P.Elango v. The State of Tamil Nadurep.by its SecretaryDepartment of Health & Family WelfareFort St.George, Chennai 600 009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 06.11.2009CORAM:THE HON’BLE MR. JUSTICE K.CHANDRUW.P.No.11973 of 2009& M.P.Nos. 1 to 3 of 2009P.Elango.. PetitionerVs.1.The State of Tamil Nadurep.by its SecretaryDepartment of Health & Family WelfareFort St.George, Chennai 600 0092.The Director of Medical Services &Family Planning,Chennai 600 0183.The Director of Drugs ControlChennai 600 0064.The SecretaryTamil Nadu Public Service Commission Omandurar Government EstateAnna SalaiChennai 600 002 .. RespondentsPrayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of Certiorari to call for the records of the 4threspondent with respect to the Notifications/Advertisement No.198published in THE HINDU dated 5.4.2009 and quash the same as it isultra vires the Drugs and Cosmetics Act, 1940, 1945 rules violativeof articles 14, 19(1)(g) and 21 of the Constitution of India.For Petitioner :: Mr.V.C.Janarthanam For Respondents :: Mr.R.P.Kabilan, AAG assisted by Mr.A.C.Mani Bharathi for R1 to R3 Ms.C.N.G.Ezhilarasi for R4 https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe petitioner claims to be qualified for the post of Pharmacistholding a Degree in Bachelor of Pharmacy and also had registered hisname with the Tamil Nadu Pharmacy Council. He had also registeredhis name in the Employment Exchange. He claims that he is alsohaving sufficient experience in the field of drug manufacturing andinspection of manufacturing units. 2.He applied for the post of Drug Inspector and was oncecalled for an interview by the Union Public Service Commission, NewDelhi. He was not selected on merits. He is now 42 years old andhad crossed the age for making any application for the post in theState service.3. The petitioner after coming to know of advertisement given bythe Tamil Nadu Public Service Commission, namely the 4th respondentvide its Notification/advertisement No.198 published in THE HINDUnewspaper dated 5.4.2009 has filed the present Writ Petition. 4. A copy of the said advertisement is enclosed in the typed setof papers. The said advertisement called for applications for thepost of Drug Inspectors in respect of 24 vacancies. The educationalqualification prescribed in para 4(B) reads as follows:"(B) EDUCATIONAL QUALIFICTION: Candidates should possess onthe date this Notification, viz., 4.4.2009, the followingor its equivalent qualification awarded by a University orInstitution recognised by the University Grants Commission for the purpose of its grant.A Degree in Pharmacy or Pharmaceutical Sciences or aDegree in Medicine with specialisation in ClinicalPharmacology or Microbiology.Persons claiming equivalent of qualification shouldenclose evidence for such claims."The applicants were subjected to written examination and viva vocetest. For selection, rules of reservation also has been prescribed.5. The grievance of the petitioner is that the qualificationprescribed in the advertisement by the Tamil Nadu Public ServiceCommission is not in conformity with proviso to Rule 49 of the Drugsand Cosmetics Rules, 1945. The said Rule reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "49. Qualification of Inspectors:- A person who isappointed an Inspector under the Act shall be a person whohas a degree in Pharmacy or Pharmaceutical Sciences orMedicine with specialisation in Clinical Pharmacology orMicrobiology from a University established in India by law:Provided that only those Inspectors:-(i) who have not less 18 months' experience in themanufacture of at lease one of the substancesspecified in Schedule C; or(ii) who have not less than 18 months' experiencein testing of at least one of the substances inSchedule C in a Laboratory approved for thispurpose by the licensing authority; or(iii) who have gained experience of not less thanthree years in the inspection of firmsmanufacturing any of the substances specified inSchedule C during the tenure of their services asDrugs Inspectors;shall be authorised to inspect the manufacture ofthe substances mentioned in Schedule C;(Provided further that the requirement as tothe academic qualification shall not apply topersons appointed as Inspectors on or before the18th day of October, 1993.)