- 1 - WP No.10575 of 2021 C/W WP No.17163 of 2021 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE31T DAY OF MARCH, 2023 PRESENT THE HON'BLE MR JUSTICE G.NARENDAR AND THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR WRIT PETITION No.10575 OF2021(S-KSAT) C/W WRIT PETITION No.17163 OF2021(S-KSAT) IN W.P.NO.10575/2021 IN APPLICATION NO:
5773. 5786/2020 BETWEEN:
1. HARSHA N AGED ABOUT35YEARS S/O NARASIMHA MURTHY Y K R/O DOOR NO.496 6TH CROSS, VIDYAMANYANAGARA, ANDHRAHALLI, BANGALORE - 560 091 2. SURESH N AGED ABOUT33YEARS S/O SATHYANARAYANA N R/O NEAR DURGAGUDIKASBE CAMP KALLUR POST, RAICHUR - 584 118 3. MAHESH PATIL AGED ABOUT35YEARS S/O SB PATIL R/O L-96, 5TH CROSS, BASVESHVARANAGARA3D STAGE, KIRLOSKAR COLONY BANGALORE – 560079.-. 2 - WP No.10575 of 2021 C/W WP No.17163 of 2021 4. PRASANNA KUMAR R AGED ABOUT31YEARS S/O RANGAIAH T, R/O SLR NILAYA VIJAYANAGAR EXTENSION HULIYANE POST, C N HALLI (TQ) TUMKURU DISTRICT - 572 218 5. KRISHNAMURTHY V AGED ABOUT34YEARS S/O V IYYAPPA R/O SRI MARKHANDEYA KRUPA BEHIND MUNICIPAL PARK GANDHINAGAR CHALLAKERE - 577 522 CHITRADURGA.
6. PRASHANTH PATIL AGED ABOUT30YEARS S/O KRISHNA GOWDA PATIL R/O KRISHNA MEDICALS LOKAPUR, MUDHOL TALUKA BAGALKOT DISTRICT.-. 587 122.
7. REVANASIDDAPPA AGED ABOUT47YEARS S/O ANNEPPA R/O HUDGI TALUKA HUMNABAD BIDAR DISTRICT - 585 329 IN APPLICATION NO:
6495. 2020 8. SRI SHIRSHAILAPPA MALGI AGED ABOUT31YEARS S/O CHANDRASHEKARAPPA MALAGI, R/A NO.151/B, AGOLI POST, GANGAVATHI TALUK, KOPPAL - 583 235.-. 3 - WP No.10575 of 2021 C/W WP No.17163 of 2021 IN APPLICATION NO:
6922. TO69282020 9. SRI DUSHYANTH H S AGED ABOUT35YEARS R/AT463A, ASHRAYA, BEHIND DENTAL COLLEGE, M S ROAD, VIDYANAGARA HASSAN, HASSAN - 573 201.
10. SRI NAVEEN KUMAR B AGED ABOUT35YEARS R/A M BASAVANAPURA MALAVALLI TALUK, MANDYA DISTRICT-571430.
11. SRI VIJAYAKUMAR AGED ABOUT34YEARS S/O VISHWANATH SHETTY Y, R/A NO.547, BANADAKERI, 26TH WARD, NEAR RAMALINGA TEMPLE, HOSPET, BELLARI - 583 201.
12. SRI SIDDRAMAPPA PATIL AGED ABOUT33YEARS S/O CHANNANNA GOWDA R/A HOUSING NO.1-11-55, RDOC BANK BUILDING, ATM CIRCLE, NIJALINGAPPA COLONY, RAICHUR – 584101.
13. SRI BADARINATH BEVINAKATTI AGED ABOUT33YEARS R/A NO.80 NAVALI PLOTS, PRIYADARSHINI PLOTS GOKUL ROAD, HUBBALLI, DHARWAD - 580 030.
