[2017] 7 S.C.R. 194

RANJAN SINHA & ANR.

AJAY KUMAR.VISHWAK.ARMA & ORS.

(Civil Appeal No. 8121 of 2004)

JULY03, 2017

'•.

(JAGDISH SINGH KHEHAR, CJI, N. V. RAMANA.AND.

DR. D. Y. CHANDRACHUD, JJ.) ..

Pharmacy Act, 1948:

Object of the Act - Role of pharmacist. - Discussed - Drugs and Cosmetics Act, 1940. '. :... .. ss.31, 32 - First Register prepared by erstwhile State of Bihar is to be treated as tile First' Register for newly formed State of Jharkhand and State of Bihar..:.~The First Register as prepared by the erstwhile State of Bihar is to h~ bifarcated based on the territor_ial . nexus with the residential address as provided by the pharmacists at the time of registration - The State of Jharkhand is at liberty to · t<?ke all necessary steps to constitute a State Coum; il .:.. Those pharmacists who are registered in the. First Register of the erstwhile State of Bihar, before the enforcement of Education Regulation made E by the Central Pharmaq Council, and who do not wish to practice in the State in which their residential address falls are at liberty to register themselves in the other State in accordance with s.32(2) of the Pharmacy Act - However, such of those pharmacists whose names were registered in the First Register prepared by the erstwhile F State of Bihar, need to formally seek registration u/s.32(2) of the Act in the State of Jharkhand and they need not satisfy the qualification prescribed by the Education Regulation - Bihar Reorganization Act of 2000 - ss.84, 85 - Constitution of India -

Art.3. .

s.32 - Subseque!Jt register - Ajier the Education Regulations came in force, only persons who possess qualification as prescribed by the Education Regulations are entitled to be registered - Thus, the qualifications as mentioned in s.31 would be relevant only till preparation of First Register uls.30 - Bihar Reorganization Act, 2000.

RANJAN SINHA & ANR. v. AJAY KUMAR VISHWAKARMA 19?

Bih01• Reorganization Act, 2000: .

ss.84, 85 - All the laws immediately in force before the appointed date in the erstwhile Bihar shall be deemed to be applicable to the territoris of Jharkhand and the territories of Bihar for the purpose of applicability of laws.

When a new State is formed by law made by Parliament, whether the laws made by the existing State out of which a new State is formed continue to apply to the territories included in the new State - When the existing State territory is reorganized by the Parliament there is no change in Sovereignty - It is only adjustment

of territories by transferring some territories in the existing State to C a newly formed State - Therefore, all the laws which were applicable to the territories of the re-organized State would continue to apply to the territories transferred to the new State uritil the latter either adapts or, subject to its competency amends or.repeals the existi_ng and applicable laws. ·

. D Constitution of India..:. Art.3 - The principle of 'clean. slate' as applicable in international law is not applicable when reorganization takes place u/Art,3 of the Con.stitution The reorganized States do not usually start as tabula rasa, rather they are successors of a pre-existing erstwhile States - Bihar Reorganization Act, 2000.

Disposing of the appeal, the Court

HELD: 1. After the enactment of Drugs and Cosmetics Act, 1940 which prescribed the standard of quality of drugs sold. in India, 'the importance of the role played by a pharmacist .was realized. The Drug Rules, made under the Drugs and Cosmetics Act, prescribed that the medicines which were compounded on the prescription of medical practitioner can only be sold directly

by a pharmacist. In the absence of a qualified pharmacist, there was a threat to the general health of people in India. Therefore with a view to regulate the profession and practice of pharmacy, G Pharmacy Bill of 1947 was introduced in the Parliament. It was . referred to the Select Committee which made recommendations.

Incorporating the same, the bill was passed. The statement of objects and reasons makes it clear that only persons with minimum standard of professional education should be permitted H

A to practice the profession of pharmacy and for that purpose; it was proposed to establish a Central Pharmacy Council with powers to prescribe minimum standards of pharmacy education.

It was also proposed to establish provincial registers of qualified Pharmacists. After the Act came into force, erstwhile Bihar B constituted Registration Tribunal which duly prepared the First Register of pharmacists and the State Government published the same as per Section 30 (4) of the Act. [Paras 12, 13][208-G-H;

209-A-C]

2. When the Act was first enforced in the erstwhile Bihar, there was neither a formal course in Pharmacy nor was there any C Education Regulation made by the Central Council. Section 31 stipulated qualifications for pharmacists, as a temporary measure, for preparation of First Register in the erstwhile Bihar. Section 32 of the Act prescribes qualifications for subsequent registration.

According to Section 32 (2), after the Education Regulations were D brought in force, only those persons who possess qualification prescribed by Education Regulations are eligible to be entered in the register of the pharmacists.[Para 18](212-C-D]

3.1 After formation of Jharkhand with effect from 15.11.2000, by reason of Section 3 of the BROA, the territories E in the erstwhile Bihar were included in the Jharkhand. As a result those included territories ceased to be. the territories of Bihar, but, Section 84 and 85 of BROA saved all the e.nactments in force immediately before 2000 and provided that the provisions of the reorganization of the Bihar [Section 3 to 6 in Chap 2, BROA],

F shall not be deemed to effect the change in territories to which any law in force applied. Further it is provided that any territorial reference in any 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 G by way of repeal or amendment by the appropriate Government i.e., Central or State Government, as the case may be. Further the term 'law' is defined in Section 2 (f) of BROA includes any enactment, ordinance, regulation, order, byelaw, rule, scheme, notification or other instrument having, immediately before the

H appointed day, the force of law in the whole or in any part of the

RANJAN SINHA & ANR. v. AJAY KUMAR VISHWAKARMA 197

existing Bihar. Therefore, all the laws immediately in force before A 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 erstwhiie State of Bihar before the appointed .date. [Paras 19, 20)(212-E-H; 213-A]

3.2 Sections 31 and 32 make it clear that the qualifications prescribed for entering the name of the pharmacists in the First Register is different from the qualifications prescribed for entering

the name of the pharmacist in the. subsequent register, after coming into force of Education Regulations. When the legislature enacted the Act, there were hardly any pharmacy colleges offering C dedicated pharmacy course. Taking that into consideration, Parliament prescribed qualifications under Section 31 for a limited period till the framing of Education Regulations. Aftel'. the Act came into force by reason of Sections 10 and 11, the Central Council was empowered to make Education Regulations D prescribing minimum standards of Pharmacy education. Thus, Sections 30 and 31 were intended to be effective and enforceable only till such time the Central Council makes Education Regulations. This is the reason why Section 32 starts with the phrase 'after the date appointed under sub section (2) of section '30 and before. education regulations have taken effect in the State. • In E such a case a person shall be entitled to have his. name entered in the register if he carries on the profession of the pharmacy in the State and he satisfy the conditions prescribed by the State.

