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1996 Supreme(Gau) 208
GAUHATI HIGH COURT
M.Sharma, J.
Association of Inspectors of Drugs, Assam:Chandranath Bhattacharjee:Partho Jyotigogoi : -Appellant
Versus
State of Assam and Ors. -Respondent
Civil Rule Nos. 5458 of 1995,144,444 and 1563 of 1996
Decided On : 07-09-1996
A.K Sharma, B.Banerjee, B.D.Das, M.I.Sharma, R.Barua, A.R.Barthakur, P.Barman, K.N.Choudhary, H.K.Sharma, D.K.Mishra, Bina Tripathe, B.K.Sharma, P.Pathak
Rule 11(1) of the Assam Rules, 1994, is ultra vires, discriminatory, and violates Articles 14 and 16 of the Constitution of India.
Headnote:
DRUGS AND COSMETICS ACT, 1940 - RULES, 1945 - ASSAM DRUGS CONTROL ORGANISATION SERVICE RULES, 1994 - CIVIL RULES - COMBINED HEARING - EXAMINATION - ACT SECTIONS REFERRED - SUMMARY OF ACTS AND SECTIONS REFERRED - KEY LEGAL PROVISIONS - INTERPRETATIONS - COURT'S DECISION - MAIN LEGAL POINT - CATEGORY - SUB-CATEGORY.
Fact of the Case:
Four Civil Rules were heard together and taken for decision as they related to the examination of the Drugs and Cosmetics Act, 1940, the Rules, 1945 thereof, and the Assam Drugs Control Organisation Service Rules, 1994 (Assam Rules).
Finding of the Court:
1. Rule 11(1) of the Assam Rules, 1994, is ultra vires, discriminatory, and violates Articles 14 and 16 of the Constitution of India. Therefore, that provision of the Rule is struck off accordingly. 2. Rule 3 and 5 of the Rules 1994 have to include the Manufacturing and Testing Wing of the organization and make provisions for classification recruitment and promotion along with the personnel of Enforcing Wing and the rule requires to be amended keeping avenues for promotion of the Government Analysts keeping consistency with the statutory provisions of Rule 50A (ii), is required to amend the Rules, 1994 keeping provisions for the recruitment classification and promotion of the personnel from the two wings of the Organisation of Drugs of the State Government and keep avenues for promotion to the highest post of the organization for both the Senior Inspector/Assistant Drugs Controller and Government Analyst. 3. Respondent No.6 Mr. Gogoi is qualified and experienced to be appointed as Government Analyst and therefore his appointment for the whole State of Assam is legal and the appointment is made in compliance with the provisions of section 20 of the Act.
Issues: 1. Whether Rule 11(1) of the Assam Rules, 1994, is discriminatory and liable to be struck off as claimed by the writ petitioner in Civil Rule No. 1563 of 1996 (respondent No.6 in Civil Rule No.444 of 1996)? 2. Whether respondent No.6 Mr. Gogoi is qualified under the provision of section 20 (1) to be appointed as Government Analyst?
Ratio Decidendi: 1. The provisions of Rule 11 of the Assam Rules, 1994, are silent about the classification, recruitment, and promotional avenue of the other wings, namely manufacturing and testing wings. Being an wing of the organisation Government cannot make rules, depriving its other part of the organisation at the cost of the similarly situated personnel of the same organisation and take a discriminatory view. 2. Rule making authority should not change its mind to the vested right of one set of personnel to the advantage of others. A statute should not be construed to take away a vested right. 3. In a number of judicial pronouncements the Courts of law in India held that, the right of all parties stand to be measured by the Acts and Rules dealing therewith and that it is not permissible to have any preferential interpretation or adjustment of rights flowing from statute. 4. In the Assam Rules, 1994 non inclusion of the other wing is violative of the principle of service jurisprudence as well as Article 14 and 16 of the Constitution. 5. The provisions of Rule 11 is ultra vires, discriminatory and violates Article 14 and 16 of the Constitution of India. Therefore, that provisions of the Rule is struck off accordingly. 6. Rule 3 and 5 of the Rules 1994 have to include the Manufacturing and Testing Wing of the organisation and make provisions for classification recruitment and promotion along with the personnels of Enforcing Wing and the rule requires to be amended keeping avenues for promotion of the Government Analysts keeping consistency with the statutory a provisions of Rule 50A (ii), is required to amend the Rules, 1994 keeping provisions for the recruitment classification and promotion of the personnel from the two wings of the Organisation of Drugs of the State Government and keep avenues for promotion to the highest post of the organisation for both the Senior Inspector/Assistant Drugs Controller and Government Analyst. 7. Respondent No.6 Mr. Gogoi has more than 3 years experience in the testing of drugs in the laboratory under the control of a Government Analyst appointed under the Act and also under the head of Institution, testing laboratory. 8. The allegation of the writ petitioner Association is not sustainable that respondent No.6 is not an experienced person and that his appointment under section 20 of the Act is illegal.
