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2003 Supreme(Pat) 437
PATNA HIGH COURT
Nagendra Rai and R.S.Garg JJ.
Jagjit Singh
Versus
State Of Bihar
Letters Patent Appeal No. 1479 of 2001 ;
Decided On : APRIL 16, 2003
The main legal point established in the judgment is the interpretation of seniority under the Drugs and Cosmetics Act, 1940, and its rules, particularly in cases involving the equivalence and inter-transferability of positions.
Headnote:
Seniority - Drugs and Cosmetics Act, 1940 - Section 21, Section 3(e)(ii) - Rule 49 of the Drugs and Cosmetics Rules, 1945
Fact of the Case:
The appellant filed an appeal against the order allowing the writ application of the respondent, who was directed to rank senior to the original respondents and given consequential benefits. The appellant was originally appointed as Chief Hospital Pharmacist and later applied for the post of Drug Inspector, leading to a dispute over seniority.
Finding of the Court:
The court found that the appellant's earlier appointment and subsequent transfer to the post of Drug Inspector, along with the equivalence of the two positions, supported the respondent's seniority claim. The court also noted that the appellant did not challenge previous orders and accepted his position for a significant period.
Issues: The main issue was the determination of seniority between the appellant and the respondent, considering the appellant's previous appointment and subsequent transfer to the post of Drug Inspector.
Ratio Decidendi: The court relied on the provisions of the Drugs and Cosmetics Act, 1940, particularly Section 21 and Section 3(e)(ii), as well as Rule 49 of the Drugs and Cosmetics Rules, 1945, to interpret the seniority dispute. It emphasized the equivalence and inter-transferability of the positions held by the appellant.
Final Decision: The appeal was dismissed, affirming the lower court's decision in favor of the respondent's seniority claim.
1. The appellant Jagjit Singh has filed this letters patent appeal under Clause (10) of the Letter Patent being aggrieved by the order dated 19.10.2001 passed in C.W.J.C. No. 10534 of 1992 wherein the Hon ble Single Judge has allowed the writ application filed by the respondent no.10, Keshawant Singh directing that the said petitioner/present respondent no.10 would rank senior to the original respondents no. 5 to 10 and the respondent authorities were directed to make necessary corrections in the gradation list and to give to the said petitioner all consequential benefits on the basis of his seniority over the said private respondents. The appellant figured as respondent no. 6 in the original writ application.
2. The original writ petitioner filed the writ application challenging the gradation list of Drug Inspectors of 72-73 batch contained under Memo. No. 1619 (15) dated 30.9.1992 (Annexure-14) issued by the Joint Secretary in the Department of Health. In the said gradation list the petitioner was shown at Sl. No. 7 junior to the original respondents no. 5 to 10, who were placed at Sl. Nos. 1 to 6 in the list. During pendency of the writ application the original petitioner filed two amendment applications seeking to challenge Annexure-21, notification dated 14.10.1998 under which the original respondent no.6 (present appellant) in addition to his substantive post of Drug Inspector was given the additional charge of the post of Assistant Drugs Controller, Bihar; and under the second application the petitioner sought to challenge the final gradation list of the Drug Inspectors issued under notification dated 27.2.2001 (Annexure-29) wherein the petitioner is shown at Sl. No. 12 while the original respondents No. 5 to 10 were placed at Sl. Nos. 6 to 11. From the order passed by the learned Single Judge it appears that both the applications were allowed.
3. Vide advertisement No. 79/1969 the Bihar Public Service Commission to fill-up a single post of Chief Hospital Pharmacist. The petitioner who fulfilled requisite qualification etc. submitted his candidature, was selected and recommended for appointment by the Commission. The recommendations were accepted and the Deputy Secretary to the Government, for and on behalf of the Governor issued notification/memo. No. 3177(2) dated 1.9.1970 (Annexure-1). By this notification in exercise of the powers under Section 21 read with Section 3(e)(ii) of the Drugs and Cosmetics Act, 1940 the appropriate Government appointed the petitioner as Chief Hospital Pharmacist in Darbhanga Medical College and Hospital on temporary basis for a period of six months from the date of his joining the post. On 8.3.1971 (Annexure-2) issued in exercise of powers under Section 21 read with Section 3(e) (ii) of the Act, before completion of the above referred six months period the petitioner was posted temporarily on the post of Chief Hospital Pharmacist on a regular basis with effect from 14.3.1970.
4. While the petitioner was occupying the post of Chief Hospital Pharmacist, the Commission issued yet another advertisement No. 47/1971 for filling-up a number of post of Drug Inspectors. The advertisement clarified that the post of the Drug Inspector was to carry the same pay scale as that of Chief Hospital Pharmacist. The Government required that the minimum qualification should be in accordance with Rule 49 of the Drugs and Cosmetics Rules, 1945, which apart from a degree in Pharmacy provided for other qualifications. The petitioner who was already occupying the office/post of Chief Hospital Pharmacist temporarily at Darbhanga Medical College and Hospital made an application in response to the said advertisement No. 49/1991. After submission of his application the Department forwarded the same to the Commission. The Commission entertained the application and treated the petitioner as one of the candidates in response to Advertisement No. 47/1971. At that point of time everybody appears to be oblivious of
