Punjab-Haryana High Court
Krishan Kumar vs State Of Haryana And Anr on 9 September, 2022
CWP No.15067 of 2020 (O&M) & Connected cases
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Pronounced on : 09.09.2022
1) CWP No.15067 of 2020 (O&M)
Krishan Kumar ...Petitioner
Versus
State of Haryana and another ...Respondents
2) LPA No.700 of 2020 (O&M)
Amit Lathar ....Appellant
Versus
State of Haryana and others ...Respondents
3) CWP No.16790 of 2020
Neetu Deshwal .....Petitioner
Versus
State of Haryana and another ...Respondents
4) CWP No.20396 of 2020
Dr. Kuldeep Malodia .....Petitioner
Versus
State of Haryana and another ...Respondents
5) CWP No.12963 of 2021
Vikas .....Petitioner
Versus
State of Haryana and another ...Respondents
6) CWP No.17198 of 2021
Sompal ....Petitioner
Versus
State of Haryana and another ...Respondents
7) CWP No.12517 of 2021
Dr. Naresh Kumar .....Petitioner
Versus
State of Haryana and another ....Respondents
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CWP No.15067 of 2020 (O&M) & Connected cases
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
HON'BLE MR. JUSTICE ARUN MONGA
HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Keshav Pratap Singh, Advocate with
Mr. Vishal Singh, Mr.Namish Sodhi, Mr. Anmol Puri,
Mr. D.S.Walia, Mr. Yatin Sharma and Ms. Tanu Priya Singh,
Advocates for the petitioner (in CWP No.15067 of 2020) and
for the appellant in LPA No.700 of 2020).
Mr. Rajat Mor, Advocate
for the petitioner(s) (in CWP No.16790 of 2020).
Mr. Roopak Bansal, Advocate
for the petitioner(s)
(in CWP Nos.20396 of 2020, 12517 and 12963 of 2021).
Mr. B.K. Bagri, Advocate with
Mr. Narender Kumar Sharma, Advocate
for the petitioner(s) (in CWP No.17198 of 2021).
Mr. B.R. Mahajan, Advocate General, Haryana, with
Mr. Jagbir Malik, Addl. A.G. Haryana and
Ms. Nikita Goel, Advocate
for respondent No.1-State of Haryana.
Mr. Kanwal Goyal, Advocate
for respondent No.2 (in CWP No.15067 of 2020).
Mr. Govind Goel, Advocate
for respondent No.6 (in CWP-15067-2020).
Mr. R.K. Malik, Senior Advocate with
Mr. Sandeep Dhull, Mr. Sunil Hooda, Advocates
for respondents No.3 to 8 (in CWP No.15067 of 2020).
Mr. Balvinder Sangwan, Advocate
for respondent No.2 (in CWP No.12517 of 2021).
Mr. Aditya Gautam, Advocate
for respondent No.2 (in CWP No.16790 of 2020).
Ms. Harpriya Khaneka, Advocate
for respondent No.2 (in CWP No.12963 of 2021).
Mr. Sanjiv Gupta, Advocate
for the applicant(s) (in CM Nos.13562 and 13563 of 2021).
*****
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CWP No.15067 of 2020 (O&M) & Connected cases
AUGUSTINE GEORGE MASIH, J.
CM No.13562-CWP of 2021
Prayer in this application is for impleadment of applicant -
Dr. Suresh Kumar son of Shri Dalip Singh as respondent No.9, being a
selected candidate in pursuance to the advertisement which has been
impugned in the writ petitions.
For the reasons stated in the application, the same is allowed.
Dr. Suresh Kumar son of Shri Dalip Singh is impleaded as respondent
No.9, subject to all just exceptions. Amended memo of parties appended
along with the application is taken on record. Registry is directed to place
the same at appropriate stage of the case.
CM No.13551-CWP of 2021
Prayer in this application is for placing on record photocopy
of a letter dated 08.09.2009 as Annexure A-1.
For the reasons stated in the application, the same is allowed.
Copy of letter dated 08.09.2009 is taken on record as Annexure A-1,
subject to all just exceptions.
Main Cases
A Division Bench of this Court had referred this matter in
Krishan Kumar's case (supra) to the Larger Bench vide order dated
25.08.2021 leading to the constitution of this Bench. The said order dated
25.08.2021 reads as follows:-
"The petitioner has filed this writ petition under Article
226 of the Constitution for quashing the essential
qualification as prescribed in advertisement dated
7.9.2015 (Annexure P-1) for appointment to the post of
Drug Inspector (Drug Control Officer) further for
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quashing part of Serial No.11 Appendix B under Rule
7 of the Notification issued by Food and Drugs
Administration Department, Haryana Government
dated 13.11.2018 (Annexure P-10) (Haryana Food and
Drugs Administration Department, Subordinate Office
(Group-B) Service Rules, 2018) inter alia as the same
is contrary to Rule 49 of the Drugs and Cosmetics
Rules, 1945.
The impugned notification dated 13.11.2018
(Annexure P-10) was issued by Governor in exercise
of the powers conferred by the proviso to Article 309
of the Constitution of India.
In A.B. Krishna v. State of Karnataka; (1998) 3 SCC
495, Hon'ble Apex Court observed as follows:
"5. Rule-making power, so far as services under the
Union or any State, are concerned, are vested in the
President or the Governor, as the case may be, under
Article 309 of the Constitution which provides as
under:-
"309. Recruitment and conditions of service of
persons serving the Union or a State - Subject to
the provisions of this Constitution, Acts of the
appropriate Legislature may regulate the
recruitment, and conditions of service of persons
appointed, to public services and posts in
connection with the affairs of the Union or of
any State: Provided that it shall be competent for
the President or such person as he may direct in
the case of services and posts in connection with
the affairs of the Union, and for the Governor of
a State or such person as he may direct in the
case of services and posts in connection with the
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affairs of the State, to make rules regulating the
recruitment, and the conditions of service of
persons appointed, to such services and posts
until provision in that behalf is made by or under
an Act of the appropriate Legislature under this
article, and any rules so made shall have effect
subject to the provisions of any such Act."
6. It is primarily the Legislature, namely, the
Parliament or the State Legislative Assembly, in whom
power to make law regulating the recruitment and
conditions of service of persons appointed to public
services and posts, in connection with the affairs of the
Union or the State, is vested. The legislative field
indicated in this Article is the same as is indicated in
Entry 71 of List I of the Seventh Schedule or Entry 41
of List II of that Schedule. The proviso, however, gives
power to the President or the Governor to make
Service Rules but this is only a transitional provision
as the power under the Proviso can be exercised only
so long as the Legislature does not make any Act
whereby recruitment to public posts as also other
conditions of service relating to that post are laid
down.
7. The Rule-making function under the Proviso to
Article 309 is a legislative function. Since Article 309
has to operate subject to other provisions of the
Constitution, it is obvious that whether it is an Act
made by the Parliament or the State Legislature which
lays down the conditions of service or it is the Rule
made by the President or the Governor under the
Proviso to that Article, they have to be in conformity
with the other provisions of the Constitution specially
Articles 14, 16, 310 and 311."
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An intractable question has arisen in the present writ
petition in view of provisions of Drugs and Cosmetics
Act, 1940 and Notification dated 13.10.2018,
Annexure P-10, issued by the State Government under
Article 309 of the Constitution of India in a matter
relating to recruitment of Drug Control Officers.
Though, Section 21 of Drugs and Cosmetics Act, 1940
clearly lays down that appointment shall be made as
per the qualifications prescribed, which would
normally indicate the qualifications prescribed in
Central statute. However, State Government invoked
Article 309 of the Constitution of India and prescribed
qualifications different from that prescribed by the
Central Government. Though, undisputedly, the matter
falls in the realm of List III, the State Government
never choose to enact its legislation. Merely, for the
purpose of laying down qualification, it invoked
Article 309 of the Constitution of India. In such
circumstances, it needs to be examined whether
invocation of such powers would be sustainable in law;
whether it would be hit by doctrine of eclipse; whether
notification needs to be examined in light of provisions
of Article 252 and 254 of Constitution of India. There
is no clear answer forthcoming in the judgments
referred to by the parties, particularly, 'Priyanka and
others versus UPSC and others, passed in CWP-14287
of 2013. There is one another judgment of this Court in
LPA-1778-2016 Sachin Saggar v. State of Punjab and
others decided on 15.9.2016. However, the rules
framed by Punjab Government regarding appointment
of Drug Inspectors are in conformity with Rule 49 of
Drugs & Cosmetics Rules, 1945 framed by Central
Government, which is not so in State of Haryana. In
State of Haryana, the experience prescribed in proviso
to Rule 49 of Rules of 1945 framed by Central
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Government, has been made one of the essential
qualifications for appointment as a Drug Inspector.
There appears to be little doubt that the Drugs and
Cosmetics Act, 1940 enacted by the Parliament under
Central Statute is a complete legislation on the subject.
Section 21 thereof reads as under:-
"21. Inspectors.--
(1) The Central Government or a State Government
may by notification in the Official Gazette, appoint
such persons as it thinks fit, having the prescribed
qualifications, to be Inspectors for such areas as may
be assigned to them by the Central Government or the
State Government, as the case may be.
(2) The powers which may be exercised by an
Inspector and the duties which may be performed by
him, the drugs or [classes of drugs or cosmetics or
classes of cosmetics] in relation to which and the
conditions, limitations or restrictions subject to which,
such powers and duties may be exercised or performed
shall be such as may be prescribed.
(3) No person who has any financial interest [in the
import, manufacture or sale of drugs or cosmetics]
shall be appointed to be an Inspector under this section.
(4) Every Inspector shall be deemed to be a public
servant within the meaning of section 21 of the Indian
Penal Code (45 of 1860), and shall be officially
subordinate to such authority 4[having the prescribed
qualifications,] as the Government appointing him may
specify in this behalf."
Section 33 of the Drugs and Cosmetic Act, 1940
empowers the Central Government to frame Rules
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under the Act. In exercise of the powers conferred by
Section 33 of the Act, the Central Government framed
the Drugs and Cosmetics Rules, 1945. Rule 49 of the
said Rules prescribes the qualification for appointment
to the posts of Drug Inspectors. Rule 51 authorises
certain Drug Inspectors to inspect the premises
licensed for sale of drugs whereas Rule 52 authorises
Drug Inspectors to inspect the manufacture of drugs or
cosmetics. However, there is not even a whisper in the
impugned advertisement dated 7.9.2015 as to whether
Drug Inspectors (Drug Control Officers) are being
appointed for the purpose of performing duties as
prescribed under Rule 51 or Rule 52. Further, in the
present case, the State invoked Article 309 of the
Constitution prescribing essential qualifications for
such appointments, which are at variance to those laid
down in the Central Statute. Article 309 of the
Constitution was invoked for the limited purpose of
prescribing different qualifications. For all intents and
purposes if the Central Act prevails, the experience as
laid down in the proviso would not be essential
qualification. However, if notification issued by the
State under Article 309 of the Constitution is given
effect to then experience become necessary and
candidate not possessing the same cannot be
considered eligible.
An important question therefore arises (1) whether
State Government could have acted beyond the
statutory provisions contained in the Central Act i.e.
Sections 21 and 33 of the Act and Rules framed
thereunder, prescribing qualifications and invoking
Article 309 for this purpose.
While in the Rules of 1945, (2) whether the experience
as contained in the proviso to Rule 49 of the 1945
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Rules, whereas in the Rules framed by the State under
Article 309 of the Constitution, the experience has
been made as essential qualification. Therefore,
another question arises (3) whether the Rules framed
by the State under Article 309 of the Constitution
would have overriding effect over the rules framed
under Central Statue, the primary legislation governing
the recruitment of Drug Inspectors.
A larger Bench needs to be constituted to decide these
questions. The application for vacation of stay be put
up before the said Bench."
Krishan Kumar's writ petition with five other writ petitions
and a Letters Patent Appeal, as mentioned in the heading, have been listed
for decision and are, thus, being considered accordingly along with the
Reference.
2. Learned counsel for the petitioners, who were led by Mr.
Keshav Pratap Singh, Advocate, with reference to Section 103 of the
Government of India Act, 1935 (hereinafter referred to as '1935 Act'),
submits that the State Legislature has foregone its powers to amend or
make rules, much less the service rules qua the post of Drug Inspector (In
Haryana, named as 'Drugs Control Officer') governed under Chapter IV of
the Drugs and Cosmetics Act, 1940 (hereinafter referred to as '1940 Act').
He contends that once the resolution has been passed by the Provincial
Legislature and the Central Legislature had proceeded to pass an Act,
there would be no power left with the Provincial Legislature to amend or
repeal the said legislation qua its own territory even if it falls within the
Provincial Legislative List. His contention is that Section 103 of the 1935
Act is pari materia with Article 252 of the Constitution of India, where it
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has further been clarified under Article 252 (2). After coming into force
the Constitution, the Acts which were in force on the said day, have been
protected and saved by virtue of Article 372 of the Constitution of India.
With the State Legislature ceasing to have any share/power in respect of
the matter, which has been surrendered by way of a resolution, Parliament
alone would be authorized and entitled to legislate with respect to it
irrespective of the fact whether the said item falls in List II or III of
Schedule VII of the Constitution. In support of this contention, he has
placed reliance upon the judgments of the Hon'ble Supreme Court in M/s
R.M.D.C. (Mysore) Private Ltd. Vs. State of Mysore AIR 1962 (SC)
594, Union of India Vs. Valluri Basavaiah Chouwdhary, (1979) 3 SCC
324 and Thumati Venkaiah etc. Vs. State of A.P. (1980) 4 SCC 295.
3. His further submission is that as per Section 33 of the 1940
Act, Central Government alone has been specifically empowered to make rules
for the purpose of giving effect to the provisions of the Chapter in which the
said Section exists i.e. Chapter IV. On this basis, he contends that no State
Government has the power to make rules under the 1940 Act. Had there been
such an intention, it would have been so provided for in the Act. This, he states,
with reference to Section 3 (e) (ii) of 1940 Act, which defines an Inspector
appointed by the Central Government or the State Government under Section
21. Section 21 of the 1940 Act empowers the Central and State Government to
appoint, by notification in the Official Gazette, such persons as it thinks fit
having the prescribed qualifications, to be Inspectors for such areas, as may be
assigned to them by the Central Government or the State Government, as the
case may be. Similar is the position with regard to the duties which may be
performed by him to be assigned. He, thus, contends that the Rule making
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power having been restricted to the Central Government, the State is divested of
its powers to frame Rules.
