*THE HON’BLE Ms. JUSTICE G. ROHINI + WRIT PETITION No.13458 OF 2009 % 06/10/2009 # Vadde Venkata Rao … Petitioner Vs. $ 1. Government of Andhra Pradesh, rep. By its Secretary (Medical & Health), Secretariat, Hyderabad., and 6 others. …Respondents < Gist > Head Note: ! Counsel for the petitioner : Sri K. V. Bhanuprasad ^ Counsel for the respondents: Govt. and Family Welfare Pleader for Medical, Health Sri K. Gani Reddy Cases referred : - NIL - THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.13458 OF 2009 ORDER: The petitioner herein claims to be the president of Krishna District Chemist and Druggist Association. This Writ petition is filed seeking a declaration that the nomination of the respondents 3 to 7 herein as members of the A.P. Pharmacy Council as arbitrary and illegal. The Pharmacy Act, 1948 (for short, ‘the Act’) has been enacted for regulation of the profession and practice of pharmacy and constitution of Pharmacy Councils for the said purpose. As per Section 19 of the Act the State Government shall constitute a State Council of Pharmacy consisting of six (6) elected members from the registered pharmacists of the State, five (5) members nominated by the State Government apart from ex officio members. As per Section 25 of the Act a nominated or elected member shall hold office for a term of five years from the date of nomination or election or until his successor has been duly nominated or elected whichever is longer. Section 24 of the Act provides that the elections to the State Councils shall be conducted in the prescribed manner and where any dispute arises regarding any such election it shall be referred to the State Government whose decision shall be final. It is not in dispute that the last election to the A.P. Pharmacy Council was held in the year 2003 and six (6) members were elected as members of the A.P. Pharmacy Council under Section 19 (a) of the Act. Thereafter, G.O.Ms.No.643, Health, Medical & Family Welfare (K1) Department, dated 7.11.2003 was issued constituting the A.P. Pharmacy Council under Section 19 of the Act with the six (6) elected members under Section 19 (a), five (5) nominated members under Section 19 (b), and two (2) ex-officio members under Section 19 (d) & (dd) of the Act. On 17.03.2009 the 2nd respondent – A.P. Pharmacy Council – addressed a letter to the 1st respondent – State Government - to issue orders appointing the Returning Officer for conducting election of six (6) members to the Council under Section 19 (a) of the Act. Admittedly, steps are yet to be taken for electing the six (6) members as provided under Section 19 (a) of the Act. In the meanwhile, the impugned notification G.O.Ms.No.135, Health, Medical & Family Welfare (L2) Department, dated 30.06.2009 has been issued nominating the respondents 3 to 7 herein as members of the A.P. Pharmacy Council in exercise of the powers conferred under Section 19 (b) of the Act making it clear that they shall hold office for a term of five (5) years from the date of nomination or until their successor has been duly nominated whichever is longer. The said nomination is challenged in this writ petition primarily on the ground that nomination under Section 19 (b) of the Act without electing the members under Section 19 (a) of the Act is impermissible under law. It is also alleged that the impugned nomination was not in accordance with the prescribed procedure according to which the first respondent – State Government – shall call for remarks about the candidates, whose names are under consideration, from the 2nd respondent – A.P. Pharmacy Council. It is further alleged that the respondents 3 to 7 are only manufacturers of drugs and they do not have any knowledge of the day-to-day problems of the pharmacists and as such their nomination as members of the State Council is not desirable. Thus, according to the petitioner, the impugned action of the 1st respondent amounts to arbitrary exercise of power defeating the interest of the large number of pharmacists in the State and therefore G.O.Ms.No.135, dated 30.06.2009 is liable to be set aside on that ground also. A detailed counter-affidavit has been filed on behalf of the respondents 3 to 7 denying the allegations made by the petitioner and contending that their nomination vide G.O.Ms.No.135, dated 30.06.2009 is in accordance with law. I have heard the learned counsel for both the parties. For proper appreciation of the controversy involved, it is necessary to notice Sections 19, 22 & 25 of the Act which run as under: “19 Constitution and composition of State Councils:- Except where a Joint State Council is constituted in accordance with an agreement made under section 20, the State Government shall constitute a State Council consisting of the following members, namely :- (a) six members, elected from amongst themselves by registered pharmacists of the State; (b) five members, of whom at least three shall be persons possessing a prescribed degree or diploma in pharmacy or pharmaceutical chemistry or registered pharmacists, nominated by the State Government; (c) one member elected from themselves by the members of each Medical Council or the Council of Medical Registration of the State, as the case may be; (d) the chief administrative medical officer of the State ex officio or if he is unable to attend any meeting, a person authorized by him in writing to do so; (dd) the officer-in-charge of drugs control organisation of the State under the Drugs and Cosmetics Act, 1940, ex officio or if he is unable to attend any meeting, a person authorised by him in writing to do so; (e) the Government Analyst under the Drugs and Cosmetics Act, 1940, ex officio, or where there is more than one, such one as the State Government may appoint in this behalf: Provided that where an agreement is made under clause (b) of sub-section (1) of section 20, the agreement may provide that the State Council to serve the needs of the other participating States also shall be augmented by not more than two members, of whom at least one shall at all times be a person possessing a prescribed degree or diploma in pharmacy or pharmaceutical chemistry or a registered pharmacist, nominated by the Government of each of the said other participating States, and where the agreement so provides, the composition of the State Council shall be deemed to be augmented accordingly. 