14. SRI SANJEEVAKUMAR DATTATREYA BIJAPUR AGED ABOUT32YEARS S/O DATTATREY S. BIJAPUR R/AT SUREBAN, BELGAUM KARNATAKA - 580 030.-. 4 - WP No.10575 of 2021 C/W WP No.17163 of 2021 IN APPLICATION NO:
6990. 2020 15. SRI M D MAHEBOOB PATHAN AGED ABOUT32YEARS, S/O MOHAMMED USMAN PATHAN R/A BIJAPUR ROAD, HOUSING BOARD COLONY, BASAVESHWAR NAGAR, JEWARGI (TQ), KALABURGI DISTRICT - 585 310 IN APPLICATION NO:
856. 2021 16. SRI SUNIL KUMAR K AGED ABOUT38YEARS S/O KOTRESH K R/AT NO.08, 1ST MAIN, 16TH CROSS, MALAGAL MAIN ROAD NAGARABHAVI2D STAGE, BANGALORE URBAN BANGALORE - 560 091. IN APPLICATION NO:
6516. 2021 17. SRI SHANKARAPPA JANIWARAD S/O SRI YASHVANTHAPPA JANIWARD AGED ABOUT40YEARS RESIDING AT NEAR CANARA BANK SHIGLI POST, SHIRAHATTI TALUK, GADAG DISTRICT - 582 210 …PETITIONERS (BY SRI. ADITYA SONDHI, SR. COUNSEL FOR SRI. SHAHNAWAZ M.MAHADAPUR, ADV.) - 5 - WP No.10575 of 2021 C/W WP No.17163 of 2021 AND:
1. THE KARNATAKA PUBLIC SERVICE COMMISSION UDYOGA SOUDHA DEVARAJ URS ROAD NEAR VIDHANA SOUDHA BENGALURU - 560 001 REPTD. BY ITS SECRETARY.
2. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT DEPARTMENT OF HEALTH AND FAMILY WELFARE VIKAS SOUDHA, DR. AMBEDKAR VEEDHI, BENGALURU - 560 001.
3. THE CONTROLLER FOR THE STATE OF KARNATAKA, DEPARTMENT OF DRUGS CONTROL, PALACE ROAD, BENGALURU - 560 001.
4. KIRAN KUMAR M AGED ABOUT37YEARS S/O MANJANNA P C/O RAVIKUMR MEDICAL STORES, RAMOHALLI, KENGERI HOBLI, BANGALORE-560074 5. SHASHIDHAR RANJANAGI AGED ABOUT31YEARS S/O I.S.RANJANAGI GOULI GALLI, GAJENDRAGAD GADAG-582114 6. SANJAYA KUMAR D.S AGED ABOUT36YEARS S/O SHYAMASUNDAR D N DASALAKUNTE, KORATAGERE TALUK TUMKUR DISTRICT-572138 - 6 - WP No.10575 of 2021 C/W WP No.17163 of 2021 7. NISSARA AHAMMED AGED ABOUT40YEARS S/O FAIROZ SAB #7, BURHANI HOUSE CPV BLOCK, A CROSS, GANGA NAGAR RT NAGAR, BANGALORE-560032.
8. OMPRAKASH N.P AGED ABOUT34YEARS S/O N.P VAMADEVA NO.36, OLD NO.272, LAKSHMAMMA NILAYA2D FLOOR, TRIPLICANE MAIN ROAD, MILK COLONY, MALLESHWARAM WEST BENGALURU NORTH-560055.
9. BASAVARAJA CHANDRASHEKARA DODDAMANI AGED ABOUT39YEARS S/O CHANDRASHEKARA DODDAMANI PLOT NO.193, KIADB; 2ND STAGE RAYAPUR, DHARWAD-580009 10. PRAMOD PATIL AGED ABOUT35YEARS S/O SHIVAJI PATIL, BEDKIHALI POST CHIKKODI POST, BELAGAVI-591214 11. GANESH NAZARE AGED ABOUT33YEARS S/O SANJAY NAZARE H NO.31523 BUDHAWAR BAZAR PETH BORGOAN POST, CHIKODI TALUK, BELAGAVI-591216.
12. SRINIVAS MURTHY H AGED ABOUT34YEARS S/O HANUMANTHAPPA H, GANGA NILAYA, CHENNANAYAKANAPALYA - 7 - WP No.10575 of 2021 C/W WP No.17163 of 2021 NAGASANDRA POST, TUMKUR ROAD, BENGALURU-560073.
13. KIRANKUMAR NAVDAE AGED ABOUT31YEARS S/O KRISHNAMURTHY NAVADE SRI RENUKA NILAYA, 6TH WARD BANJAR COLONY SRIRAMNAGAR, GANGAVATHI TALUK, KOPPAL-583282.
14. NEETA V GYANAPPANAVAR AGED ABOUT30YEARS D/O VENKATESH GYANAPPANAVAR KURUBRA ONI, ALWANDI AT POST ALWANDI KOPPAL-583226.
15. UMASHANKAR.C. AGED ABOUT39YEARS S/O CHIKKANNA NO.134, L.I.G, 9TH CROSS2D STAGE KENGERI SATELLITE TOWN BANGALORE – 560060.