4. With reference to the powers which have been exercised by the
State of Haryana under proviso to Article 309 of the Constitution of India to
frame Haryana Drugs (Group-B) Service Rules, 1989 (hereinafter referred to as
'1989 Rules') and Haryana Food and Drugs Administration Department
Subordinate Office (Group-B) Service Rules, 2018 (hereinafter referred to as
'2018 Rules), he submits that the same would not be available to the State as the
field is already covered and occupied by the 1945 Rules which have been
framed by the Central Government in pursuance to and in exercise of powers
conferred under Section 33 of the 1940 Act. His contention is that proviso to
Article 309 of the Constitution of India is only a temporary or stop gap
arrangement which can be pressed into service when there is no legislation or
statutory rules framed thereunder governing the terms and conditions of the
persons to be recruited. In case, where Rules are already in place and operative
under a statue which are being followed by the State, there would be no power
with the State to invoke proviso to Article 309 of the Constitution of India. His
submission is that the 1945 Rules hold the field which lays down the
qualifications of the Drug Inspectors and further, the powers and duties have
already been prescribed under the 1940 Act and 1945 Rules, the State could not
have laid down/prescribed the qualifications under proviso to Article 309 of the
Constitution of India as it lacked jurisdiction. In support of this contention, he
has placed reliance upon the judgments of the Hon'ble Supreme Court in
Chandra Prakash Tiwari and others Vs. Shakuntala Shukla (2006) 6 SCC
127 and D.R. Yadav and another Vs. R.K. Singh and another (2003) AIR
(SC) 3935.
5. Another submission, which has been put forth by the counsel
for the petitioners, is with reference to Article 254 of the Constitution of
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India. He submits that in case of any inconsistency between laws made by
the Parliament and the laws made by the Legislature of the State, especially
with regard to a situation which would arise as envisaged under Article 252
of the Constitution of India, where both Central and the State Governments
have the power to legislate, the Central Act shall prevail, meaning thereby
the State law to the extent it being repugnant is either eclipsed or void. As
per Rule 49 of the 1945 Rules, as framed by the Central Government in
exercise of its powers under Section 33 of the 1940 Act, qualifications of the
Inspectors stand prescribed. It lays down the essential qualification which is
degree in the fields prescribed therein. Two provisos to this rule have also
been incorporated thereunder and as per first proviso, person(s) who
has/have been appointed as Inspector(s) with the experience of 18 months in
the fields/areas mentioned, shall be authorized to inspect the manufacture of
substances mentioned in Schedule C. This cannot be said to be the essential
qualification for appointment as an Inspector as it only authorizes a person
who is already performing the duties of an Inspector to perform those
specified duties/job as mentioned. State of Haryana by enacting the 1989
Rules and 2018 Rules has made this first proviso to Rule 49 as an essential
qualification in purported exercise of its powers conferred under proviso to
Article 309 of the Constitution of India. This incorporation of the experience
as an essential qualification by the State of Haryana for appointment to the
post of Inspector has led to the qualifications having been changed.
Prescribing different set of qualifications which is in conflict with the
Central Act and the Central Rules would amount to usurping the powers of
the Central Government which is impermissible in law and not only will it
be against the statutory provisions but in violation of the constitutional
mandate. There being a conflict in the Rules as have been framed by the
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State of Haryana viz-a-viz Central Act and the Central Rules, the Central Act
and Central Rules would cover the field rendering the rules framed by the
State of Haryana inoperative and void being repugnant to the Central Rules.
In support of this contention, he has placed reliance upon the judgments in
Tumati Rangayya etc. Vs. The State of A.P. and others (F.B.) 1978 AIR
(A.P.) 106 and M/s T. Khande Rao and Sons etc. Vs. State of Karnatka
and others 1979 AIR (Karnatka) 71.
6. Learned counsel for the petitioners has placed heavy reliance
upon the Full Bench judgment of the Allahabad High Court in Kuldeep
Singh and others Vs. State of U.P. and another AIR (2014) All. 200(F.B.)
as also the Division Bench judgment of the Delhi High Court in W.P. (C)
2475 of 2019, titled as 'Union Public Service Commission Vs. Nidhi
Pandey and another', decided on 18th of February, 2020, wherein
experience, as prescribed under Rule 49 of the 1945 Rules, was sought to be
made an essential qualification for appointment as a Drug Inspector, which
challenge has been accepted by the Central Administrative Tribunal by
relying upon the Full Bench judgment of the Allahabad High Court in
Kuldeep Singh's case (supra), where again, such a situation had arisen to
conclude that the field having been occupied could not have been sought to
be replaced by the Rules to be framed under the proviso to Article 309 of the
Constitution of India. It has also been pointed out that the Special Leave to
Appeal (C) 3437-3456 of 2021, titled as 'Director General, Central Drugs
Standard Control Organization etc. Vs. Nidhi Pandey and another etc. etc.',
stands dismissed by the Hon'ble Supreme Court on 05.04.2021.
7. On this basis, it has been prayed by the counsel for the
petitioners that the Reference needs to be answered by upholding the
challenge to the statutory rules by setting aside/quashing the Rules which
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have been framed by the State of Haryana under the proviso to Article 309
of the Constitution of India and as a consequence thereof, advertisement as
also the process of selection in pursuance thereto be set aside and a fresh
selection be held by giving an opportunity to all the persons who fulfill the
qualifications as prescribed under Rule 49 of the 1945 Rules.
8. Learned Advocate General, Haryana, on the other hand, with
reference to Section 103 of the 1935 Act, has contended that the submission
of the counsel for the petitioners that the Act framed by the Federal
Legislature on the basis of the resolution passed by the Provincial
Legislatures authorizing the Federal Legislature to legislate on its behalf
cannot be amended or varied by the State Legislature or that the State
Legislature surrenders its powers to the Central Legislature cannot be
accepted especially with reference to the language of Section 103 of the
1935 Act. He emphasizes that in the said section itself, it has been stated that
the Act was passed by the Central Legislature with respect to any province,
to which it applied, but could be amended or repealed by an Act of the
Legislature or that province. He, thus, contends that the said Section 103 of
the 1935 Act would hold the field and not Article 252 (2) of the Constitution
of India. The argument of the counsel for the petitioners is based upon the
assumption that the provisions of Article 252 (2) would be applicable but the
same would not apply as the protection has been granted for the continuance
of the existing laws under Article 372 of the Constitution of India as limited
to the extent so provided under the said Article. He, therefore, contends that
all laws in force in the Territory of India immediately before the
commencement of the Constitution continue to be in force and would do so
until altered, repealed or amended by the Competent Legislature or other
Competent Authority. He, on this basis, contends that the State Legislature
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has the power to alter, repeal or amend the 1940 Act as also the 1945 Rules
framed thereunder. In support of this contention that pre-Constitution laws
cannot be considered to have been enacted under Article 252 of the
Constitution and Article 254 has no applicability to such enactments, he has
placed reliance upon the judgments Dr. Prakash Chandra Tiwari Vs. State
of Madhya Pradesh and others 1976 AIR (Madhya Pradesh) 50 (DB),
Pankajakshi (Dead) through LRs and others Vs. Chandrika and others
(2016) 6 SCC 157 (Constitution Bench) and Kirodi (Since Deceased)
through his LR Vs. Ram Parkash and others (2019) 1 L.A.R. 374.
9. In the light of the above, it has been contended by the learned
Advocate General, Haryana, that the exercise of powers conferred under the
proviso to Article 309 of the Constitution would not be illegal or
unconstitutional. In any case, he has asserted that neither the quality or basic
qualifications prescribed under the 1945 Rules, as framed by the Central
Government under Section 33 of the 1940 Act, have been compromised nor
has the essential qualification been reduced, rather better qualification than
the one which has been prescribed by the Central Government, has been
provided under the rules framed by the State of Haryana. This, he asserts in
the light of the accepted legal proposition that it is the employer, who has to
see the local circumstances, the requirements and necessity and then
prescribe the qualifications for appointment to a particular post. In any case,
he contends that there is no inconsistency between the rules which have been
framed by the Central Government and the State of Haryana, when only
improvement in essential qualifications has been made.
10. Another submission which has been put forth by the learned
Advocate General, Haryana, is that the Drug Inspector who is appointed as
such is required to perform various duties as have been prescribed under the
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1940 Act and the 1945 Rules. The said duties have been prescribed under
Rule 52 of the 1945 Rules. The assigning of the duties has been left at the
discretion of the State Government as also the Central Government
depending upon the Appointing Authority. Since the Appointing Authority
herein is admittedly the State, the duties have also to be taken and assigned
by it and therefore, Inspectors appointed under Section 21 of the 1940 Act
have been conferred with powers under Section 22 with the procedure to be
followed by the Inspectors specified in Section 23 thereof to give effect to
the duties and powers assigned/conferred on him. All this is left to the
discretion of the Appointing Authority. The qualifications for appointment,
therefore, was never intended to be restricted to the essential qualifications.
The State would be entitled to have higher essential qualifications which
would fulfill the requirement of not only performing the duties,
responsibilities duly following the procedure and exercising powers as
prescribed under the Act but to also perform the same effectively especially
when candidates for appointment to the post are available with not only the
prescribed essential academic and professional qualifications, but the
required experience as well. Insistence of persons with basic essential
qualification to be appointed would be justified in case there is dearth of
qualified candidates with experience for appointment. To substantiate this
contention, he has placed reliance upon the judgments of the Hon'ble
Supreme Court in S. Satyapal Reddy etc Vs. Government of A.P. and
others (1994) 3 SCT 837 (SC) and State of U.P. and others Vs.
Bhupendra Nath Tripathi and others (2010) 6 SLR 298 (SC).
11. Learned Advocate General, Haryana, has also emphasized upon
the aspect that the petitioners having participated in the selection process
cannot then be permitted to challenge the validity of the Rules at this belated
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stage when the process for selection had been initiated in the year 2015 with
a corrigendum having been brought about in the year 2018 increasing the
number of posts. The qualifications being known to the petitioners, they
should have initially challenged the qualifications which were prescribed in
the advertisement. Now having taken a chance and failed, they cannot be
permitted to turn around and challenge the validity of the statutory rules. In
support of this contention, reliance has been placed upon the judgment of the
Division Bench of this Court in Bhupinder Kumar Sharma Vs. State of
Punjab and others (2021) 3 SCT 45.
12. Learned Advocate General, Haryana, has also placed reliance
upon the Division Bench judgment of this Court in CWP No.14287 of 2013,
titled as 'Priyanka and others Vs. Union Public Service Commission and
others', decided on 22.09.2015, wherein the applications of the petitioners
for appointment to the post of Drug Inspectors in the Central Drugs
Standards Control Organization, Ministry of Health & Family Welfare,
Department of Health and Family Welfare, had been rejected on the ground
that they had not fulfilled the eligibility criteria in terms of the requisite
duration of experience. With that grievance, they had approached the Central
Administrative Tribunal, Chandigarh Bench, which had rejected the said
challenge leading to the filing of the writ petition, where again, apart from
laying down the qualification of degree in the specified fields incorporated
experience, as laid down in first proviso to Rule 49 of the 1945 Rules, as an
essential qualification. The Rules have been framed under Article 309 in the
year 2010 i.e. the Central Drugs Recruitment Control Organization (Drugs
Inspectors) Recruitment Rules, 2010. The Division Bench proceeded to hold
that since the statutory rules provided for the same as an essential
qualification, the writ had no merit and thus, dismissed the same. Review
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Application preferred by the petitioners i.e. Review Application No.445 of
2015 has also been dismissed by the Bench on 19.02.2016, where the plea
with reference to Rule 49 of the 1945 Rules was specifically pressed into
service to contend that the experience was not essential qualification and the
2010 Rules being violative of Rule 49 of the 1945 Rules cannot sustain but
the said plea was rejected.
13. On this basis, learned Advocate General, Haryana, proceeded
to submit that the challenge to the statutory rules deserves to be rejected and
the writ petitions dismissed.
14. Mr. Govind Goel, Advocate, counsel for respondent No.6 in
CWP No.15067 of 2020, has, in addition to the submissions made by the
learned Advocate General, Haryana, placed reliance upon the judgment in
Anupal Singh and others Vs. State of Uttar Pradesh through Principal
Secretary, Personnel Department and others (2020) 2 Supreme Court
Cases 173, and contended that the petitioners having participated in the
selection process, cannot challenge the selection. They lack bona fides and
the writ petitions would not be maintainable on account of acquiescence. He
has primarily attributed it to the delay on the part of the petitioners in
challenging the statutory rules when they were aware that they were
ineligible but still participated in the selection process. It has been contended
by him that the item drug and cosmetic falls in the List No.III (Concurrent
List) of the VIIth Schedule of the Constitution and both the Union and the
States have legislative competence. His submission is that Rule 49 of the
1945 Rules framed by the Central Government and the 1989 Rules and 2018
Rules as framed by the Government of Haryana govern the qualifications for
appointment to the post of Drug Inspector. They operate in their respective
fields and there is neither any inconsistency or irreconcilability. In any case,
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when two set of Rules operate in the same field, the two set of Rules have to
be construed harmoniously especially when framing of the Rules under
proviso to Article 309 of the Constitution are plenary piece of Legislation.
The State Rules have to be held inconsistent only when there is direct
conflict between the two. The essential qualification of experience, as has
been prescribed under the 1989 Rules and 2018 Rules, have been so
prescribed for the reason that the Drug Inspectors, who are appointed at the
very inception, are able to inspect the manufacture of substances mentioned
in Schedule C of the 1940 Act. Referring to the judgment of the Hon'ble
Supreme Court in B.S. Yadav and others Vs. State of Haryana and others
AIR 1981 Supreme Court 561, counsel contends that the legislative power
vested in the State Legislature under the VIIth Schedule is exercised by the
Governor under Article 309 just like the ordinance making power under
Article 213 of the Constitution of India. Concurrent power of the VIIth
Schedule so exercised by the Governor under Article 309 are valid and in
consonance with law. Applicability of Article 246 which provides for subject
matter of laws made by Parliament and by the Legislature of the States
confers powers on the Centre and the States qua the Concurrent List, the
only rider would be that there should not be irreconcilable to each other.
