Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 526

SUPREME COURT OF INDIA
Arun Mishra, Navin Sinha, JJ.
THE MAHARASHTRA PUBLIC SERVICE COMMISSION THROUGH ITS SECRETARY – APPELLANT(S)
VERSUS
SANDEEP SHRIRAM WARADE AND OTHERS – RESPONDENT(S)
CIVIL APPEAL NO(s). 4597 OF 2019 (arising out of SLP (Civil) No(s). 8494 of 2018)
WITH
THE MAHARASHTRA PUBLIC SERVICE COMMISSION THROUGH ITS SECRETARY – APPELLANT(S)
VERSUS
SUHAS SUDHAKARRAO LAVHEKAR AND OTHERS ETC. ETC. – RESPONDENT(S)
CIVIL APPEAL NO(s). 4598-4601 OF 2019 (arising out of SLP (Civil) No(s). 1162629 of 2019) (Diary No.30422/2017)
ASHOK TUKARAM BARDE – APPELLANT(S)
VERSUS
THE MAHARASHTRA PUBLIC SERVICE COMMISSION THROUGH ITS SECRETARY AND OTHERS – RESPONDENT(S)
CIVIL APPEAL NO(s). 4602 OF 2019 (arising out of SLP (Civil) No(s). 11631 of 2019) (Diary No.20959/2018)
Decided on : 03-05-2019

Advocates Appeared:
For the Parties Mr. Sanjay Kharde, Advocate, Mr. Samrat Shinde, Advocate, Mr. Sunil Kumar Verma, Advocate, Mr. Somiran Sharma, Advocate, Mr. Amol B. Karande, Advocate, Mr. Vijay Khmkar, Advocate, Mr. Rajsaheb Patil, Advocate, Mr. Gurmeet Singh Makker, Advocate, Mr. Nishant Ramakantrao Katneshwarkar, Advocate, Mr. Satyajit A. Desai, Advocate, Ms. Anagha S. Desai, Advocate, Mr. Sandeep Sudhakar Deshmukh, Advocate

IMPORTANT POINTS
Court cannot lay down the conditions of eligibility.
Questions of equivalence also fall outside the domain of judicial review.
Examination of documents by an expert committee before calling the candidates for interview cannot operate as an estoppel against terms of advertisement to render an ineligible candidate eligible for appointment.
Preferential qualification cannot be equated with essential qualification.

Headnote:(a) Service law - Recruitment - Eligibility conditions - Within purview of employer - Court cannot lay down the conditions of eligibility - Cannot delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretative re-writing of the advertisement - Questions of equivalence will also fall outside the domain of judicial review. (Para 10)
       (b) Service law - Recruitment - Examination of documents by an expert committee before calling the candidates for interview - Cannot operate as an estoppel against terms of advertisement to render an ineligible candidate eligible for appointment. (Para 11)
       (c) Drugs and Cosmetics Act, 1961 - Section 3(f) - Manufacture - Advertisement requiring experience in manufacturing or testing of drugs - Experience of testing has to be correlated to the manufacturing process - Testing of drugs in a research and development laboratory would not be at par with testing done at the time of manufacture before sale. (Para 13)
       (d) Service law - Recruitment - Advertisement requiring experience in manufacturing or testing of drugs - Experience in testing in research laboratory to be given preference - A candidate having requisite experience of testing in a research and development laboratory cannot claim to possess the essential eligibility and a preferential right to be considered for appointment. (Para 14)
       (1996) 6 SCC 282 - Relied upon
       Facts of the case:
       Respondents submitted that they were Post Graduates (M. Pharma) having more than three years experience in research and development coupled with testing of drugs in a laboratory. They were also eligible to be considered for appointment to the post of Assistant Commissioner (Drugs) and Drug Inspectors and were called for selection after scrutiny of their documents by a Committee constituted for the purpose and which recommended them as eligible for consideration. Once they were consciously permitted to participate in the selection process, they could not be declared ineligible for consideration.
       The Maharashtra Administrative Tribunal in O.A. No. 820 of 2013 held that experience of manufacturing or testing in a research and development laboratory could not be termed as experience for the purposes of the present recruitment. The said experience only entitled the candidate for a preference subject to possessing the basic eligibility and requisite experience in the manufacture and testing of drugs.
       The High Court reversed the order of the Tribunal.
       Finding of the Court:
       Impugned judgment is not sustainable.
       Result: Appeals allowed.

JUDGMENT

Navin Sinha, J.

Delay condoned. Leave granted.

2. The appellants are aggrieved by the orders of the High Court holding that candidates possessing the requisite years of experience in research and development of drugs and testing of the same, are also eligible to be considered for appointment to the post of Assistant Commissioner (Drugs) and Drug Inspectors under separate advertisements dated 04.01.2012 and 31.03.2015.

3. Learned counsel for the appellants submitted that academic qualifications coupled with the requisite years of practical experience in the manufacturing and testing of drugs were essential qualifications for appointment. Research experience in a research and development laboratory was a desirable qualification which may have entitled such a person to a preference only. The latter experience could not be equated with and considered to be at par with the essential eligibility to be considered for appointment. The High Court erred in misreading the advertisement to redefine the desirable qualification as an essential qualification by itself.

4. Learned counsel for the respondents submitted that they were Post Graduates (M. Pharma) having more than three years experience in research and development coupled with testing of drugs in a laboratory. They were also eligible to be considered for appointment and were called for selection after scrutiny of their documents by a Committee constituted for the purpose and which recommended them as eligible for consideration. Once they were consciously permitted to participate in the selection process, they could not be declared ineligible for consideration. Reliance was placed on the definition of manufacturing process in Section 3(f) of the Drugs and Cosmetics Act, 1961 (hereinafter called "the Act"). No other grounds were urged by the parties.

5. The Maharashtra Administrative Tribunal (hereinafter referred to as "the Tribunal") in O.A. No. 820 of 2013 held that experience of manufacturing or testing in a research and development laboratory could not be termed as experience for the purposes of the present recruitment. The said experience only entitled the candidate for a preference subject to possessing the basic eligibility and requisite experience in the manufacture and testing of drugs.

6. Reversing the conclusion of the Tribunal, the High Court in W.P. No. 6637 of 2014 and analogous cases held that to deny opportunity to a candidate possessing research experience in synthesis and testing of drugs in a laboratory on the ground that such research experience cannot be linked with manufacturing, would be a perverse interpretation. A candidate having research experience in synthesis and testing of drugs in a laboratory needed to be preferred and could not be denied opportunity by misreading the eligibility conditions. Research work carried out in well reputed laboratories is for the purposes of manufacturing drugs. This order was followed by the High Court in W.P. No. 7960 of 2016 instituted before the High Court directly.

7. We have considered the respective submissions. It is considered prudent to first set out Section 3(f) of the Act and the extract of the advertisements.

"3(f) "manufacture" in relation to any drugs (or cosmetic) includes any process or part of a process for making, altering, ornamenting, finishing, packing, labelling, breaking up or otherwise treating or adopting any drug or cosmetic with a view to its sale or distribution but does not include the compounding or dispensing of any drug or the packing of any drop or cosmetic in the ordinary course of retail business and to manufacture shall be construed accordingly."
8. The qualifications in the advertisement dated 04.01.2012 for Assistant Commissioner (Drugs) reads as follows:
"(b) Possess qualification and experience prescribed for as under: -
(i) Degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in Clinical Pharmacology or Microbiology from a University established in India by

Click Here to Read the rest of this document

2019 Supreme(SC) 526

Cases Referred (1)