Final Decision: 1. Civil Rule No. 5458 of 1995 is dismissed as infructuous. 2. Civil Rule No. 144 of 1996 and 444 of 1996 are dismissed on the ground stated above. 3. Civil Rule No. 1563 of 1996 is allowed.
2. Civil RuleNo.5458 of 1995 (Association of Inspector of Drugs vs. State of Assam) is the first case in which the petitioner Association of Inspector of Drugs claimed that in view of Rule 5 and 11 of the Assam Rules, 1994, the post of Drugs Controller, Assistant Drugs Controller and Senior Inspector of Drugs only and that relaxation be made under Rule 26 of the Assam Rules if and when the provisions of Rules causes undue hardship.
3. Civil Rule No. 144 of 1996 was preferred by the petitioner Shri Chandranath bhattacharjee, a B.Phama Degree holder joined the service under respondents authorities as a direct recruit as Inspector of Drugs on 7.7.88. He challenged the reemployment of C. Deb Roy (respondent No.4), Drugs Controller for a period of one year with effect from the date of his superannuation i.e. 1.2.95 to 31.1.96, as such reemployment had violated the mandatory provisions of Rule 11 of Assam Rules, 1994. It is submitted from the Bar that the said respondent No.4 subsequently reniewed his post before the expiry of the extended period and in that view of the matter as admitted bycounsel of both the parties the Civil Rule is infructuous and accordingly it is dismissed as infructuous. However as petitioner's prayer relates to the claim of promotion of the cadre under Rule 11 of the Assam Rules, this issue will be dismissed alongwith other writ petitions.
4. Writ petition No.444 of 1996 has been preferred by the Association of Inspector of Drugs challenging the appointment of respondent No.6 Shri PJ Gogoi as Drugs Analyst under section 20 of the Drugs and Cosmetics Act, 1940, vide notification No.HLA.321/93/17 dated 26.10.95 (Annexure A to the writ petition). The contention of the writ petitioner is that by the impugned notification, the respondent authority violated the mandatory provision of section 20 (1) of the Act, 1940 and the rules made thereunder in appointing the respondent No.6 who is not qualified to be appointed as Government Analyst for the entire State of Assam and therefore the appointment of respondent No.6 is liable to be set aside. Further the petitioner apprehends that the authority is making a move to appoint the respondent No.6 as Drugs Controller, who is not even otherwise qualified to be appointed as Government Analyst. Accordingly, it is contended, the petitioner Association has submitted a representation on 11.1.96 to the Commissioner and Secretary to the Government of Assam respondent No.2, in respect of filling up of the post of Drugs Controller Assam, which has been lying vacant since 1.2.96 under the provisions of the Assam Rules, 1994.
5. Civil Rule No. 1563 of 1996 has been filed by the petitioner Shri Partho Jyoti Gogoi, presently holding the post of Government Analyst for the entire State of Assam vide notification dated 26.10.95 (Annexure 7 to the writ petition). Before his appointment as Government Analyst petitioner was appointed as Chemist on 2.5.91 and thereafter, through Assam Public Service Commission, he was selected and appointed as Drugs Analyst on regular basis with effect Tom 15.3.93 (Annexure 4 to the writ petition). The contention of the petitioner is that he fulfills all the required qualification for the post of Government Analyst; that after completing his Post Graduate course in Pharmaceutical Science in 1989, was selected as Senior Research Scholar in September, 1989 and gained experience in the field manufacture, amifacture and testing of drugs both as Research Scholar as well as Chemist, Drugs Analyst and Government Analyst; that he has more than six years experience in the field of manufacture and drug testing; that under the guidance of his Research guide developed a number of products some of wh