15. As regards the entitlement and powers of the employer to have
higher qualification or to prescribe the additional qualification, he has placed
reliance upon the judgments in Maharashtra Public Service Commission
through its Secretary Vs. Sandeep Shriram Warade and others (2019) 6
SCC 362 and APJ Abdul Kalam Technological University and another
Vs. Jai Bharath College of Management and Engineering Technology
and others (2021) 2 SCC 564, to support this plea. He, on this basis,
contends that the qualification as has been prescribed by the State of
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Haryana in exercise of its powers under the proviso to Article 309 of the
Constitution of India is fully justified and in accordance with law, where no
lower qualification than the minimum prescribed has been laid down.
16. Mr. Govind Goel, has further emphasized upon the fact that
since it is an item which is in the Concurrent List and as per the settled
proposition in law in the light of the judgment of the Hon'ble Supreme Court
in the case of State of Bihar and others Vs. Shree Baidyanath Ayurved
Bhawan (P) Ltd. and others (2005) 2 SCC 762, even if there is an Act
which has been passed by the Parliament, the State would have the power to
legislate especially when the Act which has come into existence because of
the operation of Section 103 of the 1935 Act, the said Act can be amended or
repealed by the Parliament and also by the State Legislature. However, such
amendment by the State Legislature would be subject to Presidential assent
to amending or repealing of the same. In support of this argument, he has
placed reliance upon the judgment of the Hon'ble Supreme Court in Kerala
State Electricity Board Vs. The Indian Aluminium Co. Ltd. (1976) 1
SCC 466. Reliance has also been placed upon the judgment of the Hon'ble
Supreme Court in A.S. Krishna and others Vs. State of Madras AIR 1957
SC 297 to contend that the question of repugnancy will arise with reference
to the legislation falling under the Concurrent List and they must be
repugnant to each other. Unless the State Act being repugnant to the Central
Act, it would not be void. However, to the extent of its repugnancy, the same
would be void. He, thus, contends that there being no conflict between the
Central Rules and the State Rules, the challenge to the statutory rules, as
framed by the State of Haryana, is without any basis. Prayer has, thus, been
made for dismissal of the writ petitions.
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17. We have considered the submissions made by the learned
counsel for the parties and with their assistance have gone through the
pleadings, records and the judgments relied upon by them.
18. In the Reference, there are three questions which arise for the
Larger Bench to be considered as per the Reference order dated 25.08.2021,
which read as follows:-
1. Whether the State Government could have acted
beyond the statutory provisions contained in the Central
Act i.e. Sections 21 and 33 of the 1940 Act and the 1945
Rules framed thereunder by prescribing qualifications
invoking Article 309 of the Constitution of India for this
purpose?
2. Whether the experience as contained in the first
proviso to Rule 49 of the 1945 Rules as framed by the
Central Government can be made an essential
qualification by the State framing rules under Article 309
of the Constitution of India?
3. Whether the rules framed by the State under Article
309 of the Constitution of India would have overriding
effect over the rules framed under Central statute, the
primary legislation governing recruitment of Drug
Inspectors?
19. Facts in these cases are not in dispute and can be stated briefly
that the Haryana Public Service Commission (hereinafter referred to as
'Commission') issued an advertisement dated 10.09.2015 for direct
recruitment of four posts of Drugs Control Officer (nomenclature changed
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from Drugs Inspector vide notification dated 09.01.2008 and hereinafter
referred to as Drugs Inspector for the sake of convenience in the light of the
fact that under the 1940 Act and 1945 Rules, the said term has been
mentioned and used) in Health Department, Haryana. Thereafter, on
04.06.2019, a corrigendum was issued, whereby posts of Drugs Inspector
were increased to 26 from 4 and the last date for filling the online
applications was kept as 18.06.2019. Recruitment test was conducted by the
Commission on 03.10.2019 and result thereof was announced on
12.12.2019. Candidates three times the number of posts were called for the
further process. Since the number of qualified candidates were less than
three times the posts advertised, an amended result was declared on
04.06.2020. Screening/scrutiny process was initiated by the Commission and
the documents from the candidates were called for and the same were
scrutinized. Names of the petitioners were not included in the list primarily
for the reason that they did not possess the experience, which was prescribed
in the advertisement, which had been made the essential qualification as per
the initial notified 1989 Rules and the 2018 Rules.
20. It is, at this stage, that the petitioners approached this Court by
filing the writ petitions, wherein the essential qualifications as prescribed in
the advertisement and as notified by the Food and Drugs Department,
Haryana Government, dated 13.11.2018, were challenged on the ground that
the essential qualifications as prescribed in the 1940 Act read with the 1945
Rules framed thereunder have been violated, where the qualification which
has been prescribed is a Bachelor degree in the fields as specified therein.
There was no experience required for initial appointment to the post of
Drugs Inspector and that the first proviso to Rule 49 of the 1945 Rules
relates to experience in the specified fields mentioned therein entitling and
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making the Drugs Inspector eligible and authorized to inspect the
manufacture of substance contained in Schedule C of the 1940 Act. This
experience having been made the essential qualification for appointment to
the post of Drugs Inspector is unsustainable in the light of the fact that the
said 1945 Rules, which have been framed under the Central statute by the
Central Government, would prevail over the statutory rules framed under the
proviso to Article 309 of the Constitution of India which has a limited shelf-
life and it operates as the stop-gap arrangement until provisions with regard
to regulating the recruitment is made by or under the Act of appropriate
Legislature under this Article and Rules so made shall have effect subject to
provisions of any such Act. On this basis, it has been pleaded that the field
being already occupied with the framing of the Central Act and thereunder
the Rules, the rules framed by the State cannot operate.
21. To this, State has responded by asserting that in the light of the
provisions as contained in Section 103 of the 1935 Act, the operation of the
said Act so framed by the Central Government on the basis of the resolution
of the Provincial Legislature, did not bar amendment/repeal of the said Act
by the State Legislature and the same could be so done at any time. It has
also been asserted that Article 252 of the Constitution would not be
applicable in this case as the same operates when an Act has been passed
under Article 242 of the Constitution of India. It is, therefore, contended that
the State has the power and jurisdiction to amend the rules which have been
framed by the Central Government.
22. For proceeding to answer the questions raised in the Reference,
the background and the history of the Drugs and Cosmetics Act, 1940 needs
to be gone into. As per the Statement of Object and Reasons of the Drugs
and Cosmetics Act, 1940, on receipt of recommendations of the Drug
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Enquiry Committee, which had been constituted to regulate the import of
drugs into then British India, was introduced in the Central Legislative
Assembly in 1937. The said Select Committee appointed by the Central
Legislative Assembly opined that more comprehensive measures providing
for the uniform control of the manufacture and distribution of drugs as well
as of import was desirable. The Government of India asked Provincial
Governments to invite the Provincial Legislatures to pass resolution under
Section 103 of the Government of India Act, 1935, empowering the Central
Legislature to pass an Act for regulating such matters relating to the control
of drugs as fall within the Provincial Legislative List. Such resolutions
having been passed by all the Provincial Legislatures, when received by the
Government of India, led to the introduction of the Drugs Bill in the Central
Legislative Assembly, which came to be passed by the Central Legislative
Assembly. The same received the assent of the Governor General on
10.09.1940 and thus, came into force. By Section 2 of the Drugs
(Amendment) Act, 1964, its nomenclature has been amended by adding the
word 'cosmetics' after the word 'drugs' making it 'The Drugs and Cosmetics
Act, 1940'. The said Act extends to the whole of India.
23. At this stage, reference to Section 103 of the 1935 Act would
be necessary before we proceed further, which reads as follows:-
"103. If it appears to the Legislatures of two or more
Provinces to be desirable that any of the matters
enumerated in the Provincial Legislative List should be
regulated in those Provinces by Act of the Federal
Legislature, and if resolutions to that effect are passed by
all the Chambers of those Provincial Legislature, it shall
be lawful for the Federal Legislature to pass an Act for
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regulating that matter accordingly, but any Act so passed
may, as respects any Province to which it applies, be
amended or repealed by an Act of the Legislature of that
Province."
A perusal of the above would show that the operation of this
Section commences with the Provincial Legislature passing a resolution
empowering the Federal Legislature to pass an Act for regulating the matter
which falls under the Provincial Legislative List. When the Federal
Legislature passes an Act for the said purpose, it becomes binding upon the
said Province, however, the said Act as passed by the Federal Legislature in
relation to any Province, to which it applies, can be amended or repealed by
an Act of the Legislature of that Province.
24. With the coming into force of, the Constitution of India, the
statutes which were in operation on the said date, were protected under
Article 372 of the Constitution of India. The relevant sub-Section (1) of the
said Article reads as follows:-
"372. Continuance in force of existing laws and
their adaptation. - (1) Notwithstanding the repeal
by this Constitution of the enactments referred to
in article 395 but subject to the other provisions of
this Constitution, all the law in force in the
territory of India immediately before the
commencement of this Constitution shall continue
in force therein until altered or repealed or
amended by a competent Legislature or other
competent authority."
A perusal of the above Article would show that all laws in
force in the Territory of India before the commencement of the Constitution
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of India continued to operate until altered or repealed or amended by a
Competent Legislature or other Competent Authority. It may, however, be
added here that the said laws would be subject to the other provisions of the
Constitution of India, meaning thereby that the laws in violation of the
constitutional provisions would cease to operate.
25. Reference at this stage may be made to the judgments of the
Hon'ble Supreme Court in Union of India Vs. Valluri Basavaiah
Chouwdhary's and Thumati Venkaiah etc. Vs. State of A.P.'s case (supra)
which would explain the position with regard to the provisions as contained
under Section 103 read in conjunction with Article 252 of the Constitution of
India which deals with the power of Parliament to legislate for two or more
States by consent and by adoption of such legislation of any other State
which would be pari materia to Section 103 except for Article 252 (2),
where, on an Act being passed by the Parliament as per the resolution of the
Legislature(s) of the House(s) of the States, the Parliament would have the
power and jurisdiction to amend or repeal the said Act. This is the basic
difference between the two, which needs to be kept in mind while dealing
with the matter.
What is apparent, therefore, is that the Act as framed by the
Federal Legislature i.e. 1940 Act and 1945 Rules framed under Section 33
thereof continue to operate till date qua the State of Haryana as there has
been no amendment or repeal by an Act of the legislature of the State.
26. Moving on to the aspect as to whether the State of Haryana has
foregone its power to amend or make rules much less the service rules qua
the post of Drugs Inspector, suffice it to say that the power to amend and
repeal the Act is very much with the State of Haryana but since such a power
has not been invoked, the said 1940 Act and 1945 Rules framed thereunder
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continue to operate in the light of the provisions of Section 103 of the 1935
Act read with Article 372 of the Constitution of India.
27. The next aspect which needs to be referred to and highlighted is
whether the State of Haryana could frame Rules under proviso to Article 309
of the Constitution of India especially when the 1945 Rules as framed by the
Central Government under Section 33 of the 1940 Act are still operational ?
28. Section 33 of the 1940 Act reads as follows:-
"33. Power of Central Government to make rules.--
(1) The Central Government may [after consultation
with, or on the recommendation of, the Board] and after
previous publication by notification in the Official
Gazette, make rules for the purpose of giving effect to
the provisions of this Chapter:
Provided that consultation with the Board may be
dispensed with if the Central Government is of opinion
that circumstances have arisen which render it necessary
to make rules without such consultation, but in such a
case the Board shall be consulted within six months of
the making of the rules and the Central Government shall
take into consideration any suggestions which the Board
may make in relation to the amendment of the said rules.
(2) Without prejudice to the generality of the foregoing
power, such rules may--
(a) provide for the establishment of laboratories for
testing and analysing drugs [or cosmetics];
(b) prescribe the qualifications and duties of Government
Analysts and the qualifications of Inspectors;
(c) prescribe the methods of test or analysis to be
employed in determining whether a drug [or cosmetic] is
of standard quality;
(d) prescribe, in respect of biological and organometallic
compounds, the units or methods of standardisation;
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(dd) prescribe under clause (d) of [section 17A] the
colour or colours which a drug may bear or contain for
purposes of colouring;
(dda) prescribe under clause (d) of section 17E the colour
or colours which a cosmetic may bear or contain for
purposes of colouring;
(e) prescribe the forms of licences [for the manufacture
for sale or for distribution], for the sale and for the
distribution of drugs or any specified drug or class of
drugs [or of cosmetics or any specified cosmetic or class
of cosmetics], the form of application for such licences,
the conditions subject to which such licences may be
issued, the authority empowered to issue the same [the
qualification of such authority] and the fees payable
therefor [and provide for the cancellation or suspension
of such licences in any case where any provision of this
Chapter or the rules made thereunder is contravened or
any of the conditions subject to which they are issued is
not complied with;
(ee) prescribe the records, registers or other documents to
be kept and maintained under section 18B;
(eea) prescribe the fees for the inspection (for the
purposes of grant or renewal of licence) of premises,
wherein any drug or cosmetic is being or is proposed to
be manufactured;
(eeb) prescribe the manner in which copies are to be
certified under sub-section (2A) of section 22;
(f) specify the diseases or ailments which a drug may not
purport or claim [to prevent, cure or mitigate] and such
other effects which a drug may not purport or claim to
have;
(g) prescribe the conditions subject to which small
quantities of drugs may be manufactured for the purpose
of examination, test or analysis;
(h) require the date of manufacture and the date of expiry
of potency to be clearly or truly stated on the label or
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container of any specified drug or class of drugs, and
prohibit the sale, stocking or exhibition for sale, or
distribution of the said drug or class of drugs after the
expiry of a specified period from the date of manufacture
or after the expiry of the date of potency;
(i) prescribe the conditions to be observed in the packing
in bottles, packages, and other containers of drugs [or
cosmetics], [including the use of packing material which
comes into direct contact with the drugs] and prohibit the
sale, stocking or exhibition for sale, or distribution of
drugs [or cosmetics] packed in contravention of such
conditions;
(j) regulate the mode of labelling packed drugs [or
cosmetics], and prescribe the matter which shall or shall
not be included in such labels;
(k) prescribe the maximum proportion of any poisonous
substance which may be added or contained in any drug,
prohibit the manufacture, sale or stocking or exhibition
for sale, or distribution of any drug in which that
proportion is exceeded, and specify substances which
shall be deemed to be poisonous for the purposes of this
Chapter and the rules made thereunder;
(l) require that the accepted scientific name of any
specified drug shall be displayed in the prescribed
manner on the label or wrapper of any patent or
proprietary medicine containing such drug;
(n) prescribe the powers and duties of Inspectors [and the
qualifications of the authority to which such Inspectors
shall be subordinate] and [specify the drugs or classes of
drugs or cosmetics or classes of cosmetics] in relation to
which and the conditions, limitations or restrictions
subject to which, such powers and duties may be
exercised or performed;
(o) prescribe the forms of report to be given by
Government Analysts, and the manner of application for
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test or analysis under section 26 and the fees payable
therefor;
(p) specify the offences against this Chapter or any rule
made thereunder in relation to which an order of
confiscation may be made under section 31;
(q) provide for the exemption, conditionally or
otherwise, from all or any of the provisions of this
Chapter or the rules made thereunder, of any specified
drug or class of drugs [or cosmetic or class of cosmetics;
[and]
(r) sum which may be specified by the Central
Government under section 32-B."