As per sub-section (2) of Section 32, after enactment of the Education Regulations, a person shall be entitled to have his name entered in the register only if he possesses the qualifications as prescribed by Education Regulations. Thus, the qualifications as mentioned in Section 31 would be relevant only till such time of preparation of Ffrst Register under Section 30.[Para 21)(213-

B-E]

3.3 The question however, remains as to whether the First Register prepared by the erstwhile Bihar shall be deemed to be the First Register of the newly formed State of Jharkhand. The Act came to force in India, including erstwhile Bihar, in the year ·

1948. As per Section 29 (1), every State .as soon as Chapter IV

A has taken effect, the State shall prepare a register of pharmacists by inference, such register is the First Register. Section 31 prescribes qualifications for those who would be entered into First Register. For the purpose of registration in the First Register, State Government shall constitute a Registration Tribunal and

B the First Register so prepared shall be published. The First 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 C: 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.

D [Paras 22, 23)(213-F-G; 214-A-C] ·

4. There is no doubt that as directed by the State Government, the First Register for the erstwhile Bihar was duly published after following the procedure contemplated under Section .. 30 of the Act. Article 3 of the Constitution inter alia; empowers the Parliament by law to form a new State by separatioli" ·· E of territory from any State or by uniting two or more States.Article . 4 is.to the effect thatthe law made by the Parliament with reference to Article 3 may contain supplemental, consequential and incidental provisions. When the existing State territory is reorganized by the Parliament there is no change in Sovereignty'. . F It is only adjustment of territories by transferring some territorie.s in the existing State to a newly formed State. Therefore, all the laws which were applicable to the territories of the re-organized State would continue to apply to the territories transferred to the. new State until the latter either adapts or, subject to its competency amend5 or. repeals the existing and applicable laws.

G. Whenever a law was made under the Articles 2, 3 and 4 of the

.. Corstitution of India, re-organizing the State, the Parliament included provisions to explicitly spell out such position. States Re-organizations Act of 1956, Bombay Re-organization Act of 1960, The Punjab Re-organization Act of 1966, Madhya Pradesh

RANJAN SINHA & ANR. v. AJAY KUMAR VISHWAKARMA 199 .

Re-organization Act of 2000, Uttar Pradesh Re-organization Act A of 2000 and Andhra Pradesh Re-organization Act of 2014 contained provision which laid down that the laws in existing State would apply to all the territories transferred to form a new State. [Paras 24-26)(214-C-D, E-H; 215-A; 216-A-BJ

5. Section 84 of BROA contains two legal fictions, first is B 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 C State of Jharkhand even after reorganization. The second fiction is that until Jharkhand provides for it by way of amendment or otherwise, territorial reference in any law to the Bihar shall me.an : all the territories in the Bihar before reorganization; For instance, ifBihar had made a law as applicable to entire Bihar, it shall apply to the Bihar and Jharkhand until it is amended by the new State. D The terr•tories to which the said Act is made applicable would also include the territories which were included in the Jharkhand.

Section 85 is an enabling provision which empowers both the States to make adaptations and modification of the .. law by way of amendment to the law as the appiicable to newly formed State. • .. [Para 29)(218-A-CJ E

6. The Ffrst RegiSter pblished .in Bihar hefore reorganization would be deemed to be the First Register of llewly formed Jharkhand to the extent it contains those pharmacists who were .natives of the territories that were transferred to Jharkhand. When a State as foring part of Indian nation is reorganized, in law in so far as application of laws is. concerned, the following three things would happen namely; (i) the existing State (Parent State) which made various laws, would continue to exist;

(ii) the new State so formed by transferring some territories will

be deemed to be the territories of the parent State. for the purpose . G of applicability of the laws; and (iii) those laws made by parent State shall continue to apply to new State until they are modified or amended by a competent. legislature in relation to new State and the 'law' as defined in the definition Clause would be the law which was in force in the existing State which would be enforceable H

A in the newly formed State. [Paras 34, 35] [223-A-C)

7.1 Under Article 3 of the Constitution, the Parliament can alter, amend, amalgamate,. form new States, diminish or increase area of a State. The principle of 'clean slate' as applicable in international law is not applicable when reorganization takes place B under Article 3 of the Constitution. The reorganized States do not usually start as tabula rasa, rather they are successors of a pre-existing erstwhile States, Under the BROA, the Jharkhand was carved out of the Bhar and the two separate states came into existence on 15.11.2000. If the laws in force were to lapse on the day the division was effected, a chaotic situation would C have emerged inasmuch as the 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 D by mere issuance of orders within two years, and thereafter by legislation. '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. The First Register prepared by the Bihar has the force of law under Section E 2(f) of the BROA. [Paras 36, 37) [223-D-H]

7.2 In view of that when the First Register of Pharmacists prepared by the Registration Tribunal was published by the Government of Bihar under subsection (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 by Section 31 of the Act. However, after the coming into force of the Education Regulations as well as at the time of subsequent Registration, Government has to necessarily adhere to the G Education Regulations. Any person who does not satisfy the qualifications as per the Education Regulations shall not be entitled to seek entry in the Pharmacy register. In that view of the matter, when the State of Bihar is precluded from preparing the First Register again, then the State of Jharkhand is1equ!llly not entitled in law to prepare the First Register again. The High H

RANJAN SINHA & ANR. v. AJAY KUMAR VTSHWAKARMA 201

court of Jharkhand therefore came to correct conclusion in this A regard. The High Court did not consider the effect of Section 84 of BROA fully with reference to First Register, though it came to the conclusion that there was no need for preparing the First Register all over again. The First Register for the State of Jharkhand is the register already prepared for the undivided B Bihar including all the pharmacists who may now be residing in the State of Jharkhand. In so far as BROA is concerned, though the Act was adopted under Sections 84 and 85 of BROA, no such amendment has been made. In that view of matter applying section 84, First Register prepared by the erstwhile Bihar will be deemed and continues to be the First Register for the Jharkhand. This does not however prohibit the Jharkhand to take up subsequent registration as per Sections 32 and 32A and 328.