(Emphasis added)6. According to the petitioner, the advertisement thoughprescribes educational qualification in terms of the Rule, in so faras it did not include the prescription of minimum experience providedtherein, the advertisement is ultra vires of the Drugs and CosmeticsRules, 1945 and the Drugs and Cosmetics Act, 1940. 7. Pending the Writ Petition, the petitioner was able topersuade this Court for an interim order, stating that the proviso toRule 49 of the Drugs and Cosmetics Rules, 1945 has not beenincorporated in the advertisement. On being persuaded that theproviso to Rule 49 was not incorporated in the said advertisment, aninterim order was granted by this Court.8. On notice from this Court, the 4th respondent has filed acounter affidavit dated 10.7.2009. They have also produced an orderof the Government in G.O.Ms.No.74, Health Department dated 18.2.2009amending the Special Rules for Tamil Nadu Medical Service with https://hcservices.ecourts.gov.in/hcservices/ reference to the Category-3, Drugs Inspectors. The qualificationfor the said post has been prescribed, which is as follows:"Must possess a degree in Pharmacy or PharmaceuticalSciences or Medicine with specialisation in ClinicalPharmacology or Microbiology from a University orInstitution recognised by the University Grants Commissionfor the purpose of its grant".The amendment has come into force from 18.2.2009.9. In the counter affidavit filed, it was stated that theearlier rule for Drug Inspector, amended in G.O.Ms.No.708, Healthdated 11.11.1995, containing the verbatim reproduction of Rule 49 wassubstituted by the present amendment. The Government felt that therewas absolutely necessary to delete the experience qualification andto specify the educational qualification alone to cater to the needsof the Department and have issued orders revising the educationalqualification prescribed for appointment to the post of DrugInspector by direct recruitment. 10. The preamble to the said Government Order amending the Rulereads as follows:"In the Government Order first read above, amendments to theSpecial Rules for the Tamil Nadu Medical Service were issuedamending the method of appointment, qualification,experience, etc., for the posts of Senior Drugs Inspectorand Drugs Inspector. In the said amendment for the post ofDrugs Inspector, experience for a period of not less thaneighteen months in the manufacture/testing of the substancesamong other things has been prescribed for appointment asDrugs Inspector. The Director of Drugs Control has nowstated that since the issue of amendment, no appointment ofDrugs Inspector through direct recruitment has been made andhence no necessity arose for the revision of the amendment.Now, there is dire necessity to fill up the vacant posts ofDrugs Inspector. Hence, there is absolutely necessary todelete the experience qualification and to specifyeducational qualification alone to cater to the needs ofDepartment." (Emphasis added)11. However, Mr.C.V.Janarthanan, learned counsel for thepetitioner submitted that the State Government cannot transgressRule 49 of the Drugs and Cosmetics Rules, 1945. If at all, the Rulecan be amended only by the Central Government, which alone isauthorised to amend any of the Drugs and Cosmetics Rules, 1945. Healso further submitted that an Inspector appointed under the Actmust have all the qualifications prescribed under Rule 49. https://hcservices.ecourts.gov.in/hcservices/

12. In this context, the learned counsel referred to Section 3(i) of the Drugs and Cosmetics Act, 1940 wherein it is stated thatthe term "prescribed" means prescribed by Rules made under this Act.Thereafter, the learned counsel pointed out to Section 21 of the Act,by which Inspectors under the Act were appointed. The said sectionreads as follows:"21. Inspectors:- (1) the Central Government or a StateGovernment may, by notification in the Official Gazette,appoint such persons as it thinks fit, having theprescribed qualifications, to be Inspectors for such areasas may be assigned to them by the Central Government or theState Government, as the case may be.(2) The powers which may be exercised by an Inspectorand the duties which may be performed by him, the drugs orclasses of drugs or cosmetics or classes of cosmetics inrelation to which and the conditions, limitations orrestrictions subject to which, such powers and duties maybe exercised or performed shall be such as may beprescribed.