A perusal of the above would show that the power to make
Rules has been conferred upon the Central Government for the purpose of
giving effect to the provisions of the Chapter, in which the said Section finds
mention. It would not be out of way to state that Section 33 falls in Chapter
IV of the 1940 Act, which deals with the manufacture, sale and distribution
of drugs and cosmetics. In this Chapter, Section 21 deals with the
appointment of Inspectors having the prescribed qualifications, their powers
and duties which is to be prescribed by the Appointing Authority which can
be the State Government or the Central Government.
29. The powers of the Inspectors have been specified in Section 22
and the procedure to be followed to give effect to the duties and powers to be
exercised have been elaborated in Section 23. Then comes Section 33 (1)
which empowers the Central Government to make rules. In sub-section 2 (b)
thereof, the qualifications and duties of the Inspectors have been mentioned
apart from that of the Government Analysts under the Rules. Similarly,
under sub-section 2 (n), the powers and duties of Inspectors and the
qualification of the authority to which such Inspector shall be subordinate
etc. have been mentioned, meaning thereby that rules qua these aspects
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without prejudice to the generality of the powers conferred under sub-section
(1) of Section 33 have been mentioned.
30. It is, in exercise of these powers, the 1945 Rules have been
framed, wherein the qualifications of the Inspectors have been laid down
under Rule 49 of the 1945 Rules, which reads as follows:-
"49. Qualifications 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 than 18 months' experience in the
manufacture of at least 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 experiences 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."
A perusal of the above would show that the main rule mentions
the minimum essential qualification for appointment of Inspectors which has
been prescribed as a degree in the fields so specified therein. First proviso
thereto deals with the entitlement and eligibility of an Inspector to be
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authorized to inspect the manufacture of substances mentioned in Schedule
C. For a person to be eligible under this proviso, any one of the three
different types/nature of experience relating to manufacture, testing and
inspection of substances specified in Schedule C along with the period
mentioned qua that experience should be possessed. It needs to be
emphasized here that experience relating to manufacture or testing of 18
months as laid down, can be obtained from any source but so far as the third
experience which has been laid down as not less than three years has to be
during the tenure of his service as a Drugs Inspector, meaning thereby that
this experience is in-service experience on the post of Drugs Inspector. The
experience, therefore, as prescribed in the first proviso to Rule 49 cannot be
termed as the essential qualification for appointment as a Drugs Inspector
under the 1945 Rules. That apart, Rule 51 lays down and specifies the duties
of an Inspector to inspect premises licensed for the sale of drugs, while Rule
52 specifies the duties of an Inspector authorised to inspect the manufacture
of drugs and cosmetics. Before authorisation to exercise duties and powers
under Rule 52, experience as prescribed in the first proviso is to be
possessed or achieved. This also throws light on the aspect that for
appointment as Drug Inspector experience is not mandatory or essential.
31. Normally speaking proviso is an exception to the main
provision although it does not exclude the operation of the provision itself.
The Hon'ble Supreme Court in S. Sundaram Pillai and others Vs. V.R.
Pattabiraman and others (1985) 1 SCC 519 has dealt with the aspect of
interpretation of the proviso in following terms:-
"The well established rule of interpretation of a proviso
is that a proviso may have three separate functions.
Normally, a proviso is meant to be an exception to
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something within the main enactment or to qualify
something enacted therein which but for the proviso
would be within the purview of the enactment. In other
words, a proviso cannot be torn apart from the main
enactment nor can it be used to nullify or set at naught
the real object of the main enactment."
Meaning thereby that the proviso cannot be used to import the
enacting part of something which is not intended to be there but does control
the main provision. In Haloni Auto Links Private Limited Vs. State of
Madhya Pradesh (2008) 13 SCC 185, the Hon'ble Supreme Court has held
as follows:-
"...the function of a proviso or an exception is that it
qualifies the generality of the main enactment by
providing an exception and taking out as it were from the
main enactment a portion which but for the proviso
would fall within the main enactment. Ordinarily it is
foreign to the proper function of the proviso to read it as
providing something by way of an addendum. In Madras
& Southern Maharatta Rly. Co. Ltd Vs. Bezwada
Municipality, it was held as under:"
32. In catena of judgments, it has been settled by the Hon'ble
Supreme Court that while interpreting any provision of the statute, the plain
meaning has to be given effect to and if the language thereof is simple and
unambiguous, there is no need to traverse beyond the same. Applying these
principles, it is apparent that the experience referred to in the first proviso to
Rule 49 of the 1945 Rules has not been made an essential qualification for
appointment to the post of Drug Inspector, but the same is in violation to a
specified nature and duties to be performed after gaining a particular
experience and being authorized by the Competent Authority for performing
such responsibility as conferred.
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33. Now moving on to the Rules which have been framed under the
proviso to Article 309 of the Constitution of India by the State of Haryana
i.e. 1989 Rules; Rule 7 deals with the qualification which reads as follows:-
APPENDIX B
(See Rule 7)
Sr. Designation of Academic qualifications and Academic qualification and
No. post experience, if any, for direct experience, if any, for
recruitment appointment other than by
direct recruitment
1 Deputy State XXXXXXXXX
Drugs
Controller
2 Assistant State XXXXXXXXX
Drugs
Controller
3 Senior Drugs XXXXXXXXX
Inspector
4 Drugs (a) Second Class Bachelor degree in
Inspector Pharmacy
or
Pharmaceutical Chemistry.
(b) 1½ years experience in
manufacturing of at least one of the
substances specified in Schedules C
appended to the Drugs and Cosmetics
Act, 1945
or
1½ years experience in testing of at
least one of the substances specified in
said Schedules C in a laboratory
approved for the purpose by the
licensing authority
or
Three years experience in inspection of
Firms manufacturing any of the
substances specified in the said
Schedule C.
(c) Adequate knowledge of Hindi.
In 2018 Rules, Section 7 thereof deals with the qualification
which reads as follows:-
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Sr. Designation Academic qualifications and Academic qualification
No. experience, if any, for an appointment and experience, if any, for
by direct recruitment an appointment by other
than direct recruitment
11. Drugs Control (a) Second Class Bachelor degree in By transfer/deputation:-
Officer Pharmacy
1. Two years experience as
or Drugs Control Officer;
Pharmaceutical Chemistry; 2. (a) Second Class
Bachelor degree in
(b) 1½ years experience in Pharmacy
manufacturing of at least one of the
substances specified in Schedules C or
appended to the Drugs and Cosmetics
Act, 1945; Pharmaceutical Chemistry;
or (b) 1½ years experience in
manufacturing of at least
1½ years experience in testing of at one of the substances
least one of the substances specified in specified in Schedules C
said Schedules C in a laboratory appended to the Drugs and
approved for the purpose by the Cosmetics Act, 1945;
licensing authority;
or
or
1½ years experience in
Three years experience in inspection of testing of at least one of the
Firms manufacturing any of the substances specified in said
substances specified in the said Schedules C in a laboratory
Schedule C; and approved for the purpose
by the licensing authority;
(c) Hindi or Sanskrit upto Matric or
Higher Education or
Three years experience in
inspection of Firms
manufacturing any of the
substances specified in the
said Schedule C; and
(3) Hindi or Sanskrit upto
Matric or Higher
Education
It may be pointed out here that the academic qualifications for
appointment to the post of Drug Inspector (in 2018 Rules nomenclature
changed to Drug Control Officer) remain the same.
Another difference which has been brought about is under the
mode of appointment in the 2018 Rules by including 'transfer and
deputation' apart from direct, whereas under the 1989 Rules, the only mode
of recruitment that was provided was 'direct'.
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34. Perusal of the above 1989 Rules and 2018 Rules would show
that the experience specified thereunder has been made a part of the essential
qualification. Except for this change, there is no other difference with regard
to the qualification prescribed under the 1945 Rules framed by the Central
Government and the qualification prescribed under the 1989 and 2018 Rules
framed by the State of Haryana.
35. The question, therefore, needs to be now considered is whether
the experience, which is not made an essential qualification under the 1945
Rules as framed by the Central Government in exercise its powers conferred
under Section 33 of the 1940 Act, which was legislated by the Centre, could
be made an essential qualification by the State by invoking proviso to Article
309 of the Constitution of India and that too, with reference to Section 103
of the 1935 Act, under which the 1940 Act had been legislated?
36. Article 309 of the Constitution of India reads as follows:-
"309. Recruitment and conditions of service of
persons serving the Union or a State.--Subject to the
provisions of this Constitution, Acts of the appropriate
Legislature may regulate the recruitment, and conditions
of service of persons appointed, to public services and
posts in connection with the affairs of the Union or of
any State:
Provided that it shall be competent for the President or
such person as he may direct in the case of services and
posts in connection with the affairs of the Union, and for
the Governor of a State or such person as he may direct
in the case of services and posts in connection with the
affairs of the State, to make rules regulating the
recruitment, and the conditions of service of persons
appointed, to such services and posts until provision in
that behalf is made by or under an Act of the appropriate
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Legislature under this article, and any rules so made shall
have effect subject to the provisions of any such Act."
37. The Division Bench of this Court had an occasion to examine
the extent and operation of the powers to be exercised under proviso to
Article 309 of the Constitution in CWP No.20447 of 2020, titled as 'Dr.
Joginder Pal Singh and others Vs. Union of India and others', decided on
01.03.2021. In para 12 thereof, it has been held as follows:-
"12. A perusal of the above would show that the
recruitment and conditions of service of the persons is
first of all subject to the other provisions of the
Constitution and the Acts of the appropriate Legislature
which may regulate the recruitment and the conditions of
service of the persons appointed to the public services.
Proviso to Article 309 is only a temporary or stop-gap
arrangement which is pressed into service or brought
about to hold the field for a limited period i.e. until
provision is made by or under an Act of the appropriate
Legislature regulating the recruitment and the conditions
of service of the persons. In case of such an Act covering
the field which was erstwhile being occupied by the rules
framed under proviso to Article 309, the said Act of the
appropriate legislature would come into effect from the
date of its enforcement and the rules framed under
proviso to Article 309 will have to give way to the
statutory provisions wherever found inconsistent to the
statutory provisions of the Act and the regulations/rules
framed thereunder. It can be said that life of the Rules
framed under the proviso to Article 309 is limited and
govern the service conditions of the employees till the
relevant statutory provisions of the Act and/or the Rules
or Regulations framed thereunder come into force.
In other words, Article 309 is a transitional and an
enabling provision conferring the power on the executive
to make Rules with regard to conditions of service of the
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civil servants having a limited life span until the
appropriate Legislature legislates on the subject. This is
apparent from the language of the Article where the
power to make provisions for regulating the services is
left to the Legislature. Proviso to this Article thus,
operates to fill the vacuum until appropriate legislation
comes into force. Once any Act made by the appropriate
Legislature, which is relatable to Article 309 comes into
force, the Rules made under proviso to this Article must
and would give way. The source of power which flows
from the proviso to make Rules dries up the moment
appropriate legislation covering the scope and ambit of
the Rules so framed under Article 309 becomes
operational. It requires to be pointed out here that the
Rule making power under Article 309 cannot be
exercised if the Legislature has already made a law
occupying the field. If there is a conflict between the
Rules framed under Article 309 and the law made by the
Legislature, the law made by the Legislature will
prevail."
38. Reference at this stage can be made to the judgment of the
Hon'ble Supreme Court in D.R. Yadav's case (supra), wherein it has been
held that the rules framed under Section 309 are transitory in nature and give
way to the special rules framed. After reproduction of the proviso to Article
309, it has been stated by the Hon'ble Supreme Court as follows:-
"On a plain reading of the said provision, there cannot be
any doubt whatsoever that rules framed thereunder
would apply so long as a statute or statutory rules or any
other subordinate legislation governing the conditions of
service are not enacted or made or not otherwise
operating in the field. In other words, rules made under
proviso to Article 309 of the Constitution are for a
transitory period and the same would give way to the
special rules once framed. However, if a statute or rules
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made thereunder was/were already operating in the field,
the general rules made under proviso to Article 309
would not apply to the Services created thereunder. The
submission of Mr. Dwivedi to the aforementioned extent
appears to be correct."
In A.B. Krishna Vs. State of Karnatka 1998 (2) S.C.T. 57,
the Hon'ble Supreme Court, in paras 6, 7 and 9 thereof, has been held as
follows:-
"6. It is primarily the Legislature, namely, the Parliament
or the State Legislative Assembly, in whom power to
make law regulating the recruitment and conditions of
service of persons appointed to public services and posts,
in connection with the affairs of the Union or the State, is
vested. The legislative field indicated in this Article is
the same as is indicated in Entry 71 of List I of the
Seventh Schedule of Entry 41 of List II of that Schedule.
The Proviso, however, gives power to the President or
the Governor to make Service Rules but this is only a
transitional provision as the power under the Proviso can
be exercised only so long as the Legislature does not
make an Act whereby recruitment to public posts as also
other conditions of service relating to that post are laid
down.
7. The Rule-making function under the Proviso to Article
309 is a legislative function. Since Article 309 has to
operate subject to other provisions of the Constitution, it
is obvious that whether it is an Act made by the
Parliament or the State Legislature which lays down the
conditions of service or it is the Rule made by the
President or the Governor under the Proviso to that
Article, they have to be in conformity with the other
provisions of the Constitution specially Article 14, 16
310 and 311.