16. SHIVAKUMAR AGED ABOUT33YEARS S/O NINGANNA KALYANI POST SIRNOOR, KALABURGI-585308 17. RAKESH AGED ABOUT37YEARS S/O VAIJINATH MODI H.No.11-1-81, MANGALPETH BIDAR-585401.
18. PRAKASH L AGED ABOUT37YEARS S/O LINGAPPA R NO.49, RUDRESHWARA NILAYA - 8 - WP No.10575 of 2021 C/W WP No.17163 of 2021 NAGAVARARAPALYA C V RAMAN NAGAR BANGALORE-560093.
19. RAMYA V AGED ABOUT31YEARS W/O MANOJ B1763, 1ST MAIN ROAD, JAKKASANDRA, BANGALORE-560034 20. NAGARAJA G AGED ABOUT42YEARS S/O GIRIYAPPA H.NO.Db-72, 1st floor P.W.D QUARTERS KHB MAIN ROAD KAVAL BYRASANDRA R.T.NAGAR, BENGALURU-560032.
21. VRASHABHA MAGADUM AGED ABOUT38YEARS S/O AJIT SAGAR NIWAS, MGADUM FARM HOUSE SHEDBAL UGAR BUDRUK POST ATHANI TALUK BELAGAVI-591316 22. VINODKUMAR CHAVAN AGED ABOUT33YEARS S/O LAXMAN #839, VISHNAVI NILAY1T FLOOR, 7TH MAIN, 3RD CROSS, JP NAGAR2D PHASE BANGALORE-560078 23. DIMPLE PIRGAL, AGED ABOUT38YEARS D/O SAMPAT RAJ #5 P.V.N LANE, 2ND CROSS, THIGALARPET, BENGALURU-560002.-. 9 - WP No.10575 of 2021 C/W WP No.17163 of 2021 24. KRISHNA PATIL AGED ABOUT31YEARS S/O MARUTIGOUDA PATIL H.N.944, UMARANI POST, CHIKODI TALUK, BELAGAVI-591222.
25. RADHIKA KANDOORI AGED ABOUT42YEARS D/O K BALAKRISHNA SRI SAPTHGIRI MEDICALS #44, 5TH MAIN, 8TH CROSS, SAMPANGIRAMANAGAR BANGALORE-560027.
26. SARALA T.S AGED ABOUT29YEARS D/O SRINIVAS THADRURU SHIDLAGHATTA TALUK CHIKKABALLAPUR-562102.
27. SHWETA G HOSUR AGED ABOUT29YEARS D/O G.B.HOSUR SONNA POST, BILGI TALUK BAGALKOT-587116.
28. KUSHAL Y HUKKERI AGED ABOUT31YEARS S/O Y.P.HUKKERI H.NO.185, PRASHANT NAGAR, BEHIND RNS FACTORY OLDHUBLI, HUBLI-580024.
29. POORNIMA C AGED ABOUT39YEARS D/O M.CHIKKAPPAIAH #8, F1 SRIPADANILAYA20H MAIN, JC NAGAR, KURUBARAHALLI MAHALAXMIPURAM BENGALURU-560086.-. 10 - WP No.10575 of 2021 C/W WP No.17163 of 2021 30. CHETAN SEETHARAM HAREKAL AGED ABOUT37YEARS S/O SEETHARAM N HAREKALA DOOR No.1-161/1-E ADARSH NAGAR, BAJAL POST, MANGALORE-575007.
31. S VENKATESHA AGED ABOUT38YEARS S/O N.SHIVANNA PLOT NO.193 KIADB INDUSTRIAL AREA2D STAGE, RAYAPURA HUBLI-580009.
32. TEJAWINI C AGED ABOUT36YEARS D/O CHIKKANARASAPPA S.D.NO.52, FIRST FLOOR, DEVASANDRA MAIN ROAD K.R.PURAM, BENGALURU-560036.
33. RAGHU R AGED ABOUT36YEARS, S/O RAMAPPA H T #139/1, G.C.R. EXTENSION VIDYA NAGAR HOSADURGA CHITRADURGA-577527.
34. RAVIKUMAR MUDHOL AGED ABOUT28YEARS, S/O BASAVARAJ MUDHOL @2130, SUDI CROSS JAGGALAR ONI RON, RON POST, GADAG-582209.
35. NIRAMALA V AGED ABOUT40YEARS D/O VENKATARAMANAPPA NO.112, 1ST MAIN ROAD RAMAKRISHNA BLOCK - 11 - WP No.10575 of 2021 C/W WP No.17163 of 2021 THYAGARAJA NAGAR BANGALORE-560028.