(3) No person who has any financial interest in theimport, manufacture or sale of drugs or cosmetics shall beappointed to be an Inspector under this section.(4) Every Inspector shall be deemed to be a publicservant within the meaning of Section 21 of the IndianPenal Code (45 of 1860), and shall be officiallysubordinate to such authority having the prescribedqualifications as the Government appointing him may specifyin this behalf. (Emphasis added)13. It was contended that a conjoint reading of Sections 3(i),21 and 33 of the Act will make it clear that any qualificationsprescribed for an Inspector must necessarily confirm to Rule 49framed by the Central Government. Inasmuch as the currentprescription of qualification is contrary to the proviso to Rule 49,the amendment made by the State Government by virtue of exercise ofpower under Article 309 of the Constitution of India is ultra vires.He also stated that since the main Act comes under List II ofSchedule VII, the State Government cannot go back on its earlierRule. This Court is unable to agree with the said submission made bythe petitioner.14. While Section 21 of the Act mentions about Inspectors underthe Act, it takes into account the multifarious roles of anInspector. A reading of Section 21(2) of the Act makes it clear that https://hcservices.ecourts.gov.in/hcservices/ the power which may be exercised by an Inspector and the duties whichmay be performed by him, the drugs or classes of drugs or cosmeticsor classes of cosmetics in relation to which and the conditions,limitations or restrictions subject to which, such powers and dutiesmay be exercised or performed shall be such as may be prescribed.Therefore, when the Central Government framed Rule 49, it took intoaccount the different nature of works to be performed by anInspector. While the main part of Rule 49 prescribes the educationalqualifications for the post of Inspectors, the proviso, which wasintroduced by GSR 658(E) dated 19.10.1993 has made an additionalprescription of minimum experience for an Inspector in case he isauthorised to inspect the manufacture of the substances mentioned inSchedule C. In fact, the second proviso to Rule 49 will make thisposition very clear because the said G.O has been made prospectively,namely to come into force from 19.10.1993. Therefore, such of thoseInspectors who were appointed before 19.10.1993, even if they do nothave the experience prescribed as per the first proviso were not madeineligible to inspect Schedule 'C" manufactory. But, after the dateof amendment, i.e., 19.10.1993, it is not only the educationalqualification but also the experience provided under the firstproviso is necessary for inspecting the units manufacturingsubstances mentioned in Schedule C. But the learned counsel for thepetitioner wanted to contend that there can be only one class ofInspector. Hence, all Inspectors appointed under the Act read withRules must have not only the educational qualification but also theexperience prescribed under the proviso to the Rule.15. In support of his contention, the learned counsel citedseveral judgments of the Supreme Court to re-enforce the contentionsraised by him. The first decision related to INDER PARKASH GUPTA VS.STATE OF JAMMU & KASHMIR AND OTHERS reported in (2004) 6 SCC 786.In that case, it was held that the Rule framed under Section 124 ofthe Jammu & Kashmir Constitution, which corresponds to Article 309 ofthe Constitution, is held to be statutory in nature and they must bescrupulously followed by the Public Service Commission while makingselection to posts. Even if any procedural rules are made by thePublic Service Commission must conform to the impugned statute. Inthe present case, the Tamil Nadu Public Service Commission had notdeviated from the Rules framed under Article 309 of the Constitutionof India.16. The second decision relied upon by the learned counsel isrelating to National Fertilizers Ltd., and others vs. Somvir Singhreported in (2006) 5 SCC 493. In the said matter, it was held thatNational Fertilizers Limited was a 'State' within the meaning ofArticle 12 of the Constitution. Therefore, being an instrumentalityof the State, they are bound to comply with the constitutional https://hcservices.ecourts.gov.in/hcservices/ requirements contemplated under Articles 14 and 