8. XXXX XXXX XXXX
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9. It is no doubt true that the Rule-making authority
under Article 309 of the Constitution and Section 39 of
the Act is the same, namely, the Government (to be
precise, Governor, under Article 309 and Govt. under
Section 39), but the two jurisdictions are different. As
has been seen above, power under Article 309 cannot be
exercised by the Governor, if the legislature has already
made a law and the field is occupied. In that situation,
Rules can be made under the Law so made by the
legislature and not under Article 309. It has also to be
noticed that Rules made in exercise of the rule- making
power given under an Act constitute Delegated or Sub-
ordinate legislation, but the Rules under Article 309
cannot be treated to fall in that category and, therefore,
on the principle of "occupied field", the Rules under
Article 309 cannot supersede the Rules made by the
legislature."
39. In the present case, the 1945 Rules have been framed by the
Central Government under the powers conferred on it under Section 33 of
the 1940 Act. This power to frame rules is only available to the Central
Government and the State does not have any power to frame rules. Since the
field is already occupied and there is an appropriate Act with rules framed
thereunder, the power as available to the State under proviso to Article 309
of the Constitution of India would not be exercisable by the State. If the
powers under proviso to Article 309 could not be exercised, being not
available, the statutory rules framed by the State Government thereunder
cannot hold the field as there is no jurisdiction conferred on the State
Government for such purpose under the Act governing the field.
40. So far as the constitutional provisions as contained under
Article 252 is concerned, which confers power to Parliament to legislate for
two or more States by consent and by adoption of such Legislature by any
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other State is concerned, there can be no doubt that the Parliament can
legislate when the resolution to this effect has been passed by House(s) of
the Legislature(s) of the State(s) concerned relating to the matters, where the
Parliament has no powers to make laws. On such legislation having been
made by the Parliament, the State ceases to have powers either to amend or
repeal the said Act. The power has been successfully conferred upon the
Parliament for these purposes under Article 252 (2). This finds mention in
Article 252 (2) of the Constitution of India.
41. Part XI of the Constitution of India deals with the relations
between the Union and the States. Chapter I thereof deals with the legislative
relations i.e. distribution of legislative powers. Article 246 deals with the
subject matters of laws made by the Parliament and the Legislatures of the
States, wherein the three lists enumerating the matters upon the Parliament
and the State Legislature have been mentioned. These three lists are (i) the
Union List, (ii) the Concurrent List and (iii) the State List. Residuary powers
of Legislation have been conferred on the Parliament under Article 248 of
the Constitution. Articles 249 and 250 relate to situations where the
Parliament may legislate with respect of matters in the State List. Article 251
deals with a situation where there is inconsistency between the laws made by
the Parliament under Articles 249 and 250 and laws made by the Legislature
of the States.
42. Article 254 deals with a situation where there is inconsistency
between the laws made by the Parliament and the laws made by the
Legislatures of the States. According to this Article, in a matter which falls
in the Concurrent List, if any provision of the State Legislature is repugnant
to any provision of law made by the Parliament, law made by the Parliament
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shall prevail and the law made by the State Legislature shall, to the extent of
repugnancy, be void.
Article 254 (2) relates to the matters enumerated in the
Concurrent List which contains that any provision repugnant to the provision
of an earlier law made by the Parliament which has received the assent of the
President, such State law shall prevail in that State, however, the proviso
confers powers upon the Parliament to legislate on such legislation to the
extent of adding to, amending, varying or repealing the law so made by the
Legislature of the State. This Article makes it amply clear that in a matter
which has fallen in the Concurrent List, both the Central as well as State
Government can legislate. The law so made by the Legislature of the State
even if the same is repugnant to the provisions of law made by the
Parliament and if the same has been reserved for consideration of the
President and has received his assent shall prevail in that State otherwise in
case of repugnancy, law made by the State Legislature shall, to the extent of
repugnancy, be void.
43. When this principle is taken up and considered in the light of
Section 103 of the 1935 Act, read with Article 372 of the Constitution,
which saves all the laws in force in the Territory of India immediately before
the commencement of the Constitution with a rider to the effect that the said
law shall continue in force until altered or repealed or amended by a
Competent Legislature or other Competent Authority. It may be added here
that all laws which were in force at the time of commencement of the
Constitution have to be consistent with the constitutional provisions as it has
been made specifically subject to other provisions of the Constitution under
Article 372 itself.
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Elaborating further on this aspect, in case the matter related to
the law which is saved by Article 372 with regard to its enforceability and
continuity thereof, if falls in the enumerated list (I) of the Seventh Schedule
of the Constitution i.e. The Union List, the same can be altered or repealed
or amended by the Parliament alone. Similarly, with regard to the item
which falls exclusively within the matters enumerated in the List (II) in the
Seventh Schedule of the Constitution i.e. State List, the State Legislature
will have the power to alter, repeal or amend the said law, whereas the
matter which falls in the List (III), as enumerated in the Seventh Schedule of
the Constitution i.e. Concurrent List, the Parliament and the State
Legislatures will have the similar powers of altering, repealing and
amending the State law. This can be so said with reference to Article 246 of
the Constitution.
44. Section 103 of the 1935 Act confers the power on the Federal
Legislature to legislate on the matter, for which it had been conferred with
the power to pass an Act as per the resolution of the Provincial Legislature,
the amendment and repeal of the Act could be carried out by the Legislature
of that Province.
45. Present is a case where admittedly, the matter in question falls
in the realm of IIIrd list i.e. Concurrent List, where the State Legislature, not
only in light of Section 103 of 1935 Act, but also under Article 372 of the
Constitution, could alter or repeal or amend the 1940 Act, however, in case
the said alteration or repeal or amendment is repugnant or inconsistent to the
Central Act, the assent of the President after it has been reserved for
consideration, has to be received as provided for in Article 254. On receipt
of such assent, the provision as passed by the State Legislature shall prevail.
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46. The said route has not been followed by the State of Haryana.
Instead of amending the 1940 Act, it has only proceeded to frame its own set
of Rules exercising its powers purporting to be under proviso to Article 309
of the Constitution under a misconception and in violation of the
constitutional provisions. This is so in the light of the restricted operational
jurisdiction conferred under the proviso to Article 309 of the Constitution as
elaborated above.
47. As per the provisions of 1940 Act, which admittedly had been
passed by the Central Legislature, the power to make Rules have been
conferred under Section 33 upon the Central Government and none other.
There is no power conferred on the State to make rules under this Act.
Unless an amendment is made to the Act at least to the extent of
empowering the State to make rules, the State has no jurisdiction and power
to make or frame rules, it being an occupied field as the 1945 Rules have
already been framed by the Central Government in exercise of its powers
under Section 33 of 1940 Act.
48. That being so, the rules as framed by the State of Haryana i.e.
1989 Rules and 2018 Rules under proviso to Article 309 of the Constitution
of India cannot hold the field rather the 1945 Rules shall prevail and operate.
In the light of the above, the qualification as prescribed under the
advertisement dated 07.09.2015 making experience to be an essential
qualification for appointment to the post of Drugs Inspector (for Haryana
'Drugs Control Officer') cannot sustain.
49. As regards the argument of the counsel for the respondents that
there is no inconsistency between the statutory rules as framed under Article
309 of the Constitution and those framed by the Central Government in
exercise of its powers under Section 33 of the 1940 Act, qua this, suffice it to
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say that the said aspect need not to be gone into in the light of the fact that
there is no power conferred upon the State under the 1940 Act when the
rules have been framed by the Central Government under Section 33 which
are in operation and hold the field as it is not the case of the State or other
respondents that the said 1940 Act or the 1945 Rules have been amended or
repealed by the Parliament or the State Legislature.
50. With regard the contention of the learned Advocate General,
Haryana and Mr. Govind Goel, Advocate that the petitioners having
participated in the selection process and failed, cannot be permitted to turn
around challenging the validity of statutory rules by placing reliance upon
the judgment of the Division Bench of this Court in Bhupinder Kumar
Sharma Vs. State of Punjab and others' case (supra) and by Mr. Govind Goel
in the judgment of the Hon'ble Supreme Court in Anupal Singh's case
(supra), suffice it to say that where the challenge is to the jurisdiction and
authority of the State to frame rules and that to the source and power, the
said aspect cannot be an impediment or a bar to challenge the advertisement
even at a later stage. The bona fides cannot be questioned on this ground and
technicalities in itself cannot be a ground for denying a right to challenge an
illegality which emanates from a non-existent origin nor can the Court close its
eyes when the challenge is found to be sustainable on the basis of the lack of
jurisdiction itself.
51. As regards the stand of the learned Advocate General, Haryana,
as well as Mr. Govind Goel, relating to specifying the higher qualifications
than the essential qualifications prescribed for appointment which the
employer can and thus, cannot be said to be illegal, the said aspect need not
to be gone into for the simple reason that it has been held that the State of
Haryana did not have the power, authority and jurisdiction to make rules
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under Article 309 of the Constitution of India as 1945 Rules were holding
the field and the same being an occupied filed could not have been so pushed
into service to make it applicable as this would violate not only the
constitutional provision but the statutory provision also apart from the basic
principles of law and interpretation. The reason for saying so is that the State
of Haryana lacks authority to frame rules as under Section 33 of the 1940
Act, the power and jurisdiction to frame rules has been conferred only on the
Central Government and none else.
52. Another aspect which needs to be highlighted at this stage is
that mere selection for an advertised post does not confer an indefeasible
right upon the candidates for appointment against the post on which they
have been selected. Reference to the judgments of the Hon'ble Supreme
Court in Commissioner of Police and another Vs. Umesh Kumar 2020
(10) SCC 448, Punjab State Electricity Board Vs. Malkiat Singh (2005) 9
SCC 22 and Shankarsan Dash Vs. Union of India (1991) 3 SCC 47 on this
issue may be made.
53. In the present case, the private respondents are candidates find
their names in the list of selected candidates, which had been prepared by the
State but that alone would not entitle them for even consideration for
appointment to the post, where it has been found and held that the State of
Haryana did not have the authority and jurisdiction to frame rules under
Article 309 of the Constitution of India. Selection, if any, made in pursuance
to an advertisement based on such rules which have no feet to stand on and
would thus, in any eventuality, not confer any right much less a legal right
upon a candidate who finds its name included in the merit list.
54. Learned Advocate General, Haryana, has placed reliance upon
the judgment of a Division Bench in Priyanka and others Vs. Union Public
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Service Commission and others's case (supra), where the Division Bench had
dismissed the challenge made on the ground of the experience having been
made an essential qualification, suffice it to say that firstly Rule 49 of the
1945 Rules were not brought to the notice of the Court when the main writ
petition was decided and it is in the review application that such a contention
was raised. The said plea has also not been taken before the Central
Administrative Tribunal, Chandigarh Bench, Chandigarh and therefore, the
Division Bench had proceeded not to accept the challenge. We are afraid that
the said judgment in our considered view does not lay down the correct law
and therefore, the same is over-ruled in the light of our above reached
conclusions.
55. The Full Bench judgment of the Allahabad High Court in
Kuldeep Singh's case (supra) lays down the correct law and we are in
agreement with the same and similarly, the judgment of the Division Bench
of the Delhi High Court in Nidhi Pandey's case (supra), which judgment has
been uphold by the Hon'ble Supreme Court with the dismissal of the Special
Leave to Appeal (C) 3437-3456 of 2021, titled as 'Director General, Central
Drugs Standard Control Organization etc. Vs. Nidhi Pandey and another',
where under the similar circumstances as in the present case challenge to
making experience as an essential qualification for appointment to the post
of Drug Inspector has been accepted and the advertisement/Rules set aside
keeping in view the 1945 Rules which still hold the field as there has been
no amendment to the 1935 Act or the Rules framed thereunder by the
Competent Authority i.e. the Central Government.
56. The answers to the questions as have been referred to vide
order dated 25.08.2021 and as detailed in para 17 of this judgment has to be
in the negative i.e.
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1. The State Government could not have acted beyond the
statutory provisions contained in the Central Act and the 1945
Rules framed thereunder by prescribing qualifications invoking
Article 309 of the Constitution of India for this purpose;
2. The experience as contained in first proviso to Rule 49 of the
1945 Rules as framed by the Central Government and hold the
field cannot be made an essential qualification by the State
framing rules under Article 309 of the Constitution of India;
and
3. The rules framed by the State under Article 309 of the
Constitution of India do not have overriding effect over the
rules framed under Central statute, the primary legislation
governing recruitment of Drug Inspectors.
57. In the light of the above, challenge to the advertisement dated
10.09.2015 followed by corrigendum dated 04.06.2019 issued by the
Haryana Public Service Commission for recruitment to the post of Drug
Control Officer (Drug Inspector) being illegal, hereby succeeds. CWP
Nos.15067, 16790, 20396 of 2020; CWP Nos.12963, 17198, 12517 of 2021
are allowed and so is LPA No.700 of 2020 by setting aside the judgment
passed by the learned Single Judge dated 04.03.2020. The process initiated
for selection and appointment to the posts of Drug Inspector (Drug Control
Officer) in pursuance to the advertisement dated 10.09.2015 and
corrigendum dated 04.06.2019 is hereby quashed.
58. All the pending miscellaneous applications stand disposed of as
having been rendered infructuous.
(AUGUSTINE GEORGE MASIH)
JUDGE
9th September, 2022 (SANDEEP MOUDGIL)
Harish JUDGE
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ARUN MONGA, J.
1. I have had the privilege of reading the judgment authored by my
Learned Brother Augustine George Masih, J. as also agreed to by
learned brother Sandeep Moudgil, J. I too though concur with
operative part of the judgment for allowing the bunch of writ
petitions and LPA No. 70 of 2020, but would respectfully wish to add
my own independent reasons in support thereof.
2. Reference before us requires adjudication of the questions
substantially in the light of Rule 49 of the rugs & Cosmetics Rules,
1945 ( for short the 1945 Rules), framed under Section 33 of the
Drugs & Cosmetics Act,1940 ( for short the 1940 Act) vis-à-vis
Section 103 of Government of India Act, 1935, later retained as
Article 372 and read with Articles 252/254 and 309 of the
Constitution of India.
3. Succinctly, what has been held by my learned brothers is that since
1940 Act and the 1945 Rules framed thereunder continue to operate
till date and the competent State legislature having not exercised its
powers as envisaged under Article 372, to amend or repeal the 1940
Act and the 1945 Rules, the State Government, at present, is not
empowered to frame any rules and/or any parallel or collateral rules
qua the matters provided for in the 1940 Act and the 1945 Rules, as
it lacks such power, the same being in the exclusive domain of
Parliament/Central Government as per Section 33 of the Act ibid.