36. CHANNABASAVARAJA AGED ABOUT39YEARS S/O AMARAPPA BASAPUR POST, KAVITHAL MANVI TALUK, RAICHUR-584120.
37. PATTARI LOTHITHA AGED ABOUT39YEARS S/O P.AJJAPPA HALUVAGALU HARAPANAHALLI TALUK BALLARI-583213.
38. MANJUTHEJ T.R. AGED ABOUT35YEARS S/O RAMACHANDRA T. #91/181, THIGALA CHOUDADENAHALLI DOMMASANDRA POST ANEKAL TALUK BANGALORE-562125.
39. PREMA M.K AGED ABOUT39YEARS D/O KRISHNA M.K. #18, 1ST CROSS, 1ST MAIN C.KC. GARDEN SUBBAIAH CIRCLE, BENGALURU-560027 40. VEERESH AGED ABOUT36YEARS S/O BHIMANNA H.NO.8-11-180/261 VIDYA NAGAR RAICHUR-584103.
41. KRISHNA JADHAV AGED ABOUT36YEARS S/O LATE UMALAPPA JADHAV RAGHAVENDRA COLONY, - 12 - WP No.10575 of 2021 C/W WP No.17163 of 2021 II STAGE, II CROSS BALLARI-583101.
42. IMRAN AGED ABOUT29YEARS S/O MAQBUL PASHA, 4/106 GUMPA ROAD, NEW KEB COLONY BIDAR-585403.
43. ABILASH AGED ABOUT34YEARS S/O SAHRANAPPA MURTHY PLOT NO.45, PRAGATI COLONY, SEDAM ROAD, KALABURGI-585105.
44. G NARESH AGED ABOUT33YEARS S/O G.N.RANGAPPA NO.151, CBLOCK, ROYAL ENFIELD SERVICE CENTRE ROAD RAGHAVENDRA COLONY2D STAGE, BALLARI-583101.
45. VITTHAL SANGANAL AGED ABOUT40YEARS S/O NINGAPPA NO.193, KIADB INDUSTRIAL AREA, 2ND STAGE RAYAPUR HUBLI DHARWAD-580009.
46. J.M. MANJULA AGED ABOUT45YEARS W/O. M.SURYAPRAKASH H.NO.81, SREENAGAR MAIN TALUR ROAD BALLARI-583103.
47. PRAGATHI N.A AGED ABOUT29YEARS - 13 - WP No.10575 of 2021 C/W WP No.17163 of 2021 D/O APPAJIGOWDA NELAMAKANA HALLI MALAVALLI, MANDYA-571430.
48. MADHUSUDAN AGED ABOUT37YEARS S/O H.SHESHAGIRI DENA BANK COLONY KUMARESHAWAR NAGAR DHARWAD-580008 49. BHAVYA KUMARI L.G AGED ABOUT36YEARS D/O K.LOKESH RAGHAVENDRA COLONY2D STAGE, 3RD CROSS VENKATESHAWARA NAGAR BALLARI-583101.
50. G.MARUTHI AGED ABOUT35YEARS S/O H.GOVINDAIAH #13, 1ST ‘A’ CROSS, BYRAPPA LAYOUT NAGASHETTY HALLI RMV2D STAGE SANJAYANAGAR POST BANGALORE-560094.
51. MAMATHA M AGED ABOUT38YEARS D/O MARIGOWDA M NO.15/20, 25TH MAIN RAGHAVENDRA BLOCK, SRINAGAR BENGALURU-560050.
52. DAWOOD ULLA BAIG AGED ABOUT35YEARS, S/O NOOR ULLA BAIG NO.314, POST OFFICE ROAD SOLUR MAGADI TALUK, RAMANAGARA-562127.-. 14 - WP No.10575 of 2021 C/W WP No.17163 of 2021 53. SAROJADDIN AGED ABOUT34YEARS S/O YAKUB SAB RAGHAVENDRA COLONY, 2ND STAGE, BALLARI-583101.