16 of theConstitution of India. When an employer makes recruitment Rules, hewas also bound to apply those standards and in case any appointmentis made contrary to the Rules, they are invalid.17. The third decision relied upon by the learned counsel forthe petitioner is MALIK MAZHAR SULTAN AND ANOTHER VS.U.P.PUBLICSERVICE COMMISSION AND OTHERS reported in (2006) 9 SCC 507. In thatcase, the Supreme Court dealt with the age prescribed in anadvertisement made for a particular post. It was held that theadvertisement cannot override the provisions of the statutory Rules.Therefore, if any error found in the eligibility requirement in theadvertisement if it is found to be inconsistent with the Rules, itwould not create any right in favour of the candidates. As alreadypointed out, the present Rule made by the State Government is underArticle 309 of the Constitution of India, prescribing a particularqualification for the post of Drug Inspector. It is not necessarythat the entire Rule 49 should be incorporated in case of all postsof Drug Inspectors, as this Court had already held that the provisowill apply only to Inspectors inspecting particular class of drugmanufacturers and not to the all drugs or cosmetics manufacturersintended to be covered by the Central Government.18. The learned counsel also referred to the judgment of theSupreme Court in Punjab Water Supply and Sewerage Board vs. RanjodhSingh and others reported in (2007) 2 SCC 491. In that case, theSupreme Court held that the order issued by the Central Government byits executive power under Article 162 cannot override the statutoryRules prescribed under Article 309 of the Constitution of India. Inthe said case, it was held that no instructions or policy decisioncan prevail over the statutory rules. As already held, in thepresent case the relevant statutory rule is the amendments made bythe State Government to the relevant service rule under Article 309of the Constitution. The advertisement now impugned is not inconflict with the Rules in question.19. The learned counsel also referred to the judgment inRajasthan Public Service Commission vs. Kaila Kumar Paliwal andanother reported in (2007) 10 SCC 260. It is only for theproposition that a Selection Committee in the absence of anyexecutive power cannot relax the essential qualification. On thecontrary, the Tamil Nadu Public Service Commission had only conformedto the statutory rules and has not in violation or relaxation ofrelevant Rule.20. The learned counsel also referred to the judgment of theSupreme Court in Nagendra Chandra and others vs. State of Jharkhand https://hcservices.ecourts.gov.in/hcservices/ and others reported in (2008) 1 SCC 798. In that case, the questionwhich arose for consideration was that if the relevant Rulesprescribed for advertising a vacancy in the newspaper and alsonotified to the employment exchanges and if any deviation is made,then such appointments will be an infraction of the Rules andviolative of the Articles 14 and 16 of the Constitution of India. Itis not clear as to how the said decision has any relevance to thecase on hand.21. The next judgment referred to by the learned counsel isPramod Kumar vs. U.P.Secondary Education Services Commission andothers reported in (2008) 7 SCC 153. In that case, the Supreme Courtheld that while an illegality cannot be condoned but an irregularitycan be cured. If there is any illegality in the matter ofappointments, it will result in nullity and such appointment will bevoid ab initio.22. The learned case thereafter placed reliance upon the twodecisions of the Supreme Court. The first one related toK.A.NAGAMANI VS.INDIAN AIRLINES AND OTHERS reported in (2009) 5 SCC515. In Nagamani's case, in the context of Indian AirlinesCorporation (Employees other than Flying Crew and AircraftEngineering Department) Service Rules, the executive instructionsare pressed into the service in respect of promotion. The SupremeCourt held that an agreement or settlement is complimentary to eachother and they will have to be read together. Even if the Airlineswanted to rely upon the settlement, it should not run counter to anystatutory instrument. But, in that case, it was found that therecruitment and promotion Rules were not statutory in nature but inthe nature of guidelines. Therefore, the Supreme Court also notedthat if the Rules are not