In such an event concerned authority of Jharkhand has to follow

the Education Regulations as amended from time to time by the Pharmacy Council of India. Section 86 of BROA, explicitly D empowers this Court to construe the law in a manner to effectively implement Sections 84 and 85. In light of having considered all the provisions of BROA, all pharmacists in the First Register of pharmacist for the former State of Bihar, whose residential address, as shown therein, fall in the territory of State of Jharkhand, shall be construed to be part of First Register of E Jharkhand. Future inclusion of additional names in the Register is to be made strictly in terms of Section 32(2) of the Pharmacy Act. State of Jharkhand will take all necessary steps to constitute a State council in near future, if not already undertaken.

Consequently the High Court order to the extent of quashing the notification of State Government of Jharkhand, dated 12.11.2001, constituting the Registration Tribunal in terms of Section 30 and advertisement calling for applications in terms of Section 31 is upheld. [Paras 38, 39, 41 and 42)[224-A-E; 225-G-

H; 226-A-C]

State of Punjab v. Balbir Singh (1976) 3 SCC 242 : [19761 2 SCR 115; Sher Singh v. Financial Commissioner of Planning, Punjab (1987) 2 SCC 439 : [19871 2 SCR 691; Dayanand v. Union of India (1996) 7 SCC 47 : [19951 3 Suppl. SCR 533; Commissioner of Commercial Taxes, Ranchi v. Swarna Rekha Cokes and

A Coals (Pvt.) Ltd. (2004) 6 SCC 689 : [2004) 2 Suppl.

SCR 633 - relied on.

Case Law Reference

[1976] 2.SCR 115

[1987) 2 SCR 691 [1995] 3 Suppl. SCR 533

relied on reliedon relied on

Para 30 Para 31 Para 32

[2004) 2 Suppl. SCR 633 i:elied on Para 33 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8121 of 2004.

C From the Judgment and Order dated 18.06.2003 of the High Court of Jharkhand at Ranchi in W. P. (PIL) No. 1429 of2002.

Maninder Singh, ASG, A. Mariarputham, AjitKr. Sinha, Sr. Advs., Ms. Aruna Mathur, Yusuf Khan, Avneesh Arputham, Ms. Anuradha Arputham (For Mis: Arputham, Arona & Co.), Ms. Bina Gpta, Prabhas Bajaj, Rohit Rathi, Akshay Amritanshu, Ratan Kumar Choudhuri, A. P. D Mayee, Kumar Parimal, A. Selvin Raja, Mishra Saurabh, Anldt Kr. Lal,· Ms. Vanshaja Shukla, C.D. Singh, Ms. Sakshi Kakkar, Varinder Kumar

Sharma, Mohd. Shahid Hussain, Ashok Mathur, B. K. Satija, Advs. for the appearing parties.

The Judgment of the Court was delivered by

N. V. RAMAN A, J. 1 ~This case revolves round the complexities faced by the State of Jharkhand [hereinafter 'Jharkhand' for brevity]· and applicability of laws, framed by the erstwhile State of Bihar [hereinafter 'Bihar'for brevity], to the newly bifurcated State by means ofBihar Reorganization Act, of2000 (Act No. xxx 0(2000) [hereinafter

'BROA 'for breviry]. In this Civil Appeal we are called upon .to determine the scope of Sections 30, 31and32 ofPharmacyAct, 1948 [hereinafter 'Act' for breviry] and it's applicability to the new State after 15.11.2000.

The examination of the questions which fall for our consideration, as indicated hereafter, would also involve consideration of various provisions G of BROA, which we propose to do after noticing the brief factual background.

2. The Act came into force in.India including the undivided Bihar in 1948. In the State ofBihar, State Pharmacy Council, underthe 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 A India under Section I 0 of the Act came into force with effect from 07 .02.1958. It may be mentioned th.at 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 B under Section 30 of the Act on 12.11.2001. The said Tribunal published the following notification on I 4.01.2002 inviting applications for registration of pharmacists in the State of Jharkhand.

HINDUSTAN Published from Ranchi, C Patna, Delhi and Lucknow

RANcm, MONDAY 14 TH JANUARY 2002.

GQVERNMENT OF JHARKHAND

. HEALTH, MEDICAL. EDUCATION AND FAMILY WELFARE. DEPARTMENT

(MEDICAL EDUCATION AND RESEARCH) D

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 1948 may apply forregistration and the last date for making such applications fixed as 25.02.2002.

The prescribed fee fo.r registration are described as under:

1. Registration fee Application form fee . Inscenti ve fee Registration fee

2. Renewal fee Incentive fee Renewal fee

3. No objection certificate fee

4. Duplicate Certificate fee

5. Lae fee

:Rs. 25/- :Rs. 25/- . :Rs. 200/-

:Rs. 25/- :Rs.l 00/-

. : Rs.100/- . : Rs. 275/- : Rs. 25 per year

A The application forms can be obtained on any working day from the office of Pharmacy Institute, Ranchi, Registrar, Pharmacy Registration Tribunal, Bariyat, Ranchi on prescribed fee and the completed form along with the bank draft can bedeposited at the same place.

Sd/- (Prakash Kumar) B Dy. Secretary to Govt.

P.R. 2278 (Health 100) 2001-2002

(emphasis supplied)

4. It is clear from the press notification that all the persons who c have qualification under Section 31 of the Act were qualified to apply for registration as pharmacists. Being aggrieved, three diploma holders in pharmacy from the recognized institutions and registered as pharmacists filed Writ Petition being W.P. No. 1429 of2002, praying for writ in the nature of certiorari to quash the press notification dated 14.01.2002 and for a writ in the nature of mandamus to Registration D Tribunal, Ranchi, the Respondent No. 6 herein, to register only such persons, as pharmacists, who have requisite qualifications in terms of the Education Regulations, 1991 i.e., having qualification of diploma or degree of duly recognized by Pharmacy Council of India or State Councils.

The Petitioners before the High Court mainly contended that when the E First Register under Section 30 of the Act was prepared by the erstwhile Bihar, there is no question of preparing First Register again by Jharkhand and that any subsequent registration or preparation of register will be in accordance with Section 32 in which event only those persons who fulfill the qualification as per the Education Regulations would be entitled to

F be registered as pharmacists.

