PAWAN KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) By this order, we propose to decide two writ petitions i.e. Civil Writ Petition Nos. 2079 of 1996 (Pawan Kumar and others v. Union of India and others) and 8395 of 1996 (M/s. Rama Medical Store, Rajpura and others v. Union of India and others) as common questions of facts and law are involved. The facts are being taken from Civil Writ Petition No. 2079 of 1996. Petitioners, who are running chemist shops, have approached this Court, praying for quashing of clause 15(ii)(c) of Rule 65 of the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as "1945 Rules") being violative of Articles 14 and 19(1)(g) of the Constitution of India. Challenge has also been posed to the cut off date i.e. 31.12.1969 fixed as per Rule 65(15)(ii)(c), which states that person with four years practical experience of dispensing, which in the opinion of the licensing authority is adequate and has been approved by that authority to be a qualified person. Reliance has also been placed on a judgement of the Division Bench of Allahabad High Court reported as M/s. J. Dass Brothers v. Union of India and others,1992 1 EFR 606.

(2.) Petitioners assert that they have more than four years experience of running the chemist shops and have been issued licence under Rule 65 of 1945 Rules for selling retail drugs and medicines under the Drugs and Cosmetics Act, 1940. As per terms of Rule 61 of 1945 Rules, the licence is required from the Licensing Authority i.e. Civil Surgeon in the area of operation for every druggist and chemist for retail or wholesale without which he is not allowed to sell the drugs and medicines. Further as per Clause 15(ii) to Rule 65 of 1945 Rules, qualifications of a person have been prescribed, as per which every druggist and chemist is required to have a qualified person/registered pharmacist, who holds a degree or diploma in pharmacy or pharmaceutical chemistry of an Institute approved by the Licensing Authority or is a registered pharmacist as is defined in the Pharmacy Act, 1948. It further provides that a person having four years practical experience of dispensing, which in the opinion of the licensing authority is adequate and has been approved by the authority as a qualified person on or before 31.12.1969, shall be treated as a qualified person. The licence granted for a period of three years is renewable after the expiry of same.

(3.) Petitioners have impugned Clause (c) of sub rule (15) of Rule 65, whereby condition has been imposed upon the retailers/wholesale dealers in drugs mandating a qualified person as a requirement for running the shop, assailing it to be a superfluous condition with no nexus to be achieved for the object of issuing the licence under Rule 65 of 1945 Rules. This rule has been challenged on the ground that this is violative of Articles 14 and 19(1)(c) of the Constitution of India as the same is discriminatory and is an unreasonable restriction imposed upon the licence holders, restricting them to carry out their occupation, trade and business, which restriction is unreasonable, unwarranted and unqualified.