54. PATIL SHIVARAMAN AGED ABOUT34YEARS S/O Y.S.PATIL PLOT NO.193, KIADB, 2ND STAGE, RAYAPUR, DHARWAD-580009.
55. MANJUNATHA AGED ABOUT37YEARS, S/O. KALAKAPPA GANJI I.B.GARDEN SIRWAR, RAICHUR-584129.
56. BASAVARAJ PUJAR AGED ABOUT44YEARS S/O BULLAPPA TAVARAGONDI POST, HARAPANAHALLI TALUK, DAVANAGERE-583213.
57. MANJUNATH AGED ABOUT30YEARS S/O PRABHURAO H NO511-377 JYOTI COLONY. K.E.B ROAD BIDAR-585401.
58. GOUSE BASHA B AGED ABOUT37YEARS S/O MAHABOOB BASHA B24H WARD, MASJID STREET MEHABOOB NAGAR JAMBUNATH ROAD, HOSPET, BALLARI-583201.-. 15 - WP No.10575 of 2021 C/W WP No.17163 of 2021 59. NANU RATHOD AGED ABOUT48YEARS S/O ROOPSING RATHOD PLOT NO.13, WARD NO.16 BESIDE TARANATH AYURVEDIC HOSPITAL, ANANTAPUR ROAD, BALLARI-583101. …RESPONDENTS (BY SRI. REUBEN JACOB, SR. COUNSEL FOR SRI. PAWAN KUMAR M.N, ADV. FOR R-1, SRI. DHYAN CHINNAPPA, ADDL. ADVOCATE GENERAL A/W SMT. SHILPA S.GOGI, HCGP FOR R-2, SRI. UDAYA HOLLA, SR. COUNSEL FOR SRI. M.S.RAJENDRA, ADV. FOR R-4 TO58 SMT. ARUNA P.CHAVAN, ADV. FOR R-59, R-3 IS SERVED AND UNREPREENTED.) (VIDE COURT
ORDERDATED.01.12.2021, CAUSE TITLE AMENDED.) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI AND SET ASIDE THE IMPUGNED
ORDERPASSED BY THE HON’BLE KARNATAKA ADMINISTRATIVE TRIBUNAL, PRINICIPAL BENCH AT BENGALURU IN APPLICATION NOS. 5773-5786/2020, 6990/2020, 692-6928/2020, 6516/2020, 856/2021, 6495/2020 DATED1205/2021 (ANNEXURE-J) AND CONSEQUENTLY ALLOW THE SAID APPLICATION NOS. 5773-5786/2020, 6990/2020, 6922-6928/2020, 6516/2020, 856/2021, 6495/2020 AS PRAYED FOR RESPECTIVELY BY THE PETITIONERS HEREIN BEFORE THE HON’BLE TRIBUNAL.-. 16 - WP No.10575 of 2021 C/W WP No.17163 of 2021 IN W.P.NO.17163/2021 BETWEEN: MAHESH N S S/O SATYANARAYAN N S AGED ABOUT35YEARS, R/AT No.4298, 1ST MAIN, SUBRAMANYA NAGAR, BENGALURU - 560 096. …PETITIONER (BY SRI. SANDESH J.CHOUTA, SR. COUNSEL FOR SRIYUTHS. RAGHU H AND SHAKEER ABBAS M, ADVOCATES.) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY THE PRINCIPAL SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, VIDHANA SOUDHA DR. AMBEDKAR VEEDHI, BENGALURU - 560 001.
2. KARNATAKA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, UDHYOGA SOUDHA, PALACE ROAD, BENGALURU - 560 001. …RESPONDENTS (BY SRI. DHYAN CHINNAPPA, ADDL. ADVOCATE GENERAL A/W SMT. SHILPA S.GOGI, HCGP FOR R-1, SRI. REUBEN JACOB, SR. COUNSEL FOR SRI. PAWAN KUMAR M.N, ADV. FOR R-2.) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI AND QUASH THE
ORDERDATED2408.2021 IN APPLICATION No.6560/2019 PASSED BY THE HON’BLE KARNATAKA ADMINISTRATIVE TRIBUNAL AT BENGALURU, PRODUCED HERETO AS ANNEXURE – B ETC. THESE PETITIONS, COMING ON FOR FURTHER HEARING, THIS DAY, G.NARENDAR J., MADE THE FOLLOWING: - 17 - WP No.10575 of 2021 C/W WP No.17163 of 2021
ORDERHeard the learned Senior counsel Sri Aditya Sondhi for the petitioners in W.P.No.10575/2021 and the learned Senior counsel Sri Sandesh Chouta for the petitioners in W.P. No.17163/2021 and the learned Senior counsel Sri Reuben Jacob for respondent No.1, learned AAG Sri Dhyan Chinnappa along with Smt. Shilpa S Gogi, learned HCGP for respondent No.2 and Sri Udaya Holla, learned senior counsel for respondent Nos.4 to 58 and Smt. Aruna P Chavan, learned counsel for respondent No.59.
