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TMI Blog2017 (7) TMI 1310X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Bihar, State Pharmacy Council, under the Chapter III was established on 07.02.1955 and consequently First Register of pharmacists, Under Section 30 of the Act, was duly prepared. In the meanwhile, the Education Regulations framed by Pharmacy Council of India Under Section 10 of the Act came into force with effect from 07.02.1958. It may be mentioned that after Education Regulations came into force, only such persons with qualifications as per those Regulations can be entered in the Register of Pharmacists. 3. After the bifurcation, Jharkhand constituted Registration Tribunal Under Section 30 of the Act on 12.11.2001. The said Tribunal published the following notification on 14.01.2002 inviting applications for registration of pharmacists in the State of Jharkhand. HINDUSTAN Published from Ranchi, Patna, Delhi and Lucknow Ranchi, Monday 14th January 2002 GOVERNMENT of JHARKHAND Health, Medical Education and Family Welfare Department (Medical Education and Research) PRESS NOTIFICATION As per notification No. 40(i) of the Health, Medical Education and Family Welfare Department dated 10.01.2002 all persons having qualification Under Section 31 of the Pharmacy Act 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in terms of Section 31. The State Pharmacy Council also took a similar plea. It is a matter of record that out of 10950 applications received pursuant to 14.01.2002 notification, a large number of them i.e., 8940 persons did not have the degree or diploma in pharmacy. But all of them sought registration relying on Section 31(d) of the Act. 6. A division bench of the High Court of Jharkhand on elaborate consideration of applicable provisions of the Act and BROA came to the conclusion that Education Regulations, applicable to the erstwhile Bihar, are law for the new State of Jharkhand in terms of Sections 84 and 85 of the BROA and therefore unless a person is qualified as per Education Regulations, cannot get himself registered. It was observed as under- What is contended on behalf of the Petitioners is that the Pharmacy Act was extended to the State of Bihar had notified and adopted the Education Regulations issued Under Section 10 of the Act which was in Part II of the Act, that both the Act and the Education Regulations hence constitute law for the purpose of the State of Jharkhand carved out of the modification of either the Education Regulations or the Pharmacy Act by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Register for the State of Bihar including the territories forming the State of Jharkhand in terms of Section 3 of the State of Bihar Reorganization Act. Those who are included in the First Register and who are practicing their profession within the territories newly forming the Jharkhand, would continue to have the right to practice their profession in the newly created State of Jharkhand. The first register for State of Jharkhand would be of those persons who are already in the register prepared for the undivided State of Bihar based on their territorial loyalty or the situs of their practice. There will therefore be no need for preparing the First register all over again as urged by the counsel for the State of Bihar and the tribunal constituted Under Section 13 of the Act. The First register for the State of Jharkhand is the register already prepared for the undivided Bihar including all those who are now of State of Jharkhand or are practicing their profession in the territories of the State of Jharkhand. What would arise would only be the inclusion of further names of qualified persons, if they possess the requisite qualification under the Education Regulations and in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is a new State, or affect its rights and obligations Under Section 30. d. The obligation to prepare the first register and the right to do so by the new State of Jharkhand is clear and protected by Section 30. e. A view that it is not desirable to include in the First Register, all the persons mentioned in Section 31 of the Act as eligible to be included in the first register, cannot be a factor or consideration in interpreting Section 30. Section 30 has to be interpreted on its own terms and since the language is clear, has to be given effect to, as it is. f. In any event, a subordinate legislation like Education Regulations, cannot be invoked to interpret Section 30 or whittle down rights, obligations and entitlements Under Section 30. Sections 30 and 31 together are a complete code for preparing the First Register. In this context, Education Regulations cannot be factored in for the purposes of interpretation, which is relevant only for Section 32 i.e. subsequent inclusions in the Register. g. There is nothing in Sections 84 and 85 of the Bihar Reorganisation Act which militate against Sections 30 and 31 of the Pharmacy Act. They are general provisions to deal with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troduced by Act 24 of 1959 sec. 2 (w.e.f. 1-5-1960). Although it was argued that the bifurcation of Jharkhand took effect after 1956 therefore, the proviso to Sub-section (3) of Section 1 is squarely applicable to Jharkhand, such arguments are clearly erroneous as it is apparent from the plain reading of the proviso itself. The application of the proviso was a onetime measure which was only applicable to the States Re-organization of States in 1956 as on 1st of November, 1956 and the application of this proviso cannot be extended beyond 01.11.1956 by way of interpretation of BROA. 15. At this stage, it would be apt to refer to two definitions relevant for resolution of the dispute in this case. As per Section 2(h) "register" means a register of pharmacists prepared and maintained under Chapter IV. This definition was introduced by Act 70 of 1976, sec. 2, for clauses (h), (i) and (j) (w.e.f. 1-9-1976) The term register connotes that both First Register as well as subsequent register. Further, as per Section 2(i), "registered pharmacist" means a person whose name is for the time being entered in the register of the State in which he is for the time being residing or carrying on his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) The Registration