5. Before the High Court, Jharkhand took a plea that on formation of the new State it acquired a right to prepare First Register in terms of Section 30 and that in furtherance thereof a Registration Tribunal was constituted to register all those who possess qualifications in terms of Section 31. The State Pharmacy Council also took a similar plea. It is a G 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 H

RANJAN SINHX & ANR. v. AJAY KUMAR VISHWAKARMA 205

[N. V. RAMANA, J.]

consideration of applicable provisions of the Act and BROA came to the A conclusion that Education Regtilations, 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 B Act was extended to the State ofBihar 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 competent Legislature, namely, the Parliament, that no such attempt was also made by the State of Legislature and in the Jharkhand and unless a person was qualified in terms of the Education Regulations, he could riot get his name entered in the Register. We find considerable force

in this submission. It is true that the Jharkhand was carved out D with effect from 15.11.2000. By virtue of Section 84 of the Bihar Reorganization Act, the Pharmacy Act and the Education Regulations applied. In the absence of any modification, alternation or repeal of either the Act or the Education Regulations by the competent Legislature, it could not be postulated that the law had ceased to be in force merely on the formation of the State of E Jharkhand. Section 84 of the Bihar Reorganization Act, in our view, is clear. Moreover, it is not possible for the Court to contemplate a law less State as it were. If the argument of the Respondents were to be accepted, the position would be that there was no law relating to Pharmacy or regarding qualifications for getting recognition as a Pharmacist in the State of Jharkhand and F

it is yet to be made. In other words, until the same is made there will be a vacuum. Such an argument, uless compelled, can not be acceptable. The territories now forming the State of Jharkhand originally formed part of the State ofBihar, were governed by the Act and the Education regulations promulgated and adopted in G terms of Section 85 of the Bihar Reorganization Act. This scheme of the Reorganization Act is consistent with the general principle that a law once made applicable to a territory will continue to apply to that territory unless its application is abrogated or dispensed

with by the competent Legislature or authority or its replacement by any other law enacted in that behalf. Therefore, it is clear that .Education Regulations promulgated under Section 10 and adopted in terms of Section 11 of the Act to the territory .in question, continues to apply. There is also the stand adopted by the Indian pharmacy Council in its additional counter affidavit. We find the said stand sustainable in law.

7. In dealing with the question whether Jharkhand is entitled to prepare the First Register again, the High Court observed that it is skeptical on the need for preparing the First Register in terms of Section C 30 of the Act and went on to say. ·

There was already a First Register for the State ofBihar including the.territories forming the State of Jharkhand in terms of Section 3ofthe State ofBihar 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 Stat\: 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 of Section 32 (2) of the Pharmacy Act. The argument, that on the formation of a State, the State is obliged to prepare a First register in terms of Section 30 of he Act with reference to Section 31 of the Act cannot, therefore, be accepted.

8. Aggrieved by the Order of the High Court, appellants herein appealed by way of special leave to this Court.

POINTS FOR CONSIDERATION A

9. In light of these background facts and contentions raised by the appellants, following two points would arise for consideration-

1. Whether the First Register prepared by the State ofBihar shall be deemed to be the First Register of the State of Jharkhand in view of Section 84 and 85 of the Bihar Reorganization Act of B 2000?

2. Whether persons whci do not possess any qualification as prescribed by the Education Regulations are entitled to be registered by the State of Jharkhand?

SUBMISSIONS

I 0. Before this Court, Learned Senior Counsel Shri A.

Mariarputham, for appellant has mainly contended thatc

a. On reading the provisions of the Act, it is clear that there is a mandatory requirement to have register under Section 29 by D every State/State Government and the State Council is duty bound to maintain the register as required under Section 29.

b. The Hon'ble High Court has erred in failing to appreciate that every State has to have a First Register of the pharmacists on its own as mandated in Section 30 and 31 of the Act which is an express provision. If the interpretation given by the Hon'ble High Court is agreed, then Section 29, 30 and 31 will become redundant and meaningless.

c. In any case the Education Regulation which is a subordinate legislation cannot prevail over the express provisions of the Act. The High Court erred in laying down to procedure which is not in consonance with the express provisions of the Act.

11. Learned Senior Counsel Shri Ajit Kumar Sinha, for State of Jharkhand contends thata. Section 30 requires First Register to be prepared by the State

Government by constituting a Registration Tribunal.

b. In the erstwhile State ofBihar, there was a Register in existence, does not take away the obligation of the State of Jharkhand to prepare the First Register.

c. The fact that territories comprised in the State of Jharkhand H

A were earlier part of Bihar, does not detract from the fact that Jharkhand is a separate and independent State, and that 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 B 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 c its own terms and since the language is clear, has to be given effect to, as it is.

t: 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 D and 31 together are a complete code for preparing the First Register. In this context, Education Regulations cannot be factored in for the purposes ofinterpretation, 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 E Reorganisation Act which militate against Sections 30 and 31 of the Pharmacy Act. They are general provisions to deal with the administration of the State, in the context of the new State of Jharkhand coming into existence, whereas Sections 30 and 31 of the Pharmacy Act are special provisions and in the field specified/occupied by the Pharmacy Act, they would F prevail and operate .

. POINT No.1AND2

12. We propose to deal with both the points together. It appears that after the enactment of Drugs and Cosmetics Act, 1940 which G prescribed the standard of quality of drugs sold in India, the importance of the role played by a pharmacist was realized. The Drug Rules, made under the Drugs and Cosmetics Act, prescribed that the medicines which were compounded on the prescription of medical practitioner can only be.sold directly by a pharmacist. In the absence of a qualified pharmacist, there was a threat to the general health of people in India. Therefore H

with a view to regulate the profession and practice of pharmacy, A Pharmacy Bill of 194 7 was introduced in the Parliament. It was referred to the Select Committee which made recommendations. Incorporating the same, the bill was passed. The statement of objects and reasons makes it clear that only persons with minimum standard of professional education should be permitted to practice the profession of pharmacy and for that purpose; it was proposed to establish a Central Pharmacy Council with powers t-0 prescribe minimum standards of pharmacy education. It was also proposed to establish provincial registers of qualified Pharmacists.

13. After the Act came into force, erstwhile Bihar constituted Registration Tribunal which duly prepared the First Register of C pharmacists and the State Government published the same as per Section 30 (4) of the Act.