2. As both writ petitions are canvassed on common grounds of fact and law, both petitions are taken up for consideration by this common order.
3. The petitioners are before this Court being aggrieved by the order passed by the KSAT, Bengaluru whereby the Hon’ble Tribunal was pleased to reject the applications preferred by the petitioners (who were the applicants) by its order dated 12.05.2021.-. 18 - WP No.10575 of 2021 C/W WP No.17163 of 2021 4. The bare facts necessary to dispose off the litigation, are that the first respondent issued a notification bearing No.PS C1RTB/2/2017 dated 23.03.2018, thereby inviting applications from eligible candidates for the post of Drug Inspector in the third respondent department. The notification came to be issued under the KPSC Rules, 2006, 2013, 2015. A copy of which is produced as Annexure A1. Under the said notification the eligibility criteria for the prospective candidates was fixed as follows: (a) must be holder of B.Pharma degree in Pharmacy; (b) must have put in a service of not less than eighteen months of experience in the manufacturing and or testing of Schedule C and/or C1 drugs included in the Drugs and Cosmetics Rules, 1945. And it is the second criteria which has turned contentious.
5. That the process of selection of candidates commenced and resulted in completion with publication of - 19 - WP No.10575 of 2021 C/W WP No.17163 of 2021 a list of candidates who were to be interviewed and the said list was published on 07.11.2019 (Annexure A3). While so, a week thereafter an entirely new list came to be published on the website of the first respondent commission i.e., on 12.11.2020, whereby the original list of eligible candidates published on 07.11.2019 came to be substituted and the same was done by altering the selection procedure and is alleged to have been carried out in a prejudicial manner.
6. It is the case of the petitioners that the process of receiving applications started on 26.03.2018 with the last date for submission being 24.04.2018. That subsequently an addendum came to be issued on 24.04.2018 and last date was extended to 24.05.2018 and the examination dates were scheduled on 13.12.2018 and 16.12.2018 and all the petitioners herein had cleared the examination conducted on the dates noted supra.-. 20 - WP No.10575 of 2021 C/W WP No.17163 of 2021 7. That pursuant to the publication of the results of the written examination, a merit list of the candidates came to be published and the candidates therein were notified of being eligible to participate in the interview/viva-voce. That pursuant to the same, a list of candidates eligible for being interviewed was also drawn up and were also called for document verification and the list of candidates so invited for interview and document verification is produced as Annexure-A4. Subsequent to the process of document verification the petitioners were issued letters inviting them for interview on various dates i.e., 21.11.2019, 22.11.2019, 25.11.2019, 26.11.2019 and 27.11.2019. A compilation of the letters inviting them for interview is produced as A5 to A18. That out of the total list of candidates, whose names were put up on 22.11.2019, a fair number of the candidates were interviewed and the remaining of the candidates were issued endorsements reading as under: “your interview has been postponed and you will be informed after documents verification” - 21 - WP No.10575 of 2021 C/W WP No.17163 of 2021 A copy of which is produced as Annexure A19 to A21. Some of the candidates were also intimated by e-mails.
8. That while so, to the shock and surprise of the petitioners, a new list of candidates or the “altered list” came to be published on 12.11.2020. Aggrieved, the petitioners moved the Tribunal. That in the interregnum the respondents had also published a provisional list of candidates but no reasons were assigned for either not calling them for the interview or for excluding them from the provisional list of candidates short listed for interview.
9. That on being notified the respondents appeared before the Tribunal and for the first time before the Tribunal the respondent No.1 informed the Tribunal that an additional step of getting the documents verified by an expert committee was introduced. That the additional step, of verification of certificates by experts, was done with a view to assess the nature of experience - 22 - WP No.10575 of 2021 C/W WP No.17163 of 2021 gained by the candidates and as to whether the experience gained was in line with the condition imposed under the notification; that the additional step also included assessing as to whether the candidates had acquired expertise in manufacturing and testing of Schedule C and C1 drugs and as to whether they had worked in research and development department. The criteria/additional step was not imposed while inviting applications and such criteria was sought to be introduced for the first time and that too, after the provisional list of candidates, short listed for interview, was published on 07.11.2019 and after that some of the candidates were indeed interviewed also. The copy of the Karnataka Health and Family Welfare Services (Drugs Control Department Non-teaching staff) (Recruitment Rules), 2013 based on which the eligibility criteria was fixed, is produced and marked as Annexure G. The Tribunal by a common judgment and order has been pleased to dismiss all the applications.-. 23 - WP No.10575 of 2021 C/W WP No.17163 of 2021 ARGUMENTS BY LEARNED SENIOR COUNSEL SRI ADITYA SONDHI ON BEHALF OF THE PETITIONER IN W.P. NO.10575/2021.