That apart, once the Central Government invoked its powers under
Section 33 to frame the rules on the subject matter, it is no more a
field unoccupied and thus, Article 309 of the Constitution of India
cannot be invoked to exercise powers of the State Legislature in an
occupied field.
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4. Having already got the benefit of what has been expressed eruditely
by my Learned Brother Masih J., I shall now proceed in my
endeavour.
5. Division bench reference order dated 25.08.2021 has arisen in a writ
petition, bearing CWP No. 15067 of 2020 (for brevity, recitals herein
are all therefrom), seeking quashing of the advertisement date
07.09.2015 (P-1); further quashing entry at S. No. 11 under Rule 7
of the Haryana Food and Drugs Administration Department
Subordinate Offices (Group B) Service Rules, 2018 and the
advertisement dated 07.07.2020 (P-7), and also for quashing letter
dated 07.07.2020 whereby the petitioner's candidature has been
rejected saying that he does not fulfill the condition of required
experience, the same being contrary to Rule 49 of the Drugs and
Cosmetics Rules, 1945.Initially, the Full Bench was constituted to
answer the reference made by the Division Bench but subsequently
CWP No.15067 of 2020 alongwith other bunch of similar writ
petitions and LPA No.700 of 2020 were all placed before the Full
Bench for final disposal thereof.
6. Before proceeding further, it is pertinent to note that the
qualifications for recruitment of Inspectors have been prescribed in
The Drugs & Cosmetics Rules, 1945 and not in The Drugs &
Cosmetics Act, 1940(for short -the Act). Section 21 the Act only
states that the Central Government or the State Government may
appoint such persons, as it thinks fit having the prescribed
qualifications, to be Inspectors for such areas as may be assigned to
them by the Central Government or the State Government, as the
case may be. This being the position, it appears that what the State
Government had in mind was the mandate of section 21 ibid, while
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framing Rule 7 and entry at serial No. 11 of Schedule B of the
Haryana Food &Drugs Administration Department Subordinate
Offices (Group B) Services Rules, 2018 (for short 2018 Service
Rules).
7. In the Drugs and Cosmetics Rules, 1945 (for short -Central Rules),
the experience is contained in the proviso to the Rule, whereas, in
the impugned Haryana Food and Drugs Administration Department
Subordinate Offices (Group B) Service Rules, 2018(the State Rules),
framed by the State under Article 309 of the Constitution, the
experience has been made as an essential qualification.
8. The very genesis of controversy is the advertisement dated
07.09.2015 originally published in respect of 4 posts of Drug Control
Officers (earlier known as Inspectors until amendment) read with
corrigendum dated 04.06.2019, increasing the total number of posts
to 26. Relevant extract of the advertisement is as below:-
"Advt.No.2 Date of Publication: 10.09.2015
The Commission invites online applications for recruitment to 4
posts of Drug Control Officer in Health Department, Haryana.
The break-up of posts is as under:-
Name of Post No. of Gen SC of BC(A) of
Posts Hry. Hry.
Officer in Health
Department,
Haryana.
x-x-x-x-x-x-x-x-x-x
Essential Qualifications:-
i. Second Class
Bachelor degree in
Pharmacy. OR
Pharmaceutical Chemistry.
ii. One and half years experience in manufacturing of
at least one of the substances specified in Schedule C
appended to the Drugs and Cosmetic Rules1945.
OR
One and half years experience in testing of at least
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one of the substances specified in the said Schedule
Cina laboratory approved for the purpose by the
licensing authority
OR
Three year experience in inspection of Firms
manufacturing any of the substances specified in the
said Schedule C
iii. Adequate knowledge of Hindi/Sanskrit.
iv. Note:-Experience prescribed as essential
qualification shall be reckoned from the date after
obtaining the prescribed minimum academic
qualifications.
xxxxxxxxxxxx
6. Duties:- To act as Drug Control Officer under the Drugs
and Cosmetics Act & Rules and to discharge any other duty
which may assigned anywhere within or outside the State of
Haryana.
xxxxxxxxxxxx"
9. Perusal of the advertisement above mentioned shows that the Drug
Control Officers to be recruited against the advertised posts are to
perform duties as may be prescribed by the competent authority.
10. In this regard, office memo dated 08.09.2009 issued by the competent
authority i.e. the Principal Secretary to Government of Haryana,
Health Department to the Director General, Health Services, Haryana
is of certain significance and for ready reference is being reproduced
herein below:-
1. "Sub: Distribution of work of Drugs Control
Officers and Senior Drugs Control Officers.
a. Reference your U.O. No. nil, dated
17.07.2009 on the subject noted above.
2. In exercise of powers conferred under Rule 60 of
Drugs & Cosmetic Rule, 1945, Government
grants permission to delegate powers by State
Drugs Controller, Haryana to Senior Drugs
Control Officers and Drugs Control Officers in
the State as under:-
1. Senior Issuing of retailer and
Drugs wholesaler licenses and
Control renewal of such licenses
Officers: in addition to their own
duties.
2.Drugs To conduct inspection of
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Control Drugs Manufacturing
Officers: Units in their respective
district in addition to
their present duties. "
The competent authority thus has exercised its power under Rule 60
of Drugs and Cosmetics Rule, 1945 to delegate the powers of
inspection (supra) to Drug control Officers.
11. The duties/powers of an Inspector to perform/conduct inspection of
the Drugs Manufacturing Units are covered under Rules 51 & 52 of
the 1945 Central Rules. Same are as under:-
"51. Duties of Inspectors of premises licensed
for sale.--Subject to the instructions of the
controlling authority, it shall be the duty of an
Inspector authorized to inspect premises
licensed for the sale of drugs--
(1) to inspect [not less than once a year] all
establishments licensed for the sale of drugs
within the area assigned to him;
(2) to satisfy himself that the conditions of the
licences are being observed;
(3) to procure and send for test or analysis, if
necessary, imported packages which he has
reason to suspect contain drugs being sold or
stocked or exhibited for sale in contravention of
the provisions of the Act or rules thereunder;
(4) to investigate any complaint in writing which
may be made to him;
(5) to institute prosecutions in respect of
breaches of the Act and rules thereunder;
(6) to maintain a record of all inspections made
and action taken by him in the performance of
his duties, including the taking of samples and
the seizure of stocks, and to submit copies of
such record to the controlling authority;
(7) to make such enquiries and inspections as
may be necessary to detect the sale of drugs in
contravention of the Act;
(8) when so authorized by the State Government,
to detain imported packages which he has
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reason to suspect contain drugs, the import of
which is prohibited.
52. Duties of inspectors specially authorised to
inspect the manufacture of 1[drugs or
cosmetics].--
Subject to the instructions of the controlling
authority it shall be the duty of an Inspector
authorized to inspect the manufacture of drugs--
(1) to inspect 2[not less than once a year], all
premises licensed for manufacture of 1[drugs or
cosmetics] within the area allotted to him to
satisfy himself that the conditions of the licence
and provisions of the Act and Rules thereunder
are being observed;
(2) in the case of establishments licensed to
manufacture products specified in Schedules C
and C (1) to inspect the plant and the process of
manufacture, the means employed for
standardizing and testing the drug, the methods
and place of storage, the technical qualifications
of the staff employed and all details of location,
construction and administration of the
establishment likely to affect the potency or
purity of the product;
(3) to send forthwith to the controlling authority
after each inspection a detailed report
indicating the conditions of the licence and
provisions of the Act and rules thereunder which
are being observed and the conditions and
provisions, if any, which are not being observed;
(4) to take samples of the drugs manufactured
on the premises and send them for test or
analysis in accordance with these Rules;
(5) to institute prosecutions in respect of
breaches of the Act and rules thereunder."
12. Rules 51 and 52 (supra) show that it shall be the duty of the
Inspector, inter alia, in the case of establishments licensed to
manufacture products specified in Schedules C and C (1) to inspect
the plant and the process of manufacture, the means employed for
standardizing and testing the drug, the methods and place of storage,
the technical qualifications of the staff employed and all details of
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location, construction and administration of the establishment likely
to affect the potency or purity of the product and to take appropriate
further steps/action. The first proviso below Rule 49 mandates that
only those Inspectors who possess the experience as specified therein
shall be authorized to inspect the manufacture of the substances
mentioned in Schedule C. There is no quibble about the same. But
the question here arises whether the experience as specified in the
first proviso below Rule 49 can be made as a pre-recruitment
eligibility condition under Rules 51 & 52 as against post-recruitment
experience envisaged in Rule 49 which precedes Rules 51 & 52.
13. Before adverting further, it would be pertinent to note that all the
learned counsel are ad idem that the subject matter of Drugs and
Cosmetics falls within the purview of List III (referred to as the
Concurrent List) in VIIth schedule of the Constitution. Vide clause
(2) of Article 246 of the Constitution, the Parliament and, subject to
clause (1), the Legislature of any State also, have power to make
laws with respect to any of the matters enumerated in the said List.
The matter of drugs and poisons appears at entry No. 19 of List III-
Concurrent List of the Constitution. Being so, one would have to
necessarily look into whether State Legislature has the competence
to enact, repeal and/or amend any part of the Central Rules, 1945
under the Drugs and Cosmetics Act- 1940 qua the subject matter
already covered thereunder. Applicability or otherwise of theory of
eclipse would assume significance in that context.
14. In that sense, Article 252 of the Constitution of India is also
significant. No doubt, Article 252 applies in a situation where the
subject matter is though exclusively in the State List, but two or
more States may by passing a resolution empower the Centre to
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make any enactment qua the State List. In such a scenario, State
shall subsequently be governed by theory of eclipse, in view of Sub-
Article (2) of Article 252, which clearly takes away the power of
State Legislature otherwise vested in it, in view of its own act of
empowering the Centre. It is a voluntary eclipsing of power by the
State, what is otherwise its constitutional privilege as per State List.
Whether the logic and theory of eclipse shall apply to a subject
matter falling in concurrent list or not, we shall have to analyze that
too.
15. For ready reference, Article 252 of the Constitution of India is as
below:-
"252. Power of Parliament to legislate for two or more
States by consent and adoption of such legislation by
any other State
(1) If it appears to the Legislatures of two or more
States to be desirable that any of the matters with
respect to which Parliament has no power to make laws
for the States except as provided in Articles 249 and
250 should be regulated in such States by Parliament
by law, and if resolutions to that effect are passed by
all the House of the Legislatures of those States, it shall
be lawful for Parliament to pass an Act for regulating
that matter accordingly, and any Act so passed shall
apply to such States and to any other State by which it
is adopted afterwards by resolution passed in that
behalf by the House or, where there are two Houses, by
each of the Houses of the Legislature of that State
(2) Any Act so passed by Parliament may be amended
or repealed by an Act of Parliament passed or adopted
in like manner but shall not, as respects any State to
which it applies, be amended or repealed by an Act of
the Legislature of that State."
16. As regards right to amend Central Act of 1940, applying the same
analogy of Article 252(2) i.e. if a State by resolving so, loses its
constitutional privilege in favour of Centre on a subject matter which
is exclusively on "State list", I see no reason how can the same
privilege be assumed to be still retained by the State qua a Central
Act on concurrent list, where the Centre has concurrent and, read
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with Article 254, an overriding jurisdiction. Especially, once the
State has itself resolved to surrender its privilege in favour of the
Centre. Therefore, State has no power to amend the Central Act in
the present case, unless its legislative Assembly rescinds the
resolution passed in favour of Centre.
17. It is in the context of eclipsing its own power to make rules under
the 1940 Act and to avoid treading in the Central domain, that the
States have from time to time invoked powers under Article 309 of
the Constitution of India to make rules regulating the recruitment
and conditions of service of its employees, in this case for the Drug
Inspectors/Drug Control Officers. Illustratively, reference may be
had to The Punjab Health Department (State Service, Class III, Drug
Inspectors) Rules, 1965 ; The Uttar Pradesh Inspectors of Drugs
Service Rules, 1980; Central Drugs Standard Control organization
(Drug Inspectors) Recruitment Rules, 1990; Central Drugs Standard
Control organization (Drug Inspectors) Recruitment Rules, 2010.As
recent as Central Drugs Standard Control organization (Drug
Inspectors) Recruitment DRAFT Rules, 2020 were also notified by
Centre for inviting objections, but it appears due to intervening covid
pandemic, the same have not been finalized. From this, it does seem
that qua the subject in the concurrent list, even if the State has
resolved to surrender its power of legislation to the Centre, still it
has the power to legislate for regulating the recruitment and
conditions of services of the Drug Inspectors/Drug Control Officers
in connection with the affairs of the State provided the State
legislation is not repugnant to the Central legislation.
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18. In the aforesaid background, theory of repugnancy as mandated
under Article 254 of the Constitution of India assumes even greater
importance. Article 254 is as below:-
" 254. Inconsistency between laws made by Parliament
and laws made by the Legislatures of States
(1) If any provision of a law made by the Legislature of
a State is repugnant to any provision of a law made by
Parliament which Parliament is competent to enact, or
to any provision of an existing law with respect to one
of the matters enumerated in the Concurrent List, then,
subject to the provisions of clause (2), the law
made by Parliament, whether passed before or after the
law made by the Legislature of such State, or, as the
case may be, the existing law, shall prevail and the law
made by the Legislature of the State shall, to the extent
of the repugnancy, be void
(2) Where a law made by the Legislature of a State with
respect to one of the matters enumerated in the
concurrent List contains any provision repugnant to the
provisions of an earlier law made by Parliament or an
existing law with respect to that matter, then, the law so
made by the Legislature of such State shall, if it has
been reserved for the consideration of the President
and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law with
respect to the same matter including a law adding to,
amending, varying or repealing the law so made by the
Legislature of the State."
19. The subject of drugs and poisons being at entry No. 19 in the
Concurrent List of VIIth Schedule of the Constitution, the power to
legislate is vested both with the Centre as well as the State.
20. Article 254 of the Constitution provides that if any provision of a
law made by the Legislature of a State is repugnant to any provision
of a law made by Parliament which Parliament is competent to enact,
or to any provision of an existing law with respect to one of the
matters enumerated in the Concurrent List, then, subject to the
provisions of clause (2), the law made by Parliament, whether passed
before or after the law made by the Legislature of such State, or, as
the case may be, the existing law, shall prevail and the law made by
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the Legislature of the State shall, to the extent of the repugnancy, be
void. Indisputably, clause (2) of the Article ibid is not attracted in
this case.