14. The Chapter l of the Act containsshort title, extent and commencement of the Act and definitions. It would be pertinent to note that Section l (3) states that Act will come into force at once, but Chapters TU, IV, V shall take effect in a particular State from such date as the State Government may, by notification in the Official Gazette, appoint in this behalf. Further proviso to the said Section states that where on account of the territorial changes brought about by the reorganization of States on the I" day ofNovember, 1956, Chapters III, IV and V shall take effect in the remaining part of that State from such date as the State Government may in like manner appoint. 1 Although it was argued that the bifurcation of Jharkhand took effect after 1956 therefore, the proyiso 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 State.s Re-organization of States in 1956 as on 1' 1 of November, 1956 anq the application of this proviso cannot be extended beyond 01.11.1956 by way of interpretation ofBROA. .

15. At this stage, it wquld be apt to refer, to tWo definitions relevant for resolution of the dispute in this case. As per Section2 (h) "register" means a register of pharmacists prepared and maintain1;.d under Chapter IVi. The term register connotes that both First Register as well as

1 This proviso was introduced by Act 24of1959.see. 2 (w.e.f. 1-5-1960) 2 This definition was introduced by Act 70 of 1976, sec. 2, for clai!ses (h), (i) and (j) (w.e.f. 1-9-1976)

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 profession or business of pharmacy.

16. The Chapter IP of the Act contains the framework for the Pharmacy Council of India and its functions. Under Section 10 of the Act, the Pharmacy Council of India is empowered to make Education Regulations prescribing the minimum standard of education required to be qualified as a pharmacist.4 In accordance therewith the Pharmacy Council notified the Education Regulations in the year 1953 which was subsequently replaced by the Education Regulations, 1972. These Regulations were repealed and replaced by the Education Regulations,

1981. As of now the Education Regulations, 1991 (repealing Education Regulations, 1981) are in force which were notified on 11.07.1992. It is to be noted that these Education Regulations have been in force now for past 50 years and have been implemented in all parts of the country uniformly. Section 11 of the Act provides for enforcement of the Education Regulations framed under Section 10 of the Act.

17. The Chapter N of the Act, inter alia, provides for qualification, registration, renewal and removal of pharmacists from the register. Under Section 29 thereof it shall be the duty of the State Govemment to cause to be prepared a register of pharmacists for the State. Section 30 deals with the constitution ofa Registration Tribunal consisting ofthree members entrusted with the powers of preparing the First Register. Section 31 prescribes qualification for registration in the First Register. These two provisions are extracted below-

30. Preparation of first register-( I) For the purpose of preparing the first register, the State Govemment shall by notification in the Official Gazette constitute a Registration Tribunal consisting of three persons, and shall also appoint a Registrar who shall act as Secretary of the Registration Tribunal.

(2) The State Govemment shall, by the same or a like notification, appoint a date on or before which applications for registration,

'Contains Sections 3 to 18 of the Act

4 JO. Education Regulations.-(!) Subject to the provisions of this section, the Central Council may, subject to the approval of the Central Government, make regulations, to be called the Education Regulations, prescribing the minimum standard of education required for qualification as a pharmacist

which shall be accompanied by the prescribed fee, shall be made to the Registration Tribunal.

(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 din:ct, 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-5 A person who has attained the age of eighteen years shall be entitled on payment of the prescribed fee to have his name entered in the first register if he resides. or carries on the business or profession of pham1acy, in the State and if he

(a) holds a degree or diploma in pharmacy or pharmaceuti1:al chemistry or a chemist and druggist diploma of an Indian University or a State Government as the case may be. or a prescribed qualification granted by an authority outside 6 [***] India, or

(b) holds a degree of an Indian University other than a degree in pharmacy or pharmaceutical chemistry. and has been engaged in the. compounding of drugs in a hospital or dispensary or other place in which drugs are regularly dispensed on prescriptions of medical practitioners for a total period of not less than three years, or

5 Substitute by by Act 24 of 1959. sec. 9, for "A person shall be entitled" (w.e.t: 1-5- 1960)

6 The words "the Provinces at" omitted by the A.O .. 1950

( c) has passed an. examination recognized as adequate by the State Government for commoners or dispensers, or

( d) has been engaged in the compounding of drugs in a hospital or dispensary or other place in which drugs are regularly dispensed on prescriptions of medical practitioners for a total period of not less than five years prior to the date notified. under subsection (2) of section 30. l

18. When the Act was first enforced in the erstwhile Bihar there was neither a formal course in Pharmacy nor was there any Education Regulation made by the Central Council. The Section 31 stipulated c qualifications for pharmacists, as a temporary measure, for preparation ofFirst Register in the erstwhile Bihar. Section 32 of the Act prescribes qualifications for subsequent registration. According to Section 32 (2), after the Education Regulations were brought in force, only those persons who possess qualification prescribed by Education Regulations are eligible to be entered in the register of the pharmacists. There is no dispute D about this fact.

19. After formation of Jharkhand with effect from 15.11.2000, by reason of Section 3 of the BROA, the territories in the erstwhile Bihar were included in the Jharkhand. As a result those included territories ceased to be the territories ofBihar, but, Section 84 and 85 ofBROA saved all the enactments in force immediately before 2000 and provided that the provisions of the reorganization of the Bihar [Section 3 to 6 in Chap 2, BROA], shall not be deemed to effect the change in territories to which any law in force applied. Further it is provided that any territorial reference in any 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 ofrepeal 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) ofBROA includes any enactmel}t, ordinance, regulation, order, byelaw, rnle, scheme, notification or other instrument having, immediately before the appointed day, the force oflaw 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

te1Titories of Jharkhand and the te!Titories of Bihar !<Jr the purpose of A applicability oflaws shall be deemed to be part of territories of erstwhile State of B ihar 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 qualifications B prescribed for entering the name of the pharmacist in the subsequent register, after coming into force of Education Regulations. When the legislature enacted the Act, there were hardly al"\Y pharmacy colleges offering dedicated pharmacy course. Taking .tfl'at into consideration, Parliament prescribed qualifications under Section 31 for a limited period till the framing of Education Regulations. After the Act came into force C by reason of Sections l 0 and 11 the Central Council was empowered to make Education Regulations pn:scribing minimum standards of Pham1acy education. Thus, Sections 30 and 31, in our considered opinion, were intended to be effective and enforceable only till such tjme the Central Council makes Education Regulations. This is the reason why Section D 32 starts with the phrase 'after the date appointed under sub section

(2) of section 30 and before education regulations have taken effect in the State. In such a case a person shall be entitled to have his name entered in the register ifhe carries on the profession of the pharmacy in the State and he satisfy the conditions prescribed by the State. As per sub-section (2) of Section 32, after enactment of the Education E Regulations, a person shall be entitled to have his name entered in the register only if he possesses the qualifications as prescribed by Education Regulations. Thus, the qualifications as mentioned in Section 31 would be relevant only till such time of preparation of First Register under

Section 30. In other words, the qualifications mentioned in Section 31 F would be of no relevance at the time of subsequent registration under Section 32 and after the promulgation ofEducation Regulations.