10. The learned Senior counsel would invite the attention of the Court to Volume III of the compilation to contend that the post is a statutory post and that the qualification for persons to be appointed as Inspectors is provided under Rule 49 of the Drugs and Cosmetics Rules,1945 (hereinafter referred to as the “D & C Rules, 1945” for short). In support of his argument that the post is a statutory post, he would invite the attention of the Court to Section 21 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the “D & C Act, 1940” for short) which 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.-. 24 - WP No.10575 of 2021 C/W WP No.17163 of 2021 (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 [,having the prescribed qualifications.,].as the Government appointing him may specify in this behalf.].
11. He would further contend that the eligibility criteria having been stipulated under the Central Legislation, the same is inviolable and that the power of framing rules, more particularly, prescribing qualifications to the various posts including the post of Inspectors, has been arrogated by the Central Government to itself and in - 25 - WP No.10575 of 2021 C/W WP No.17163 of 2021 this regard, he would take the Court through the provisions of Section 33 (2) and more particularly he would impress upon the Court to peruse clause (b) of Sub Section (2) of the D & C Act, 1940.
12. Section 33 of the D & C Act, 1940 commences with the heading “Power of Central Government to make rules” and reads as under: ”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.]. - 26 - WP No.10575 of 2021 C/W WP No.17163 of 2021 (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; [emphasis by this Court]. (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; [(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 the 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 qualifications of - 27 - WP No.10575 of 2021 C/W WP No.17163 of 2021 such authority]. and the fees payable therefore; [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 licences) 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 and truly stated on the liable or 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 - 28 - WP No.10575 of 2021 C/W WP No.17163 of 2021 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 matters which shall or shall not be included in such labels; (k) prescribe the maximum proportion of any poisonous substance which may be added to 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 lable 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 - 29 - WP No.10575 of 2021 C/W WP No.17163 of 2021 drugs or classes of drugs of 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 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 32B.].
13. Elaborating further he would take the Court through the provisions of Section 5 which provides for the constitution of a Drugs Technical Advisory Board and constitution of which board is once again by the Central Government. That the constitution of the Central Advisory Board amongst others includes advising the State, the manners of framing of rules etc. He would contend that - 30 - WP No.10575 of 2021 C/W WP No.17163 of 2021 there is no nexus between the stipulation regarding the experience and the duties attached to the post of the Drugs Inspector.
14. The learned Senior counsel was also queried regarding insistence on experience in the manufacturing of Schedule ‘C’ drugs and he would once again take the Court through Rule 49 and would submit that the rule is in two parts and the first part deals with the pre-appointment qualification and the latter/second part deals with the post-appointment duties that may be performed only by a particular class of Inspectors and that the second part, as evidenced by the proviso, is only an enabling provision and not a qualifying criteria for selection to the post of the Drug Inspectors.
15. To buttress his contention regarding all not being fair, he would place reliance on the understanding of the statute by several other States, namely, the notification dated 20.11.2019 issued by the Government of Assam by its Medical Health Recruitment Board of Assam - 31 - WP No.10575 of 2021 C/W WP No.17163 of 2021 and would point out to Sl.No.5 of the notification which deals with the academic qualification and would submit that there is no requirement of the candidate to possess any experience in testing and manufacturing. He would nextly take the Court through the notification issued by the Government of West Bengal, Department of Health Establishment Branch dated 3rd December. It is a Notification, publishing the C and R Rules by the said Government and he would take the Court through Sl.No.4 which deals with the post of Inspector of Drugs and qualification prescribed is a degree in pharmaceutical chemistry or a post graduate degree etc., and would once again point out that neither has the State insisted on any experience quotient, to be eligible for selection to the post of Inspector of Drugs and would nextly take the Court through the publication issued by the Tamil Nadu Public Service Commission, whereby applications have been invited for appointment to the post of Drug Inspectors. He would take the Court through para 4-B of the Notification, which deals with the educational qualification and yet - 32 - WP No.10575 of 2021 C/W WP No.17163 of 2021 again would impress upon the point, that there is no insistence on experience in testing and manufacturing of schedule C and C1 drugs. He would lastly take the Court through the publication issued by the Andhra Pradesh Public Service Commission, Hyderabad, once again pertaining to the recruitment to the post of Drug Inspector. He yet again takes the Court through paragraph No.2 of the notification which pertains to educational qualification and would point out that what is stipulated as eligibility criteria, is merely a degree and that there was no insistence on possessing experience in testing and manufacturing schedule C and C1 drugs. He would also take this Court through the notification issued by the Chattisgarh Government (Copy of the same is in Hindi language) and would contend that yet again what is stipulated is only the academic qualification and that the stipulation is wholly in consonance with the Central Act and Rules. He would submit that the endeavour to place before the Court the notifications of various Governments inviting for applications for employment in the concerned - 33 - WP No.10575 of 2021 C/W WP No.17163 of 2021 department is only to demonstrate the fact that the understanding of statute is uniform and that the action by the State in trying to tweak the qualifications stipulated under the rules is a misadventure.