21. Therefore, even though Centre has already exercised its power to
make Rules under the enabling provision of Section 33 of Act, yet I
am of the opinion that the State Government also has the power
under Article 309 of the Constitution of India to make rules
regulating the recruitment and conditions of service of Drug
Inspectors/Drug Control Officers appointed in connection with the
affairs of the State including prescription of qualifications but the
parallel rules made by State ought not to be in conflict with the
provisions made in the Central Rules.
22. According to Black's Law Dictionary, repugnancy means an
inconsistency or contradiction between two or more parts of a legal
instrument (such as a contract or statute).
23. In order to test the applicability of rule of repugnancy, what is
required to be seen is in the event of State legislature having
exercised its power in the domain of Concurrent List where Central
legislation also pre-exists, the obedience of State statute must not
result in the disobedience of the Central statute/Rule. In other
words, the right created by the Central statute/Rule should not in
any manner be abridged by the State statute/Rule.
24. Rule 49 as already reproduced in the main judgment may be also
seen at this stage.
25. Preamble of the 1940 Act shows that it was enacted to regulate the
import, manufacture, distribution and sale of drugs and cosmetics.
26. Under Rule 49 of the Central Rules, a person who is appointed an
Inspector under the Act shall be a person who has a degree in
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Pharmacy or Pharmaceutical Sciences or Medicine with
specialization in Clinical Pharmacology or Microbiology from a
University established in India by law: Provided that only those
Inspectors -(i) who have not less than 18 months experience in the
manufacture of at least one of the substances specified in Schedule
C, or (ii) who have not less than 18 months experience in the 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 firm manufacturing any of the substances specified in
Schedule C during the tenure of their services as Drug Inspectors;
shall be authorized to inspect the manufacture of substances in
Schedule C. As against this, under Rules 51-52 of the said Rules,
from day one, it shall be the duty of an Inspector to inspect the
manufacture of drugs or cosmetics including the manufacture of the
substances mentioned in Schedule C and take the required
steps/action as mentioned therein. In the absence of prescription of
requisite experience of not less than 18 months in the manufacture or
testing of at least one of the substances specified in Schedule C,
persons not having such experience if appointed as Inspectors, will
not be authorized/competent to inspect the manufacture of the
substances mentioned in Schedule C and take the required
steps/action until they 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 Drug Inspectors. Till then, they would not be authorized
and shall remain under prohibition against performing the
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important part of their functions to inspect the manufacture of the
substances mentioned in Schedule C.
27. Thus, it seems to me that there is a gap between the content and
intent of the Central Rules. Rule 49 does not prescribe the
experience as an essential requirement for initial appointment as
Inspector, but the intent obvious from an overall reading of the
1945 Rules seems that from day one the duties of the Inspectors
are, inter alia, to inspect the manufacture of substances mentioned in
Schedule C and to take steps/action in terms of Rule 52 of the 1945
Rules. This lacuna leaves scope for consequences against the
overall object, purposes and spirit of the Central Rules i.e.
duty/power of the Inspector from day one, inter alia, to inspect the
manufacture of substances mentioned in Schedule C.
28. Let us now see whether the action of the State Government in
enacting the 2018 Service Rules has resulted in any repugnancy
qua Central rules.
29. As against the Central Rules, vide entry at serial No.11 of schedule
B read with Rule 7 of the State Rules, the experience has been
made an essential qualification for initial appointment. It was open
to the State while prescribing the experience as an essential
requirement, to specify thereunder that from initial appointment,
from day one itself, a person appointed will be required,
authorized and competent to inspect the manufacture of substances
mentioned in Schedule C and take the required steps/action as
prescribed. But that was not done by the State. Had it been so done,
the provision thus made in the State Rules, in essence would have
covered and taken care of the apparent gap/ lacuna in the Central
Rules and would have been in aid of the Central Rules requiring
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the Inspectors from day one to inspect the manufacture of
substances mentioned in Schedule C , in terms of Rule 52 of the
1945 Rules by virtue of having pre recruitment work experience. It
could be then said that the entry at serial No. 11 of schedule B
read with Rule 7 of the State Rules, whereby the experience had
been made an essential qualification for initial appointment, was in
fact, in aid, advancement and promotion of the objects and
purposes of the Central Act/Rules.
30. A perusal of Central rules would reflect that they give a statutory
right to the candidates who do not have any experience, to apply for
the post of Drug Control Inspectors/Officers on the basis of their
simply having gained the requisite academic qualification. Is that
right in any manner diluted and/or abridged by the State Rules and/or
does the obedience of State rules cause any disobedience to Central
rules qua the said right, is the question?
31. As noted, the Central rules give a statutory right to the candidates
who do not have any experience, to apply for the post of Drug
Control Inspectors/Officers on the basis of their simply having
gained the requisite academic qualification. Against this, the State
Rules prescribe the possession of requisite experience as an essential
eligibility qualifications for post in question and thus debar the
candidates, who do not possess the requisite experience from
consideration for the post. In this way, the eligibility and right of
consideration of such candidates, who do not possess the requisite
experience, is denied/taken away by the State Rules and thus, the
State Rules cause disobedience to Central rules. To that extent, the
impugned State rule has, therefore, to be held repugnant to the
Central Rules.
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32. Learned counsel for the petitioners heavily relied upon the full bench
judgment in Kuldeep Singh vs. State of U.P.1 In that case, for
direct recruitment of Drug Inspectors, the essential qualifications
prescribed under the U.P. State Drug Control Gazetted Officers'
Service Rules, 1995were a degree in Pharmacy or Pharmaceutical
Sciences or Medicine with specialization in Clinical Pharmacology
or Microbiology from a University established in India by law. To
be noted, initially the vacancies were advertised with the same
eligibility requirements. However, later on, the Uttar Pradesh Public
Service Commission issued a corrigendum dated 09.07. 2010, on the
directions of the State Government, and thereby stipulated as part of
the essential qualifications required for the post, at least eighteen
months' experience of testing of at least one of the substances
mentioned in Schedule C to the Rules or at least eighteen months'
experience in the manufacture of one of the substances specified in
Schedule C or three years' experience in the inspection of firms
manufacturing any of the substances specified in Schedule C
licensed for the manufacture of drugs. It seems obvious from the
Full Bench judgment that relevant UP State Rules did not
prescribe the experience, as essential qualifications, as was
mentioned in the corrigendum to the advertisement.
33. Allahabad High Court Full Bench also noted that the Service Rules
of 1995 in the State of Uttar Pradesh, in fact, were a clear
recognition of the acceptance by the State of this position; Rule 8 of
the Service Rules of 1995 adopted, as qualifications for direct
recruitment to the post of Inspector of Drugs, those which have been
prescribed in the rules made by the Central Government in
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accordance with the provisions of Section 33 of the Drugs and
Cosmetics Act, 1940; hence, the qualifications which are prescribed
in Rule 49 of the Central Rules were incorporated for the
recruitment of candidates as Drug Inspectors in the State service;
Rule 21(1)(a) of the Service Rules of 1995 which speaks of the
confirmation of a probationer, provided that a probationer shall be
confirmed at the end of the period of probation or the extended
period of probation if he has acquired 18 months' experience in
testing of a Schedule C substance in an approved laboratory; or has
acquired 18 months' experience in the manufacture of a Schedule C
substance as specified in the Drugs and Cosmetics Rules, 1945;
Rule 21 (1) (a) of the State Service Rules 1995 was a clear indicator
of the position that the acquisition of experience in the testing or
manufacture of a Schedule C substance of a period of 18 months can
take place after the appointment of a person as an Inspector of Drugs
but before an order of confirmation is issued under Rule 21; and that
if, as the State had then asserted before the bench, experience was a
condition of eligibility, there would be no occasion to provide for the
acquisition of experience as a condition for confirmation of the
services of a probationer. On the contrary, Rule 21(1)(a) was
indicative of the fact that a probationer may acquire the experience
after appointment in service, but before an order of confirmation can
be issued.
34. Full Bench supra also held that it is always open to the legislature or
its delegate to suitably amend a statutory provision or, as in the
present case, subordinate legislation to make the holding of the
requisite experience as a condition of eligibility or a qualification for
appointment but, that would have to be by an amendment of the
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subordinate legislation. In these circumstances, it was held by
interpreting Rule 49 of the Central Rules that the experience
referred to in the first proviso thereof had not been made an
essential qualification for appointment as a Drug Inspector and that
the effect of the first proviso is that only an Inspector who holds the
experience as specified in it is authorized to inspect the manufacture
of a substance specified in Schedule C to the Rules.
35. Reference may, in particular, be had to para 17 of Full Bench
judgment in Kuldeep Singh ibid. Speaking for the Bench, Dilip
Gupta, J. inter alia expressed as below:-
"17. The Service Rules of 1995 in the State of
Uttar Pradesh, in fact, are a clear recognition of
the acceptance by the State of this position. Rule
8 of the Service Rules of 1995 adopts, as
qualifications for direct recruitment to the post
of Inspector of Drugs, those which have been
prescribed in the rules made by the Central
Government in accordance with the provisions
of Section 21 of the Drugs and Cosmetics Act,
1940. Hence, the qualifications which are
prescribed in Rule 49 of the Central Rules are
incorporated for the recruitment of candidates
as Drug Inspectors in the state service. Rule
21(1)(a) of the Service Rules of 1995 which
speaks of the confirmation of a probationer,
provides that a probationer shall be confirmed
at the end of the period of probation or the
extended period of probation if he has acquired
18 months' experience in testing of a Schedule C
substance in an approved laboratory; or has
acquired 18 months' experience in the
manufacture of a Schedule C substance as
specified in the Drugs and Cosmetics Rules,
1945. Rule 21 (1) (a) of the State Service Rules
1995 is a clear indicator of the position that the
acquisition of experience in the testing or
manufacture of a Schedule C substance of a
period of 18 months can take place after the
appointment of a person as an Inspector of
Drugs but before an order of confirmation is
issued under Rule 21. If, as the State now
asserts, experience was a condition of eligibility,
there would be no occasion to provide for the
acquisition of experience as a condition for
confirmation of the services of a probationer.
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On the contrary, Rule 21(1)(a) is indicative of
the fact that a probationer may acquire the
experience after appointment in service but
before an order of confirmation can be issued."
36. Having perused the said Full Bench judgment, I am of the view that
it is held therein that it is always open to the Legislature or its
Delegate to suitably amend a statutory provision or, as in the present
case subordinate legislation to make the holding of the requisite
experience as a condition of eligibility or a qualification for
appointment but, that would have to be by way of an amendment by
the subordinate legislation. It was in this premise that Full Bench
held, by interpreting Rule 49 of the Central Rules, that since the
experience referred under the first proviso thereof has not been made
an essential qualification for appointment as a Drug Inspector, the
effect of the first proviso has to be necessarily that a serving
Inspector who holds the requisite experience is competent to inspect
the Manufacturing Units of the substances, as specified in Schedule
'C' to the Rules.
37. In Kuldeep Singh supra, the advertisement was at variance with the
relevant UP Rules. It is not so in the instant case. Here, the Haryana
State Rules have been framed by the competent authority in exercise
of the powers under Article 309 of the Constitution. Full Bench
Judgment in Kuldeep Singh's case therefore, does not help the
petitioners herein, being placed in the different facts and
circumstances than in UP. If anything, the said judgment rather
seems to support the respondents' stand that the State has the power
to legislate to regulate the recruitment and conditions of service of its
employees. In Union Public Service Commission Vs. Nidhi
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Pandey and another2, Division Bench of Delhi High Court mainly
relied upon the Full Bench judgment of Allahabad High Court in
Kuldeep Singh supra. SLP against Nidhi Pandey judgment was
dismissed in-limine vide an order dated 05.04.2021 passed by the
Apex Court. I have since already opined that Full Bench judgment
of Allahabad High Court does not help the petitioners herein,
beingplaced in the different facts and circumstances than in UP. It
follows , therefore, that the Division Bench judgment of Delhi High
Court in Nidhi Pandey's case and the dismissal of SLP against it
by the Apex Court also are of no help to the petitioners.
38. Undisputedly, Article 309 of the Constitution of India empowers the
State legislature, of course subject to the other provisions of
Constitution, to regulate the recruitment and conditions of service of
persons appointed or to be appointed to public services/posts in
connection with the affairs of the State. In present case, the Drug
Control Officers are required to be appointed to carry out their duties
in connection with the affairs of the State under the administrative
control of the competent authority-the department of Health and
Family Welfare. It seems that power of the State under Article 309
of the Constitution to make rules regulating the recruitment and
conditions of service of its employees, includes the power to
prescribe qualifications and lay down certain other requirements for
recruitment and conditions of service e.g. minimum and maximum
age, domicile, probation, confirmation, promotion etc. Central
Rules are silent on such other requirements. It seems that the
power of the State under Article 309 of the Constitution to make
rules regulating the recruitment and conditions of service of its
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employees, is wider than the Centre's enabling power under
Section 33 of the Act to make rules prescribing qualifications for
Inspectors.
39. Section 33 of the 1940 Act is an enabling provision for the Central
Government to make rules for giving effect to the provisions of the
Act , including the prescription of qualifications for Inspectors. It
does not seem to altogether wipe out or wholly prohibit the
exercise of the power by the State to make rules regulating the
recruitment and conditions of service of its employees. If the State
were to be wholly barred from making rules for recruitment and
conditions of service of its employees, in this case the Inspectors,
there would be a vacuum left qua such other requirements to be
prescribed for recruitment and conditions of service e.g. minimum
and maximum age, domicile, probation, confirmation, promotion
etc. Taken to its extreme, it would mean that the State cannot
recruit any inspector, which would be a situation of vacuum. Trite it
is to say, law abhors vacuum.
40. It would be unrealistic and defying logic to say that the field
having been occupied by the 1945 Central Rules, the State cannot
at all, in absolute terms, make Rules in exercise of its powers under
Article 309 to frame rules regulating the recruitment and
conditions of service of its employees. It seems to me that the State
has the power under Article 309 to make rules for recruitment and
conditions of service of its employees, including the prescription of
qualifications. Of course, the effect of the Central legislation/Rules
is, that such rules made by the State should not be in conflict with
the Central legislation/Rules. I may attempt to explain it by a
hypothetical illustration. Suppose, the State Rules had provided
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exactly the same qualifications for Inspectors as in the Central
Rules. Could it be said even then that the State Rules were bad in
law, having been made in the field occupied by the Central Rules?