22. The question however, remains as to whether the First Register prepared by the erstwhile Bihar shall be deemed to be the First Register of the newly formed State of Jharkhand.

23. The Act came to force in India, including erstwhile Bihar, in the year 1948. As per Section 29 ( 1 ), every State as soon as Chapter IV has taken effect, the State shall prepare a register of pharmacists by inference, such register is the First Register. Section 31 prescribes

A qualifications for those who would be entered into First Register. For the purpose of registration in the First Register, State Govemment shall constitute a Registration Tribunal and the First Register so prepared shall be published. The First 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. Areading of sub-section (4) and (5) of Section 30 would show thatan 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 ofindia.

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 Govemment it D 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 reorganization 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 separation of territory from any State or by uniting two or more States. Article 4 is to the effect that the law made by the Parliament with reference to Article 3 may contain supplemental, consequential and incidental provisions. When a new State is formed by law made by Parliament, whether the laws made by the existing State out of which a new State is formed continue to apply to the territories included in the new State? When the existing State territory is reorganized by the Parliament there is no change in Sovereignty. It is only adjustment of territories by transferring some territories in the existing

State to a newly formed State. Therefore, all the laws which were applicable to the territories of the re-organized State would continue to G apply to the territories transferred to the new State until the latter either adapts or, subject to its competency amends or repeals the existing and applicable laws.

26. Whenever a law was made under the Articles 2, 3 and 4 of the Constitution ofindia, re-organizing the State, the Parliament included H provisions to explicitly spell out such position as explained in paragraphs

above. The States Re-organizations Act of 19567, Bombay Reorganization Act of !960x, The Punjab Re-organization Act of 19669,

7 The State Re-organizations Act of 1956, Act XXXVI! of 1956.

119. Territorial extent of laws.- The provisions of Part ll 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 Jaw to an existing State 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.

120. Power to adopt laws.- For the purpose of facilitating the application of any law in relation to any of the States formed or territorially altered by the provisions of Part ll, the appropriate Government may, before the expiration of one year from the appointed day, by 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, repealed or amended by a competent Legislature or other competent authority.

'Bombay Re-organization Act of 1960, Act XI of 1960.

87.Territorial extent of laws.- The provisions of Part 11 shall not be deemed to have effectd any change in the territories to which any Jaw 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 Jaw 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 Jaw, 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.

9 The Punjab Re-organization Act of 1966, Act XXXI of 1966.

88. Territorial extent of laws.- The provisions of Part 11 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 Punjab shall, until otherwise provided by a competent Legislature or other competent au'thority, be construed as meaning the territories within that

State immediately before the appointed day.

89. Power to adapt laws.- For the purpose of facilitating the application in relation to the State of Punjab or Haryana or to the Union territory of Himachal Pradesh or Chandigarh of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by 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, repealed or amended by a competent Legislature or other competent auth\lrity.

Madhya Pradesh Re-organization Act of 2000 10, Uttar Pradesh Reorganization Act of2000" and Andhra Pradesh Re-organization Act of 2014 12 contained provision which laid down that the Jaws in existing

10 Madhya Pradesh Re-organization Act of 2000, Act XXVlll of 2000.

78. Territorial extent of Laws.-The provisions of Part I! of this Act 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 Madhya Pradesh shall, until otherwise provided by a competent Legislature or other competent authority be constituted as meaning the territories within the existing State of Madhya Pradesh before the appointed day.

79. Power to adopt laws.-For the purpose of facilitating the application in relation to the State of Madhya Pradesh or Chhattisgarh of any law made before the appointed day, the appropriate Government may, before the expiration of two years from the day, .by 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, repealed or amended by a competent legislature or other competent authority.

11 Uttar Pradesh Re-organization Act of 2000, Act XXIX of 2000.

86. Territorial extent of Jaws.- The provisions of Part 11 shall not be deemed to have affected any change 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 ofUttar 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.

"Andhra Pradesh Re-organization Act of 2014, Act No. VI of 2014.

100. Territorial Extent of laws- The provisions of Part II shall not be deemed to have affected any change in the territories to which the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 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 Andhra Pradesh shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing State of Andhra Pradesh before the appointed day.

101. Power to adopt laws.- For the purpose of facilitating the application in relation to the State of Andhra Pradesh or the State of Telangana of any law made before the appointed day, the appropriate Government may, before the expiration

State would apply to all the territories transferred to form a new State.

27. The BROA contains similar provisions in Sections 84 and 85 which read as under.

84. Territorial extent of laws.- The provisions of Part II of this Acr 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 Bihar shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing Bihar before the appointed day.

85. Power to adapt laws.- For the purpose of facilitating the application in relation to the Bihar or Jharkhand of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, take such adaptations and modifications of the law, whether by way ofrepeal 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.

Explanation.- In this section, the expression" appropriate 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 te 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.

of two years from that day, by order. make such adaptations and modifications of the law, whether by way ofrepeal or amendment, as may be necessary or expedient, nnd thereupon every such law shall have effect subject to the adaptations and inodifications so made until altered, repealed or amended by a competent Legislatwe or other competent authority.

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; ln other words, a law made by Bihar shall be applicable to all the territories of erstwhik 'it;1te of Bihar including the territories of State of Jharkhand evi; n after reorganization. The Second fiction is that until Jharkhand provides for it by way of amendment or otherwise, territorial reference in a any I v to the Bihar shall mean all the territories in the Bihar before reorganiz;111un.

For instance, if Bihar had made a law as applicable to entire Bihar, it shall apply to the Bihar and Jharkhand until it is amended by the new State. The territories to which the said Act is made applicable would also include the territories which were included in the Jharkhand. Section 85 is an enabling provision which empowers both the States to make adaptations and modification of the law by way of amendment to the law as the applicable to newly formed State.