22. Incorporation of State Councils:-- Every State Council shall be a body corporate by such name as may be notified by the State Government in the Official Gazette or, in the case of a Joint State Council, as may be determined in the agreement, having perpetual succession and a common seal, with power to acquire or hold property both movable and immovable and shall by the said name sue and be sued. 25. Term of office and casual vacancies:-- (1) Subject to the provisions of this section, a nominated or elected member, other than a nominated President, shall hold office for a term of five years from the date of his nomination or election or until his successor has been duly nominated or elected, whichever is longer. (2) A nominated or elected member may at any time resign his membership by writing under his hand addressed to the President, and the seat of such member shall thereupon become vacant. (3) A nominated or elected member shall be deemed to have vacated his seat if he is absent without excuse sufficient in the opinion of the State Council from three consecutive meetings of the State Council, or if he is elected under clause (a) or (c) of section 19 or Section 21, if he ceases to be a registered pharmacist or ceases to be a member of the Medical Council or Council of Medical Registration of the State, as the case may be. (4) A casual vacancy in the State Council shall be filled by fresh nomination or election, as the case may be, and the person nominated or elected to fill the vacancy shall hold office only for the remainder of the term for which the member whose place he takes was nominated or elected. (5) No act done by the State Council shall be called in question on the ground merely of the existence of any vacancy in, or any defect in the constitution of the State Council. (6) Members of the State Council shall be eligible for re-nomination or re-election.” On a plain reading of Section 19 of the Act, it is clear that the State Council of Pharmacy constituted under the said provision shall consist of both elected members and nominated members apart from the ex officio members. Section 25 (1) of the Act makes it clear that a nominated or elected member shall hold office for a term of five (5) years from the date of his nomination or election or until his successor has been duly nominated or elected whichever is longer. It is also relevant to notice that as per Section 22 of the Act the State Council of Pharmacy is a body corporate having perpetual succession and a common seal with power to acquire or hold property both movable and immovable. On a combined reading of Sections 19, 22 & 25 of the Act, it is clear that on the expiry of the term of five (5) years from the date of nomination or election, the nominated or elected member will not automatically cease to hold the office, but he shall continue until his successor has been duly nominated or elected. It is also clear that once the term of five (5) years from the date of election or nomination is over, it is for the 1st respondent to hold elections for electing the six (6) members amongst the registered pharmacists of the State under Section 19 (a) of the Act and also to nominate the five (5) members as provided under Section 19(b) of the Act. In exercise of the powers conferred under Section 46 of the Act the Government of A.P. made A.P. Pharmacy Council Rules, 1955 (for short, ‘the Rules’). Rules 3 to 15 of the said Rules have dealt with mode of election to the A.P. Pharmacy Council under Section 19 (a) of the Act. However, no such procedure has been prescribed for nomination of the members under Section 19(b) of the Act. Having regard to the unambiguous provisions of the Act and the Rules made thereunder, it is clear that the election of the members under Section 19 (a) is entirely different from the nomination of members under Section 19 (b) of the Act. No provision under the Act or the Rules made thereunder either expressly or by necessary implication provides that the election under Section 19(a) shall precede the nomination under Section 19 (b). There is not even a provision that the election and nomination of the members shall be simultaneous. The only requirement under Section 19 of the Act for valid constitution of a State Council of Pharmacy is that the same shall consist of both elected members under Section 19 (a) and nominated members under Section 19 (b) apart from the ex officio members under Section 19(d), (dd) & (e) as well as the elected member from the members of the Medical Council under Section 19 (c) of the Act. In the instant case, the members nominated under Section 19(b) of the Act in the year 2003 have admittedly completed the term of five (5) years from the date of their nomination. Hence, it is open to the 1st respondent to make a fresh nomination under Section 19(b) of the Act and the impugned G.O.Ms.No.135, dated 30.06.2009 has been validly issued in exercise of the said power. The mere fact that election of members has not been held under Section 19 (a) of the Act does not operate as a bar to exercise the said power under Section 19(b). The vague allegations made by the petitioner as to the procedure followed by the 1st respondent in nominating the respondents 3 to 7 in the absence of any material to substantiate the same cannot be accepted. There are also no allegations attributing mala fides to any of the respondents. However the learned counsel for the petitioner while placing reliance upon Rules 2 & 15 of the A.P. Pharmacy Council Rules, 1955 reiterated the contention that the election of six (6) members under Section 19(a) should precede the nomination of members under Section 19(b) of the Act. A careful reading of the said Rules shows that they exclusively deal with the mode of election of members under Section 19(a) of the Act and have nothing to do with the nomination under Section 19(b) of the Act. Hence the said contention deserves no consideration. In case there is deliberate inaction on the part of the 1st respondent to hold elections under Section 19(a) of the Act even after the expiry of the five (5) years term, it is always open to the aggrieved persons to avail the appropriate remedy as available under law. However, the nomination under Section 19(b) of the Act cannot be held to be illegal merely on the ground that no election has been held under Section 19(a) of the Act. For the aforesaid reasons, the Writ Petition is devoid of any merit and the same is hereby dismissed. No costs. ______________ G. ROHINI, J. Dt. 06.10.2009 Note:- LR copy to be marked. (B/O) gbs