Tribunal shall examine every application received on or before the appointed date, and if it is satisfied that the applicant is qualified for registration Under Section 31, shall direct the entry of the name of the applicant on the register. (4) The first register so prepared shall thereafter be published in such manner as the State Government may direct, and any person aggrieved by a decision of the Registration Tribunal expressed or implied in the register as so published may, within sixty days from the date of such publication, appeal to an authority appointed by the State Government in this behalf by notification in the Official Gazette. (5) The Registrar shall amend the register in accordance with the decisions of the authority appointed under Sub-section (4) and shall thereupon issue to every person whose name is entered in the register a certificate of registration in the prescribed form. 31. Qualifications for entry on first register- Substitute by by Act 24 of 1959. sec. 9, for "A person shall be entitled" (w.e.f. 1-5-1960). A person who has attained the age of eighteen years shall be entitled on payment of the prescribed fee to have his name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny law to the Bihar shall be construed, as meaning, the territories within the existing territories of Bihar before the appointed day. All the laws which are referred to in Section 84 of the BROA would continue to have effect unless they are modified by way of repeal or amendment by the appropriate Government i.e., Central or State Government, as the case may be. 20. Further the term 'law' is defined in Section 2(f) of BROA includes any enactment, ordinance, Regulation, order, bye-law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the existing Bihar. Therefore, all the laws immediately in force before the appointed date in the erstwhile Bihar shall be deemed to be applicable to the territories of Jharkhand and the territories of Bihar for the purpose of applicability of laws shall be deemed to be part of territories of erstwhile State of Bihar before the appointed date. 21. Reverting to the Act, from reading of Sections 31 and 32, it is very clear that the qualifications prescribed for entering the name of the pharmacists in the First Register is different from the qualification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst Register prepared and published shall be a permanent register in relation to all pharmacists in the State of Bihar. The same shall be given custody to the State Council constituted under the Section 19. A reading of Sub-section (4) and (5) of Section 30 would show that an authority appointed by the State Government to hear appeals in relations to First Register, shall decide the question of entering a new name in the register or amending the same. Such facility is available after the date appointed under Sub-section (2) of Section 30 and before the enforcement of Education Regulations made by the Pharmacy Council of India. 24. There is no dispute that the First Register for the erstwhile Bihar after following the procedure contemplated Under Section 30 of the Act. There is no doubt that as directed by the State Government it was duly published. Thus, there was a Statutory notification under the Section 30(4) publishing the First Register of Pharmacists for the Bihar. What is the effect of such published First Register after the re-organization of the State in 2000? 25. The Article 3 of the Constitution inter alia, empowers the Parliament by law to form a new State by separat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of laws.- The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Bombay shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. 88.Power to adapt laws.- For the purpose of facilitating the application in relation to the State of Maharashtra or Gujarat of any law made before the appointed day, the appropriate Government may, before the expiration of one year from that day, by order, made such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority., The Punjab Re-organization Act of 1966, The Punjab Re-organization Act of 1966, Act XXXI of 1966. 88. Territorial extent of laws.- The provisions of Part II shall not be deemed to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the territories to which the Uttar Pradesh Imposition of Ceiling of Land Holding Act, 1961 and any other law in force immediately before the appointed day, extends or applies, and territorial references in any such law to the State of Uttar Pradesh shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing State of Uttar Pradesh before the appointed day. 87. Power to adapt laws.- For the purpose of facilitating the application in relation to the State of Uttar Pradesh or Uttaranchal of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, y order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repeated or amended by a competent Legislature or other competent authority. and Andhra Pradesh Re-organization Act of 2014 12Andhra Pradesh Re-organization Act of 2014, Act No. VI of 2014. 100. Territorial Extent of laws- The provisions of Part I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriate Government" means as respects any law relating to a matter enumerated in the Union List, the Central Government, and as respects any other law in its application to a State, the State Government. 28. A plain reading of Section 84 reveals the following. The provisions of Part II dealing with the reorganization of erstwhile Bihar into the existing Bihar and Jharkhand shall not be deemed to have effected any change in the territories to which any law in force before the appointed day extends or applies. Any territorial references to any law shall until provided by the competent legislature be construed as meaning the territories within the existing State of Bihar before the appointed day, when existing Bihar stood re-organized. 