The State Government has the authority to prescribe Rules under Article 309 of the Constitution for the appointment of Drug Inspectors.

The petitioner claims to be qualified for the post of Pharmacist holding a Degree in Bachelor of Pharmacy and also had registered his name with the Tamil Nadu Pharmacy Council. He had also registered his name in the Employment Exchange. He claims that he is also having sufficient experience in the field of drug manufacturing and inspection of manufacturing units.

2. He applied for the post of Drug Inspector and was once called for an interview by the Union Public Service Commission, New Delhi. He was not selected on merits. He is now 42 years old and had crossed the age for making any application for the post in the State service.

3. The petitioner after coming to know of advertisement given by the Tamil Nadu Public Service Commission, namely the 4th respondent vide its Notification/advertisement No.198 published in THE HINDU newspaper dated 4. 2009 has filed the present Writ Petition.

4. A copy of the said advertisement is enclosed in the typed set of papers. The said advertisement called for applications for the post of Drug Inspectors in respect of 24 vacancies. The educational qualification prescribed in para 4(B) reads as follows:

"(B) Educational Qualifiction: Candidates should possess on the date this Notification, viz., 4. 2009, the following or its equivalent qualification awarded by a University or Institution recognised by the University Grants Commission for the purpose of its grant.

A Degree in Pharmacy or Pharmaceutical Sciences or a Degree in Medicine with specialisation in Clinical Pharmacology or Microbiology.

Persons claiming equivalent of qualification should enclose evidence for such claims."

The applicants were subjected to written examination and viva voce test. For selection, rules of reservation also has been prescribed.

5. The grievance of the petitioner is that the qualification prescribed in the advertisement by the Tamil Nadu Public Service Commission is not in conformity with proviso to Rule 49 of the Drugs and Cosmetics Rules, 1945. The said Rule reads as follows:

"49. Qualification of Inspectors:- A person who is appointed an Inspector under the Act shall be a person who has a degree in Pharmacy or Pharmaceutical Sciences or Medicine with specialisation in Clinical Pharmacology or Microbiology from a University established in India by law:

Provided that only those Inspectors:-

.(i) who have not less 18 months experience in the manufacture of at lease one of the substances specified in Schedule C; or

.(ii) who have not less than 18 months experience in testing of at least one of the substances in Schedule C in a Laboratory approved for this purpose by the licensing authority; or

(iii) who have gained experience of not less than three years in the inspection of firms manufacturing any of the substances specified in Schedule C during the tenure of their services as Drugs Inspectors; shall be authorised to inspect the manufacture of the substances mentioned in Schedule C;

(Provided further that the requirement as to the academic qualification shall not apply to persons appointed as Inspectors on or before the 18th day of October, 1993.)(Emphasis added)”.

6. According to the petitioner, the advertisement though prescribes educational qualification in terms of the Rule, in so far as it did not include the prescription of minimum experience provided therein, the advertisement is ultra vires of the Drugs and Cosmetics Rules, 1945 and the Drugs and Cosmetics Act, 1940.

7. Pending the Writ Petition, the petitioner was able to persuade this Court for an interim order, stating that the proviso to Rule 49 of the Drugs and Cosmetics Rules, 1945 has not been incorporated in the advertisement. On being persuaded that the proviso to Rule 49 was not incorporated in the said advertisment, an interim order was granted by this Court.

8. On notice from this Court, the 4th respondent has filed a counter affidavit dated 7. 2009. They have also produced an order of the Government in G.O.Ms.No.74, Healt