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IN THE HIGH COURT OF ALLAHABAD
ATTAU RAHMAN MASOODI, J.
Ashish Tyagi & Ors. – Appellants
Versus
State Of U.P.Thru.Prin.Secy.Food Safety & Drug Admin. & Anr. – Respondents
Service Single No.262 of 2021
Decided on : 08-01-2021
Drugs and Cosmetics Rules, 1949 - Rule 49 - Service Rules - Rule-8 - Drugs and Cosmetics Act, 1940 - Section 33 r/w Section 21 - Indian Penal Code, 1860 - Section 21 – Service matter – Inspectors – Advertisement - Qualifications of Inspectors - Qualifications and duties of Government Analysts - A conjunctive reading of above provisions on its plain reading would show that Central Government within its concurrent domain of legislation has exhausted legislative power on aspect of prescribing essential eligibility qualifications for selection - There is no scope open to the State Government for fixing a different or additional recruitment criteria of Drug Inspectors - Once area of primary legislation is exhausted by Central Government and rules are made, legislative competence of State or its rule making authority stands eclipsed to extent of inconsistency
Facts of the case: It is strange to note that advertisement stated to have been issued on 10.08.2016 is in teeth of full bench judgment rendered by this Court in a bunch of writ petitions leading case being W.P. decided - Petitioners have asserted that their exclusion from zone of consideration has occasioned on account of the incorporation of condition of experience in advertisement, although except petitioner no.1 other petitioners have failed to apply - It is also stated that Commission on account of this anomaly had not proceeded with process of selection for about four years - Selection process through interviews adhering to same conditions was reiterated and notified by letter - Petitioners having come to know about faulty process have thus approached this Court.
Findings of the court: Advertisement issued by the U.P. Public Service Commission on 10.8.2016 as per amended Rule-8 of Service Rules lacks authority and being inconsistent with Rule-49 of Drugs and Cosmetics Rules, 1945, same is liable to be set aside and is accordingly set aside - Selection held in pursuance thereof is also set aside with liberty open to State to issue a fresh advertisement or corrigendum inviting applications from eligible candidates having regard to the prescribed qualifications as per Rule 49 of Drugs and Cosmetics Rules, 1949 - U.P. Public Service Commission being selection body, is also expected to proceed in accordance with law, as applicable.
Result: Writ petition is allowed.
JUDGMENT :
It is strange to note that the advertisement stated to have been issued on 10.08.2016 is in the teeth of full bench judgment rendered by this Court in a bunch of writ petitions leading case being W.P.No.46079 of 2010 decided on 10.04.2014.
The petitioners have asserted that their exclusion from the zone of consideration has occasioned on account of the incorporation of the condition of experience in the advertisement, although except petitioner no.1 the other petitioners have failed to apply. It is also stated that the Commission on account of this anomaly had not proceeded with the process of selection for about four years. The selection process through interviews adhering to the same conditions was reiterated and notified by letter dated 24.12.2020. The petitioners having come to know about the faulty process have thus approached this Court.
It is well settled that every advertisement for recruitment in public service must proceed strictly in accordance with the statutory rules. In the present case the full bench judgment which ought to have been adhered to for this purpose also seems to have been side tracked for no valid reason and thereby the zone of consideration is sought to be frozen. All the petitioners are possessed with the requisite eligibility since prior to the date of advertisement, therefore, it cannot be said that the requisite qualification was acquired by the petitioners after the date of advertisement.
The delay in approaching this Court is a circumstance unfavourable to the petitioners but an illegality going to the root of the process of selection cannot be viewed lightly by this Court.
In the circumstances of the case, the petitioners are permitted to make a representation to the opposite party no.1 within a period of ten days' from today. In case a representation is filed, the same shall be decided by the opposite party no. 1 passing a reasoned and speaking order. The order so passed be communicated to the petitioners without any delay.
Until decision on the representation filed by the petitioners, the selection held, if any, may not be acted upon.
The writ petition is accordingly disposed of.”
1. Before the aforesaid order could be signed, Sri Ashok Shukla, learned counsel for U.P. Public Service Commission brought to the notice to this Court an amendment made in the relevant Service Rules, 1995 notified on 18.11.2015 titled as U.P. Food and Drug Administration Department Gazetted Officers’ (Drugs) Service (Third Amendment) Rules, 2015. This amendment brought in the parent rules has been promulgated in exercise of the powers under Article 309 of Constitution of India. The comparative position of the relevant provision i.e. Rule-8 is reproduced below.
| COLUMN-1 Existing Rule | COLUMN-2 Rule as substituted |
| 8. Academic qualification A candidate for direct recruitment to the post of Inspector of Drugs must possess such qualifications as have been prescribed under Rule49 of the Drugs and Cosmetics Rules, 1945 made by the Central Government in accordance with the provisions contained in section 21 of the Drugs and Cosmetics Act, 1940.
| 8. Academic qualification A candidate for direct recruitment to the post of Inspector of Drugs must possess the following qualification: (i) Degree in Pharmacy or Pharmaceutical Sciences or Medicine with specialization in Clinical Pharmacology or Microbiology or equivalent from a recognized University; (ii) (a) Eighteen months experience in the manufacture of at least one of the substances specified in Schedule"C" to the Drug and Cosmetics Rules, 1945; or (b) Eighteen months' experience in testing of atleast one of the substances specified in Schedule 'C' to the Drugs and Cosmetics Rules, 1945 in a laboratory approved for this purpose by the licensing authority; |
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....
State rules cannot prescribe qualifications conflicting with Central rules regarding appointments, leading to the conclusion that qualifications related to experience are not valid for initial recrui....
The State can prescribe additional qualifications for Drug Inspectors beyond the minimum qualifications set by Central rules without contravening them.
State governments cannot impose additional qualifications for Drug Inspectors as the field is occupied by Central legislation, rendering such state rules invalid.
Repugnancy under Article 254 arises only if both Parliamentary (or existing law) and State law are referable to List III in Seventh Schedule to Constitution of India.
The court established that amendments to recruitment rules can change the selection process, and the discretion of the recruiting agency in determining the method of selection is upheld unless found ....
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