29. The Section 84 contains two legal fictions first is that the reorganization of the Bihar would not affect the applicability of laws made by the State of Bihar to all territories included in it before reorganization and after the re-organization. In other words, a law made by Bihar shall be applicable to all the territories of erstwhile State of Bihar including the territories of State of Jharkhand even after reorganization. The Second fiction is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government of the erstwhile State of Pun jab until the Governments of the Successor States modified or changed it? Or is it, as a matter of law and propriety, reasonable to think that the Legislature did not consider it necessary at all to make such an ex press provision, as the continuance of the effect of such orders was so obvious even without such a provision? In our judgment when there is no change of sovereignty and it is merely an adjustment of territories by the reorganization of a particular State, the administrative orders made by the Government of the erstwhile State continue to be in force and effective and binding on the successor States until and unless they are modified, changed or repudiated by; the Governments of the successor States. No other view is possible to be taken. The other view will merely bring about chaos in the administration of the new States. We find no principle in support of the stand that administrative orders made by the Government of the erstwhile State automatically lapsed and were rendered ineffective on the coming into existence of the new successor States. 31. In Sher Singh v. Financial Commissioner of Planning, Punjab (1987) 2 SCC 439, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to conclude that benefits under Punjab Government National Emergency (Concession) Rules, 1965 needs to be extended and reasoned as under- 4. In the context of applicability of an administrative order of the Government of State of Punjab issued prior to 1.11.1966 it was held by this Court in State of Punjab and Ors. v. Balbir Singh and Ors. that by virtue of Section 88 of the Punjab Reorganisation Act, 1966, an administrative order made by the erstwhile State did not automatically lapse and continued to be in force, effective and binding on the successor State unless modified and repudiated. There can be no doubt that The Punjab Government National Emergency (Concession) Rules, 1965 which fall within the definition of "law" in Section 2(g) of the Punjab Reorganisation Act, 1966 continued in force and were effective in the Union Territory of Chandigarh until and unless modified, changed or repudiated by the Union Territory Administration. The question, therefore, is whether there was any modification, change or repudiation of the said 1965 Rules by the Union Territory administration after 1.11.1966? It may be mentioned that the Punjab Recruitment of Ex-servicemen Rules, 1982 repeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e language in these Sections is clear and unambiguous. These Sections provide that the laws which were applicable to the undivided State of Bihar would continue to apply to the new States created by the Act. The laws that operated continue to operate notwithstanding the bifurcation of the erstwhile State of Bihar and creation of the new Jharkhand. They continue in force until and unless altered, repealed or amended.... By virtue of Section 84. the territorial references in any such law (which includes the notification in question), to the State of Bihar shall be construed as meaning the territories within the existing State of Bihar before the appointed day, until otherwise provided by a competent Legislature or other competent authority. A conjoint reading of both these provisions makes it abundantly clear that the territorial references in any law in force immediately before the appointed day must be construed as meaning the territories within the existing State of Bihar before the appointed day. To facilitate their application in respect of the State of Bihar or Jharkhand, the appropriate Government may, before the expiration of two years from that day, by order, make such adapt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... newly created State would be rendered a State without laws. To avoid such situation, provisions like Sections 84 and 85 of BROA have been enacted to maintain continuity, and at the same time authorizing the States to make such modifications and adaptations as are considered necessary by mere issuance of orders within two years, and thereafter by legislation. 37. As defined earlier 'law' includes 'other instruments having the force of law'. In view of use of the word 'includes', the definition of 'law' Under Section 2(f) shall be interpreted exhaustively. In view of the above discussion, we hold that the First Register prepared by the Bihar has the force of law Under Section 2(f) of the BROA. 38. In view of the above, we may conclude that when the First Register of Pharmacists prepared by the Registration Tribunal was published by the Government of Bihar under Sub-section (4) of Section 30, the same is conclusive and any amendments by way of inclusions can be carried out till the framing of the Education Regulations by the Pharmacy Council of India. For doing this the competent authority may take into consideration the qualifications as prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Inter-State Corporation Act, 1957, comes into force, the Maharashtra State Pharmacy Council shall, notwithstanding anything contained in Sections 30, 31 and 32. prepare and maintain thereafter a register of the pharmacists for the State of Maharashtra. The register shall include the name of -- (a) All pharmacists included in the register of pharmacists for the former State of Bombay duly prepared and maintained Under Section 29 whose residential addresses as shown therein on the aforesaid date do not fall in the territories of the State of Gujarat or in the area of the former State of Bombay transferred to the State of Mysore or Rajasthan on the 1st November, 1956, and in the register for the former State of Madhya Pradesh prepared and maintained likewise, whose residential addresses as shown therein on the aforesaid date fall in the territories of the State of Maharashtra: Provided that, the names of the pharmacists in the register of pharmacists for the former State of Madhya Pradesh shall not be included in the register for the State of Maharashtra until the Maharashtra State Pharmacy Council starts functioning and operating in the Vidarbha region of this State of Maharas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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