Delhi High Court

V.K.Mittal vs Uoi And Ors on 14 February, 2012

Author: A.K.Sikri

* IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of Decision : 14th February, 2012
+       W.P.(C) 8091/2011

       V.K.MITTAL                                            ..... Petitioner
                             Through     Mr. Vishal Singh, Adv.
                    versus

       UOI AND ORS                                         ..... Respondents

                             Through     Mr. Jatan Singh, CGSC with
                                         Mr. Rishi Kant Singh, Adv. for
                                         UOI.
       CORAM:
       HON'BLE THE ACTING CHIEF JUSTICE
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K. SIKRI, ACTING CHIEF JUSTICE: (ORAL)

In this writ petition, filed by way of public interest, the Petitioner is

challenging the recruitment rules for the post of Drug Controller of India.

It may be mentioned at the outset that the main grievance of the Petitioner

is that the aforesaid post of the Drug Controller, as per the relevant

recruitment rules, is to be filled up by deputation only and submission is

that having regard to the sensitive nature of the post and the importance of

the functions which the drug controller is required to discharge as per the

provisions of the Drugs and Cosmetics Act, 1940 (hereinafter referred to

as „the Act‟), it is not in public interest that such a post is filled up 100%

by deputation including short term contract. The Petitioner perceives so

many dangers in filling up of the post in the said manner.

2. Learned counsel for the Petitioner referred to Sections 5, 17, 17A,

17B of the Act to highlight the sensitive nature of the post of Drug

Controller. Referring to these provisions, it was argued that the post of

Drug Controller is highly technical in nature as it is his duty to regulate

the launch of new drugs, monitor the clinical trials and to supervise the

import of drugs in the country and their related standards. In terms of the

aforesaid provisions, the Drug Controller is both the licensing as well as

the controlling authority and is empowered to issue, suspend or cancel

licence with respect to manufacture of drugs and cosmetics, apart from the

role of regulator. He acts as a key member of the Consultative Committee

and Drug Technical Advisory Board, which are statutory in nature. It is,

thus, argued that the Drug Controller has very important functions to

discharge, which include laying down standard of drugs, cosmetics,

diagnostics and devices. He also acts as a regulator by making

amendments to the Acts and Rules and also regulates market and

authorization of new drugs. The argument is that for such a post

preference should be given to long tenure and appointment to this post,

should be made on regular basis. It is argued that by bringing the person

as Drug Controller by means of deputation, the period whereof may not

be certain, the very purpose of the post for which aforesaid important

functions are to be discharged by the Drug Controller, is defeated.

3. At this stage, we would like to refer to the relevant recruitment

rules for appointment to the post of Drug Controller of India. It is

pertinent to state that the recruitment rules are made by the President in

exercise of the powers conferred by the proviso to Article 309 of the

Constitution which prescribe the method of recruitment to the post of

Drug Controller (India). The Rules were made vide notification dated

14.6.2011 and are known as Central Drugs Standard Control Organization

[Drugs Controller (India)] Recruitment Rules, 2011 in the Directorate

General of Health Services. Rule 4 thereof mentions the „disqualification‟

and list out the persons who cannot be appointed as the Drug Controller.

There is one post of Drug Controller (India) as per the schedule attached

to these Rules. Method of recruitment is stated in column 11. As per

column 11, the post is to be filled with 100% deputation including short-

term contract. The qualifications are stated therein are to the following

effect:

"Deputation : (including short-term contract) : Officers under the Central/State Government/Union Territories/ Recognized Research Institutions/Public Sector Undertakings/Semi - Government/Autonomous/Statutory Organizations:

(a)(i) holding analogous posts on regular basis in the parent cadre / department; or

(ii) With 3 years‟ service in the grade rendered after appointment thereto on a regular basis in posts in Pay Band - 4 `37400-67000 with Grade Pay of `8700 or equivalent in the parent cadre / department; and

(b) possessing the following educational qualifications and experience;

(i) Graduate degree in Pharmacy or Pharmaceutical Chemistry or in Medicine with specialization in Clinical, Pharmacology or Microbiology from a recognized University established in India by law;

(ii) Postgraduate degree in Pharmacy/Pharmaceutical Chemistry / Biochemistry / Chemistry / Microbiology / Pharmacology from a recognized University or equivalent; and

(iii) 15 years‟ experience in manufacture or testing of drugs in a concern of repute or enforcement of the provisions of the Drugs and Cosmetics Act, 1940 and Rules.