30. We shall now consider four decisions of this Court which

have a direct bearing on the principles summed up above. In St.ate of Punjab v. Balbir SinghJJ, the Respondents who were government Servants challenged a government Order dt.28.10.1966 by which all of them were reverted from the post of sub-divisional officer. These orders were challenged, before the High Court of Punjab and Haryana, contending that they had become automatically confirmed as members of service and under the Punjab Service of Engineers, Buildings and Roads Branch (Recruitment and Conditions of Service) Rules, 1942 and therefore they could not have been reverted before complying with Article 311 (2) of the Constitution oflndia. The learned single judge allowed the writ petition and the resultant appeals were also dismissed by the division bench. Before this Court only submission was that the order on reversion having been received on or after 1.11.1966 i.e., appointed date is not saved by Section 88 of the Punjab Reorganization Act because being an administrative law it is not law. The submission was rejected by this Court observing as under -

If this could be the position in the continuance of the law in the successor States, on what principles one can say that the administrative. order made by the erstwhile State of Punjab automatically lapsed and came to an end on and from the appointed

" (1976)3 sec 242

day on the coming into existence of the successor States. ls it A possible to take the view that the Legislature when it made so many provisions in the Act in its various parts in regard to the matters already referred to, did not think it appropriate to make a provision for the continuance of the effect of the administrative orders passed by the Government of the erstwhile State of Pun B jab until the Governments of the Successor States modified or changed it? Or is it, as a matter oflaw and propriety, reasonable to think that the Legislature did not consider it riecessary 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 .D 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, Punjab14, the question was whether the Order of the competent authority under Punjab Security of Land Tenures Act, 1930 passed before the commencement of Punjab Reorganization Act, would continue to have effect after the appointed date. The contention of the appellant was that the order passed by the Punjab authority has become final and therefore he is entitled to have another holding of 50 acres in the State ofHaryana.

Referring to Section 88 ofBROA which dealt with territorial extent of laws and Haryana Adaptation of laws (States and Concurrent) Orders 1966, this Court rejected the appeal observing as under-

11. A combined reading of these two clauses makes it clear chat any order made or anything done or any liability incurred or a right accrued before, the 1st November, 1966 would not be affected by the coming into force of the order. These two clauses show

"(1987) 2 sec 439

unambiguously that the respective State Governments would be entitled to give effect to orders passed before 1st November, 1966, declaring the surplus area by utilizing them for the resettlement of the tenants, despite the Re-organization of the State of Punjab The orders passed will be respected by both the States. The fact that the land belonging to a particular owner, under fortuitous circumstances, fall in the two newly fonned States, will not in any way affect the operation of the orders which had become final prior to 1st November, 1966. To accept the Appellant's contention would create anomalies. Persons against whom proceedings under the Act were taken and became final prior to 1st November, 1966, would be entitled to claim lands in both the States while those whose petitions are pending on the date the States Re-organization Act came into force would be in a disadvantageous position. This is not the object of the Act. Nor the scheme behind it. The States Re-organization was a historical accident. The land owners cannot take advantage of this accident, to the detriment of ejected tenants or tenants in need of re-settlement.

32. Dayanand v. Union of India 15 is a case dealing with entitlement of benefits, for employees appointed after 1.11.1966 (appointed day for bifurcation of erstwhile State of Punjab), under Punjab Government National Emergency (Concession) Rules, 1965 (law made by the erstwhile Punjab State). This Court relied upon the dictum of.

State of Punjab v. Batbir Singh 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. 1'. 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

"(1996) 1sec47

Territory of Chandigarh until and unless modified, changed or A 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 Pmijab

Recruitment of Ex-servicemen Rules, 1982 repealed the Punjab B Government National Emergency (Concession) Rules, 1965 but the saving clause therein preserved the rights which had accrued to any person under the repealed rules. All the employees, in these matters were appointed after I. I I .1966 but before the application of 1982 Rules. There is no controversy that if the 1965 Rules continued to be in force in the Union Te1Titory after 1.11.1966 unless repudiated or repealed, the concerned employees in these matters, subject to fulfillment of the conditions of eligibility under the 1965 Rules, would be entitled to its benefit. The question for consideration, therefore is whether the 1965 rules were modified, repudiated or repealed in their applicability to these employees?

7. Tt is, therefore, clear that the Punjab Government National Emergency (Concession) Rules 1965 continued to apply in the Union Territory of Chandigarh even after 1.11.1966 till modified, changed or repudiated by the Union Territory Administration and they continued to apply to the employees appointed in the Union Territory after 1.11.1966 who were eligible for the benefit of those rules. This is so because these rules, relate to matters for which the Central Civil Services Rules were not applied to employees in Class IT, III & TV Posts. The contrary view taken by the Tribunal and the High Court cannot, therefore, be upheld.

33. The effect of Sections 84 and 85 of the BROA came up for consideration yet again in Commissioner of Commercial Taxes, Ranchi

v. Swarna Rekha Cokes and Coals (Pvt.) Ltd. t6 • Whether on bifurcation ofBihar and on creation of Jharkhand (comprising territories which before the appointed date were the territories of Bihar), benefits G flowing from the industrial policy of the erstwhile State ofBihar and the notification issued under the Bihar Finance Act would enure to the benefit of industries in Jharkhand after the appointed date? This Wl_!S the question. which fell for consideration before this Court. It was contended that

"' (2004) 6 sec 689 H

A unless and until similar exemption is granted by the Jharkhand, the dealers were bound to pay tax without claiming any benefits under Industrial

Policy. This Court referred to Section 84 and 85 of BROA as well as earlier decisions of this Court State of Punjab v. Balbir Singh, Sher Singh v. Financial Commissioner of Planning, Punjab, Dayanand

v. Union of India and held as follows-

The 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 constmed 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 adaptations and modifications of the law as it may consider necessary or expedient by way of repeal or amendment. Till such law is so repealed or amended in accordance with law, it shall have effect. After their amendment or alteration, they shall have effect subject to the adaptations and modifications made.

(emphasis supplied)

34. From our above discussion, we may sum up the principles with reference to a law, made under Article 3 of the Constitution of India reorganizing the existing State and the application of the laws that were in force in the parent State to the newly formed re-organized State.

This would be necessary because in our considered opinion, the First A Register published in Bihar before reorganization would be deemed to be the First Register ofnewly formed Jharkhand to the extent it contains those pharmacists who were natives of the territories that were transferred to Jharkhand.

35. When a State as forming part oflndian nation is re-organized, in law in so far as application of laws is concerned, the following three things would happen namely; (i) the existing State (Parent State) which made various laws, would continue to exist; (ii) the new State so formed by transferring some territories will be deemed to be the territories of the parent State for the purpose of applicability of the laws; and (iii) those laws made by parent State shall continue to apply to new State until they are modified or amended by a competent legislature in relation to new State and the 'law' as defined in the definition Clause would be the law which was in force in the existing State which would be enforceable in the newly formed State.