issued under any statutory provisions andalso not notified in the Gazette, they cannot held to be statutoryRules. In the present case, the earlier Special Rules under Article309 was amended by an appropriate procedure contemplated by issuingnotification in the Tamil Nadu Government Gazette. Therefore, itcannot be said to be either non-statutory rule or executive amendmentto the Rule framed under Article 309 of the Constitution was appliedwhile notifying the vacancies by the Tamil Nadu Public ServiceCommission.23. Finally, the learned counsel placed reliance upon the latestjudgment of the Supreme Court in V.V.S.RAMA SHARMA AND OTHERS Vs.STATE OF UTTAR PRADESH AND OTHERS REPORTED IN (2009) 7 SCC 234.Though the said case arose under the Stamp Act, the learned counselwanted to rely upon the passage found in paragraph 21 of the saidjudgment, wherein it is stated that the Rule making power of theState Government is only to the extent as provided under the Centrallaw, namely, the Stamp Act. Therefore, the Court held that in aparticular central law, if the power is delegated to the State, it https://hcservices.ecourts.gov.in/hcservices/ only acts as a delegate and it cannot go beyond the provisions of theAct nor override the provisions of the main enactment. 24. In any event, this Court had already held that the presentadvertisement is only for the post of Drug Inspector and nowhere itis stated that such a Drug Inspector will also be sent to inspect themanufacture of the substances mentioned in Schedule ‘C’. That stageis yet to arrive in the present case. It must also be noted that theCentral Act, 1940, viz., Drugs and Cosmetics Act, 1940 deals withmany classes of drugs and also by a subsequent amendment evencosmetics have been brought into the provisions of the Act.Therefore, an Inspector under the Act has multifarious roles.Therefore, at this stage, this Court cannot presume that the DrugInspectors appointed by the State Government will also perform theduties, which will be in conflict with proviso to Rule 49. Unless itis shown that a Drug Inspector will be sent to inspect amanufacturer, manufacturing ‘Schedule ‘C’ drugs, this Court cannotpresume that any appointment of a Drug Inspector will lead toconclusion that they will perform all roles including inspection of‘C’ Schedule manufacturers. 25. When the petitioner, who is having no locus standi toquestion the impugned notification has come forward to challenge evena prior recruitment process on the ground that the advertisement runscounter to the statutory rule, this Court cannot go into the issue asto the few functions of such Drug Inspectors, who are to be appointedpursuant to the notification.26. The other contention raised by the learned counsel thatthe State Government cannot amend its own service rules in terms ofArticle 309 of the Constitution and it has to be made only by theCentral Government by an appropriate statutory amendment to theRules, cannot be countenanced by this Court. An Inspector functioningunder the Act also belongs to a State service. Therefore, it is opento the State Government to prescribe Rules under Article 309 of theConstitution and it cannot be compelled to go before the CentralGovernment for making amendment even for appointment of DrugInspectors. First of all in the present case, in respect ofeducational qualification, there is no violation of the statutoryrule prescribed under the Drugs and Cosmetics Rules, 1945. What ispressed into service is the first proviso to Rule 49. As alreadystated, it is only with reference to empowering an Inspector toinspect Schedule ‘C’ manufacturers. Therefore, this court is unableto countenance the contentions raised by the petitioner. https://hcservices.ecourts.gov.in/hcservices/

27. In the result, the Writ Petition stands dismissed. No costs.The connected Miscellaneous Petitions stand closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarajrTo1.The SecretaryDepartment of Health & Family WelfareFort St.George, Chennai 600 0092.The Director of Medical Services &Family Planning,Chennai 600 0183.The Director of Drugs ControlChennai 600 0064.The SecretaryTamil Nadu Public Service Commission Omandurar Government EstateAnna SalaiChennai 600 002+ One cc to Mr.R.Nagasundaram, Advocate, SR 59656+ One cc to Government Pleader, SR 59689W.P.No.11973 of 2009PUR (CO)RH (17.11.09)