Desirable (i) : Two years‟ experience in dealing with problems connected with drugs standardization and control and - import and export of Drugs, and/or administration of the Drugs and Cosmetics Act and Rules.

(ii) Ph.D. in Pharmaceutical Sciences

"Period of deputation including period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some or other organization department of the Central Government shall ordinarily not to exceed five years. The maximum age-limit for appointment by deputation (including short-term contract) shall be not exceeding 56 years, as on the closing date of receipt of applications."

Note : For the purpose of appointment on deputation (including short term contract) basis, the service rendered on a regular basis by an officer prior to 1-1-2006 (the date from which the revised pay structure based on the 6 th Central Pay Commission recommendations has been extended) shall be deemed to be service rendered in the corresponding grade pay / pay scale extended based on the recommendation of the Pay Commission except where there has been merger of more than one pre-revised scale of pay into one grade with a common grade pay / pay scale, and where this benefit will extend only for the post(s) for which that grade pay/pay scale is the normal replacement grade without up gradation."

4. The Rules also provide consultation with Union Public Service

Commission. As per the Rules, it would be necessary to consult with

Union Public Service Commission on each occasion when the

appointment is to be made to the aforesaid post. A reading of the column

relating to qualifications would reveal that there are essential

qualifications which cannot be relaxed and then there are desirable

qualifications which a candidate is required to possess. These

qualifications are inconsonance with Rules 49A and 50A of the Drugs and

Cosmetics Rules, 1945. It is also necessary to point out here that a person

with the aforesaid qualifications though appointed on deputation, the

deputation period is five years. When we keep in mind the essential and

desirable qualifications which are stipulated for this post and the tenure of

five years fixed for a person who is appointed through deputation, almost

all apprehensions of the Petitioner expressed in this petition are taken care

of. The essential qualifications disclose that a candidate who is to be

considered for this post is required to be holding analogous posts on

regular basis in the present cadre/department. This would mean that a

person who is already holding almost equivalent/similar posts on regular

basis in the parent cadre/department is considered for appointment to this

post on deputation. The prescription of minimum pay scale which is

almost equivalent to that of Drug Controller, further fortifies this.

Educational qualifications and experience mandate that such a candidate

should have a graduate degree in Pharmacy or Pharmaceutical Chemistry

or in Medicine with specialization in Clinical, Pharmacology or

Microbiology from a recognized University established in India. He

should also have a postgraduate degree in Pharmacy in the aforesaid

disciplines from a recognized University or equivalent. Not only this, the

eligibility condition further prescribes 15 years experience in manufacture

or testing of drugs in a concern of repute or enforcement of the provisions

of the Act and Rules contained therein. When we look into the desirable

qualifications contained in these Rules, a candidate is expected not only to

have two years experience in dealing with problems connected with drugs

standardization and control but also the import and export of drugs and/or

administration of the Act and Rules. A candidate with Ph.D. in

Pharmaceutical Sciences is to be given preference. Thus, a person who

possesses these essential and desirable qualifications would necessarily

not only have requisite educational qualifications but experience in this

very field for which he would take charge as Drug Controller. As

mentioned above, the 15 years experience in manufacture or testing of

drugs in a concern of repute or enforcement of the provisions of the Act

and Rules as well as administration of the Act and Rules is also

prescribed.

5. No doubt a person who is selected for this post comes on

deputation but at the same time deputation period is five years. Once a

person is appointed on deputation for a period of 5 years, the tenure is

secured. We may note that one of the arguments of learned counsel for

the Petitioner was that a person who comes on deputation can always be

sent back prematurely and there is no security of tenure. However, it is

necessary to state that if once a particular tenure of deputation is fixed,

this tenure cannot be cut short prematurely without any justifiable cause.

In Union of India v. V. Ramakrishnan, (2005) 8 SCC 394 the Apex

Court has held thus:

"32. Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post-haste manner also indicates malice. [See Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia, (2004) 2 SCC 65, para 25]"

6. It is clear from the aforesaid that in case the tenure is shortened

without any sufficient cause or in an arbitrary manner, such a

deputationist has a right to challenge this action. Furthermore, merely

because a person who is on deputation can be sent back at the will of the

post department would not be a ground to hold that such a Rule is bad in

law. It is for the employer to lay down the Rule for appointment to a

particular post unless the Rules are found to be discriminatory or against

the provisions of the Act/Constitution, this Court cannot sit in judicial

review and determine as to whether such a Rule is bad or there could have

been a better Rule for appointment. These matters are to be left to the

expert bodies and/or the employer. We, thus, find no merit in this writ

petition which is accordingly dismissed. We record here that learned