The obvious answer would be 'no'.
41. Here the State Rules, as framed, seem to be an attempt to cover the
gap between the content and intent of the Central Rules. Woefully,
even that attempt too is not successful, inasmuch as, the State Rules
do not prescribe that from initial appointment, the Inspectors from
day one will be required inter alia to inspect the manufacture of
substances in Schedule C of the Central legislation.
42. It would not be out of place to state that Rule 49 of Central Rules
prescribes the requirements for eligibility/competency of certain set
of Inspectors to perform their duties under Rule 51ibid. In my
opinion, Rules 49, 51 & 52 have to be read together and obedience
of all has to be ensured and any rule framed by the State, to the
extent of its conflict with the Central Rules will have to necessarily
make way for the latter.
43. Speaking of position in law, I am thus of the view that the State
Government could exercise and has exercised its power under
Article 309 of the Constitution of India to frame rules regulating
the recruitment and conditions of service of Drug Inspectors/Drug
Control Officers. In fact, similar exercise has also been carried out
by other States viz. Uttar Pradesh Government, Punjab and
Maharashtra Government and even the Central Government to frame
independent rules of recruitment which includes prescription of
qualifications.
44. It has been contended by Sh. B.R. Mahajan, the learned Advocate
General that the test of the occupied field has to be seen from the
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kaleidoscope of competent authority exercising its power of making
general rules or the special rules. It is pointed out that there is an
apparent gap between the content and intent of the Central Rules, in
so far Rule 49 does not prescribe the experience as an essential
requirement for initial appointment as Inspector, but the intent
obvious from an overall reading of the 1945 Rules seems that
from day one the duties of the Inspectors are, inter alia, to inspect
the manufacture of substances mentioned in Schedule C in terms of
Rule 52 of the 1945 Rules. That apart, the general rules of 1945
framed by Centre essentially regulate the standard and quality of
drugs as against the special rules framed by the State Government
under Article 309 of the Constitution of India governing the process
of recruitment including prescription of qualifications. He would
vehemently submit that, even otherwise, once special rules are
enacted by the State in exercise of its powers under Article 309 of
the Constitution of India then the same override the general 1945
rules framed by the Central Government.
45. In the premise, it is thus contended on behalf of the State, that its
Rules being special in nature should override the Central Rules
(termed as general in nature), to the extent of inconsistency inter se.
However, I am unable to accept this contention. There is indeed a
conflict inter se the Central legislation and the State legislation on
concurrent list subject, but in view of the mandate of Article 254 of
the Constitution of India, the Central legislation must prevail. The
proposition as canvassed by learned Advocate General would be
applicable, in a case where the state legislature enacts special and
general rules on the same subject matter and there is some conflict
inter se. As already observed above, the eligibility and right of
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consideration of such candidates, who do not possess the requisite
experience, provided for under the Central Rules, is denied/taken
away by the State Rules and thus, the State Rules cause
disobedience to Central rules. To that extent, the impugned State rule
has, therefore, to be held repugnant to the Central Rules and has to
give way to the Central Rules.
46. Sh. Govind Goel, learned counsel appearing for the private
respondents (selected candidates) vehemently argued that there is no
inconsistency since the very purpose of the current recruitment is
that the duties assigned to the current Inspectors from day one would
include inspection of the Drugs Manufacturing Units. I am afraid, I
am able to persuade myself to accept his contention.
47. A perusal of the advertisement would reflect that it is nowhere stated
therein that the recruitment is for a special class of
Inspectors/Officers, who shall be required from day one to perform
the duties, inter alia, to inspect the manufacture of substances
mentioned in Schedule C and, take steps/action in terms of Rule 52
of the 1945 Rules and, therefore, instead of post-recruitment
essential experience, as envisaged under Rule 45 of the Centre rules,
under the impugned rule, the requirement of experience was being
made mandatory as a pre-recruitment eligibility condition. The
advertisement in question also rightly does not envisage any such
things. The reason is not far to seek. The advertisement has to be
inconsonance with the rules of recruitment framed by the State
Government.
48. Qua the argument on theory of eclipse, in the light of Section 103 of
1935 Act read with Article 372 of the Constitution of India, I am of
the opinion that in view of the State Assembly resolution
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empowering the Centre to legislate on the subject by way of enacting
Drugs and Cosmetics Act, 1940 and to make rules thereunder, the
State Legislature, having once clipped its own wings, can-not fly in a
sky which is now in the Centre's domain. State is thus precluded to
frame any rules under Section 33 of the Act ibid in view of Article
252 (2) of constitution of India. Had the State chosen to
rescind/amend the Assembly resolution empowering the Centre to
make Rules under the Act and then proceeded itself to make its
own Rules under the Act on the subject matter then it would have
been an altogether different scenario.
49. However, such eclipse of the State's powers under Section 33 of
the 1940 Act would not take away or negate its power under Article
309 of the Constitution of India to make Rules regulating the
recruitment and conditions of service of Drug Inspectors/Drug
Control Officers recruited in connection with the affairs of the
State.
50. In M/s R.M.D.C. Mysore vs. State of Mysore3 , relied upon by the
learned counsel for the petitioner, it was noted that the subject of
betting and gambling given in entry 34 of List II and the taxes on
betting and gambling as given in entry 62 of List II were to be read
as separate powers and, therefore, when control and regulation of
prize competitions was surrendered to Parliament by resolutions of
the State Legislature, the power to tax under entry 62 of List II,
which is a separate head, cannot be said to have been surrendered. It
is not the case of the petitioners herein that the State Legislature
had passed any resolution for the surrender of its Constitutional
power under Article 309 of the Constitution of India, to regulate the
1962 AIR (SC) 594
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recruitment and conditions of service of persons appointed to public
services and posts in connection with the affairs of the State. It
cannot, therefore, be said that the State has abdicated or lost its
Constitutional power of legislation in this behalf or that such
power is exclusively vested in the Central Government. The
judgment ibid does not, therefore, help the petitioners.
51. Learned Advocate General would also emphatically argue that
essential qualifications for appointment to post are for the employer
to decide and, the employer can and may prescribe additional
requirements to augment the essential, including giving preference
for work experience.
52. In A.P.J. Abdul Kalam Technological University vs. Jai Bharath
College of Management & Engg. Technology4, Supreme Court
has held that while it is not open to the Universities to dilute the
norms and standards prescribed by AICTE (All India Council of
Technical Education), it is always open to the Universities to
prescribe enhanced norms. An earlier judgment rendered in R.
Chitralekha vs. State of Mysore5 was in turn relied upon, wherein a
Constitution Bench of Supreme Court had enunciated that the
question regarding the impact of Entry 66 of List-I on Entry25 of
List-III must be determined by a reading of the Central Act and the
State Act conjointly and, thus held that a State Law providing for
such standards, having regard to Entry 66 of List-I, would be struck
down as unconstitutional, only if, the same is found to be so heavy or
devastating, as to wipe out or appreciably abridge the Central field,
and not otherwise. It was also held that when a State Act is in aid of
the Parliamentary Act, the same would not entrench upon the latter.
(2021) 2 SCC 564
AIR 1964 SC 1823
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If a State law prescribes higher percentage of marks for
extracurricular activities in the matter of admissions to colleges, it
cannot be thus said that it would be encroaching on the field covered
by Entry 66 of List-I and held that when a State Act is in aid of the
Parliamentary Act, the same would not entrench upon the latter.
53. No doubt, the Central Act and the Central Rules here also do not
prohibit the competent authority- expressly or impliedly - against
prescribing the additional requirement of experience as an
essential condition for initial appointment of the Inspectors over and
above the qualifications prescribed in the Central Rules. However, in
my opinion any such prescription has to be within the constitutional
framework. In case of conflict between State and Central
legislation/Rules, on the particular subject in concurrent list, the
mandate of Article 254 comes into play and the State Rule has to
give way to the Central Rule to the extent of conflict therewith.
54. To sum up the broad principles, I may succinctly put the same as
below :-
1. Article 309 of the Constitution empowers the State
Legislature/Government, of course, subject to the
provisions of Constitution to regulate the recruitment and
conditions of service of persons appointed to public
services and posts in connection with the affairs of the
state.
2. This Constitutional power of the State government under
Article 309 is wider than the Statutory power of
Parliament/ Central Government under section 33 of the
Drugs and Cosmetics Act, read with 1945 Rules, which
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only prescribe the qualifications for appointment of drug
inspectors.
3. Power of the Parliament Central government, limited to the
prescription of qualifications for appointment of drug
inspectors, does not exclude the powers of the State
government to regulate the other requirements of the
recruitment and conditions of service e.g. minimum and
maximum age, domicile, probation, confirmation,
promotion etc. Otherwise, there would be vacuum left for
regulating other requirements for their recruitment and
conditions of service. Central Rules are silent on these
things. If the State too were to be wholly barred from
making such rules for recruitment and conditions of
service of its employees, thentaken to its extreme, it
would mean that the State cannot recruit any inspector.
4. It cannot, therefore, be said that the field is wholly
occupied by Central Act/Rules or that State
Legislature/Government is totally prohibited from entering
into the partially unoccupied area.
5. On a subject in the concurrent list, the state legislature can
further advance the purpose and object of the Central
Act/Rules, by supplementing the eligibility conditions and
adding the requirement of experience for appointment. Of
course the effect of the Central legislation/Rules is that
State rules should not be in conflict with the Central
legislation/Rules.
6. The provisions of Constitution of India, Central Act and
Rules there under and the State Rules need to be
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harmoniously construed. In the event of conflict,
Constitutional provision flowed by Central Act/Rules and
then State Act/Rules shall prevail in that order.
7. Here the State Rules, as framed, seem an attempt to cover
the gap between the content and intent of the Central
Rules. Despondently, even that attempt too is not
successful, in as much as, the State Rules do not
prescribe that from the very initial appointment, the
Inspectors will be required inter alia to inspect the
manufacture of substances in Schedule C of the Central
legislation from day one itself.
55. Resultantly, as an upshot of the above discussion, I am of the
opinion that the impugned part of State Rules framed by the State
under Article 309 of the Constitution governing recruitment of Drug
Inspectors (re-designated as Drug Control Officer), to the extent
and, in the manner, in which it prescribes the condition of
experience as an essential requirement of eligibility for initial
appointment is indeed repugnant to the Central rules. In other words,
I do find that the same would indeed, either heavily or devastatingly,
wipe out the Central Rules. Thus the impugned part of State Rules is
held to be in conflict with the former. It is also held that the
impugned part of Rules as framed by the State under Article 309 of
the Constitution is not in aid of the Central Rules, prescribing the
eligibility conditions for initial recruitment of Drug Inspectors/ Drug
Control Officers.
56. Having recorded my limited dissenting opinion for the reasons as
stated above, I respectfully answer the reference by the Division
Bench as below:-
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REFERENCE ANSWER
A. Though Section 21 of 1940 Act (i) The State Government, in
clearly lays down that appointment exercise of its powers under Article
shall be made as per the 309 of the Constitution framed Rule
qualifications prescribed, which 7 and entry at serial No. 11 of
would normally indicate the Schedule B of the Haryana Food &
qualifications prescribed in Central Drugs Administration Department
statute, but State Government Subordinate Offices (Group B)
invoked Article 309 of the Services Rules, 2018 ( for short
Constitution of India and prescribed 2018 Service Rules). By doing so, it
qualifications different from that did not act beyond the statutory
prescribed by the Central provisions contained in the Drugs
Government. Undisputedly, the and Cosmetics Act, 1940.The first
matter falls in the realm of List III, part of question No.1 framed above
the State Government never choose is answered accordingly.
to enact its legislation. Merely, for
the purpose of laying down The State Government could
qualification, it invoked Article 309 in exercise of its powers under
of the Constitution of India. In such Article 309 of the Constitution India
circumstances, it needs to be frame Rules prescribing the
examined as under:- qualifications for appointment of
Drug Inspectors/Drug Control
i. Whether invocation of such Officers, even in the field already
powers would be sustainable in occupied by the Central Rules so
law? long as the State Rules were/are not
conflict with the Central Rules. The
ii. Whether it would be hit by second part of question No. 1 is
doctrine of eclipse? answered accordingly.
iii. Whether notification needs to (ii) The experience as contained in
be examined in light of the first proviso to Rule 49 of the
provisions of Article 252 and Central Rules could/can be made
254 of Constitution of India? an essential qualification by the
State framing the Rules under
Article 309 of the Constitution of
India, provided it was specified in
the State Rules that from day one the
duties of the persons appointed shall
include, inter alia, to inspect the
manufacture of substances
mentioned in Schedule C and take
steps/action in terms of Rule 52 of
the 1945 Rules. Question No. (2) is
answered accordingly.
(iii) The impugned part of Rules
framed by the State to the extent and
in the manner in which it prescribes
the condition of experience as an
essential requirement of eligibility
for initial appointment of Drug
Inspector is indeed repugnant to the
Central rules and does not have over
riding effect over the Central Rules.
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B. Whether State Government could Constitutional power under 309 to
have acted beyond the statutory regulate recruitment and conditions
provisions contained in the Central of service, including prescription of
Act i.e. Sections 21 and 33 of the qualifications, can be exercised by
Act and Rules framed thereunder, State but inconformity with Article
prescribing qualifications and 254.
invoking Article 309 for this
purpose.
C. Whether the Rules framed by the Central Rules shall prevail over
State under Article 309 of the those of State, in the event of any
Constitution would have overriding conflict.
effect over the rules framed under
Central statute, the primary
legislation governing the
recruitment of Drug Inspectors.
57. In the ultimate analysis, however, I concur with the operative part
and direction in the judgment authored by my learned brother
Augustine George Masih, J. and agreed to by my learned brother
Sandeep Moudgil, J. for setting aside the impugned advertisement
and selection made pursuant thereto.
58. Before parting, it needs mention that the impugned advertisement
was issued on 07.09.015; selection was finalized in 2020; but the
appointments of the selected candidates remained stayed by virtue of
interim orders of this Court and the advertisement and the selections
are being quashed now in year 2022. In the meantime, a
considerable number of qualified candidates, who were eligible at
the relevant time, would/may have become overage. In fairness to
them, the official respondents are expected to give an appropriate
relaxation of upper age limit in the fresh selection to such
candidates.
9th September, 2022 (ARUN MONGA)
ashish JUDGE
Whether speaking/reasoned: Yes
Whether reportable: Yes
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