. 36. At the cost of repetition, we may mention that under Article 3 of the Constitution the Parliament can alter, amend, amalgamate, form new States, diminish or increase area ofa State. The principle of 'clean slate' as applicable in international law is not applicable when reorganization takes place under Article 3 of the Constitution. 17 The reorganized States do not usually start as tabula rasa, rather they are successors of a pre-existing erstwhile States. Under the BROA, the Jharkhand was carved out of the Bihar and the two separate states came into existence on 15.11.2000. If the laws in force were to lapse on

the day the division was effected, a chaotic situation would have emerged inasmuch as the newly created State would be rendered a State without laws. To avoid such situation, provisions like Sections 84 and 85 of F 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 G the force oflaw'. In view ofuse of the word 'includes', the definition of 'law' under Section 2(t) 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(t) of the BROA.

17 Supra, at 13 H

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 ofBihar under subsection ( 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 oflndia. For doing this the competent authority may take into consideration the qualifications as prescribed by Section 31 of the Act. However, after the coming into force of the Education Regulations as well as at the time of subsequent Registration, Government has to necessarily adhere to the Education Regulations. Any person who does not satisfy the qualifications as per the Education Regulations shall not be entitled to seek entry in the Pharmacy register. In that view ofthe matter, when the State of Bihar is precluded from preparing the First Register again, then the State of Jharkhand is equally not entitled in law to prepare the First Register again. The High court of Jharkhand therefore has come to correct conclusion in this regard.

39. At this stage we may mention that the High Court has not considered the effect of Section 84 of BROA fully with reference to First Register, though it came to the conclusion that there was no need fo\' preparing the First Register all over again. The First Register for the State qf Jharkhand is the register already prepared for the undivided Bihar including all the pharmacists who may now be residing in the State of Jharkhancl.

40. In the earlier part of the judgment we have considered the effect of Section 84 on the First Register prepared by the Bihar. This was not specifically urged before us. Be that as it may, as already observed by us, whenever a newly formed State desired to undertake

I the exercise of preparing the First Register all over again by adopt!llg the law such empowering provisions were specifically made. We may extract such provisions

ANDHRA PRADESH [AndhraA.L.O., 1954 (01.10.1953)]

33A. Special provision for preparation of the Register of l>harmacists for the State of Andhra.- (1) Notwithstanding anything contained in this Chapter, sµch person as may be authorized by the State Government of Andhra in this behalf (hereinafter called the authorized Officer) shall prepare a separate Register of Pharmacists for the State of Andhra as hereinafter

provided and that register shall, for all purposes be deemed to be A the register prepared under this Act.

MAHARASHTRA [S.O. 2814, published in Gazette of India, 19.08.1964, Pt.II, S. 3(ii), Ext., p. 717 (722, 723)]

29A. Provision in respect of registers of pharmacists for the State of Maharashtra and the State of Gujarat. - (1) As B soon as possible after the date on which the Bombay State Pharmacy Council (Re-organisation) Order, 1964, made under Section 4 of the Inter-State Corporation Act, 1957, comes into force, the Maharashtra State Pharmacy Council shall, notwithstanding anything contained in Ss. 30, 31 and 32, prepare c 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 S.29 whose residential addresses as shown therein on the D 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 l" 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 Jerri tori es of E 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 uf Maharashtra until the Maharashtra State Pharmacy Council starts functioning and . F operating in the Vidarbha region of this State ufMaharashtra under clause (2) of sub-section (5) of S. l 9-A;

41. In so far as BROA is concerned, though the Act was adopted under Sections 84 and 85 of BRO A, no such amendment has been.made.

In that view of matter applying section 84 we are inclined to hold that G First Register prepared by the erstwhile Bihar will be deemed and continues to be the First Register for the Jharkhand. This does not however prohibit the Jharkhand to take up subsequent registration as per Sections 32 and 32A and 32B. In such an event concerned authority of Jharkhand has to follow the Education Regulations as amnded from H

: ..

A time t<:> time by the Pharmacy Council of India.

42. The Section 86 ofBROA, explicitly empowers this Court to construe the law in a manner to effectively implement Sections 84 and

85. In light of having considered all the provisions of BRO A, we are of the opinion, that all pharmacists in the First Register of pharmacist for the former State of Bihar, whose residential address, as shown therein; fall in the territory of State of Jharkhand, shall be construed to be part of First Register of Jharkhand. Future inclusion of additional names in the Register is to be niade strictly in terms of Section 32 (2) of the Pharmacy Act. We further hope that State of Jharkhand will take all necessary. steps to constitute a State council in near future, if not already undertaken.

Consequently the High Court Order to the extent of quashing the notification of State Government of Jharkhand, dated 12.11.2001, constituting the Registration Tribunal in terms of Section 30 and advertisement calling for applications in terms of Section 31 is upheld.

43. In light of the above analysis and discussion, we order D hereundera. First Register prepared by erstwhile State of Bihar is to be treated as the First Register for newly formed State of Jharkhand and State of Bihar.

b. The First Register as prepared by the erstwhile State of Bihar is to be bifurcated based on the territorial nexus with the residential address as provided by the pharmacists at the time of registration.

c. The State of Jharkhand is at liberty to take all necessary steps to constitute a State Council.

d. Those pharmacists who are registered in the First Register of the erstwhile State of Bihar, before the enforcement of Education Regulation made by the Central Pharmacy Council, and who do not wish to practice in the State in which their residential address falls are at liberty to register themselves in the other State in accordance with Section 32 (2) of the Pharmacy Act. Here we make it clear that such of those pharmacists whose names were registered in the First Register prepared by the erstwhile State ofBihar, need to formally seek registration under Section 32(2) of the Act in the State of

Jharkhand and they need not satisfy the qualification prescribed A by the Education Regulation .

.-.

Illustration No.1-If'A' has his name registered in the first register . "",._, .. of erstwhile State of Bihar. He is at liberty to get his name registered in the State of Jharkhand as per Section 32 (2) of the _ Act;.f urther 'A' need not fulfill the qualification as prescribed B

~1iw'..the Eduction Regulation.

44. With the aforesaid observations and directions, the appeal stands disposed of. There shall be no order as to costs.

Devika Gujral Appeal disposed of. c