (cid:29)

#8. In the writ petition, it has been stated that some of the licenc es were renewed only on 04.11.2011 and the Council had taken the decision to rem ove their names from the Register on the very next day, i.e., on 05.11.2011. Bes ides this, the decision of removing the names of 16 pharmacists, involved in thi s writ petition, was taken without issuing any show-cause notice or giving any o pportunity of hearing as mandated under Section 36 of the Act.

#9. In view of the above, the impugned notices are hereby set aside. The Assam Pharmacy Council/ respondents are directed to give the opportunity of personal hearing to the pharmacists and then pass reasoned order(s). Since both the parties are before the Court, I am of the view th 10. at formal notices, as envisaged under Section 36 of the Act, can be dispensed wi th. In other words, the affected pharmacists are directed to appear before the A ssam Pharmacy Council, on 30th of April 2012, with all documents to substantiate their eligibility to work as pharmacists.

#11. d of. With the aforesaid directions, this writ petition stands dispose