16. The learned Senior counsel would then take the Court through the minutes of the meeting dated 16.01.2018 and take the Court through para 2 and would point out that the board has resolved to recommend to remove the clause prescribing experience in Rule 49 of the D & C Rules, 1945 itself, that is the latter part of Rule 49 of the D & C Rules, 1945 as discussed supra. He would submit that the respondents were well aware of their shortcomings in imposing such a condition and it was well within their knowledge that the same amounts to an act of overreach. He would then take the Court through the provisions of Section 22 of the D & C Act, 1940 which deals with the powers of the drug inspectors. Taking the Court through Rule 22 (1)(a) of the D & C Rules, 1945. He would contend that the power of the Central - 34 - WP No.10575 of 2021 C/W WP No.17163 of 2021 Government to regulate is across the board. He would then take the Court through Rules 51 and 52 of the D & C Rules, 1945 to demonstrate the functions to be performed by the drug inspectors and which functions are in consonance with the provisions of Section 22 of the D & C Act, 1940.
17. The learned Senior counsel has placed reliance on the following authorities: Volume I SL.No.DESCRIPTION PARA NOS.
1. Nidhi Pandey vs Union Public Service 2, 3, 15 & Commission and others, Central 17 Administrative Tribunal, principal Bench, decided on 22.03.2018.
2. Union Public Service Commission vs Nidhi 13 & 14 Pandey, High Court of Delhi, Date of Judgement:
18. h February, 2020.
3. State of U.P vs Zunab Ali and Others, 2010 5, 11 to SccOnLine AII231615 4. Kuldeep Singh and Others vs State of U.P1 5,12, and Others, 2014 SCC OnLine AII5119(Full 15, Bench Judgement) 17,18, 24 & 26 5. Ashish Tyagi Vs State of U.P and Others, - Decided on 8th January, 2021.
6. Director General, Central Drugs Control - Organisation vs Nidhi Pandey & Others, SLP Nos. 3473-3456/2021 dated 05-04-2021.
7. Krishnan Kumar vs State of Haryana and - Others, CWP No:
15067. of 2020 (O & M).-. 35 - WP No.10575 of 2021 C/W WP No.17163 of 2021 18. In particular, the learned senior counsel would take the Court through the Full Bench judgment of the Allahabad High Court headed by Hon’ble Dr. D Y Chandrachud (as he then was) Chief Justice and would point out the issue framed for consideration by the full bench,. He would take the Court through the issue framed in para 1 and 2 which reads as under: “(1) Whether the experience required in the proviso to Rule 49 of the Drugs and Cosmetics Rules, 1945 is only a bar of authorization to inspect the manufacture of substances, or is an essential qualification under Rule 49 for direct appointment as Drug Inspector under Rule 5(4) of the U.P. State Drug Control Gazetted Officers' Service Rules, 1995. (2) Whether the Division Bench judgment in State of U.P. v. Zunab Ali has been correctly decided.
2. This reference requires an interpretation of the provisions of the Drugs and Cosmetics Act, 1940 and of Rule 49 of the Drugs and Cosmetics Rules, 1945.
19. Then he would take the Court through paragraphs 5, 12, 15, 16, 17, 18, 20 and 24 and in - 36 - WP No.10575 of 2021 C/W WP No.17163 of 2021 particular would point out the reasoning wherein the Full Bench has held: “Ex facie, clause (iii) of the proviso specifies experience which is gained during the tenure of service as a Drug Inspector and not before appointment. ... Consequently the experience specified in the first proviso to Rule 49 is not a condition of eligibility or a qualification for appointment as an Inspector within the meaning of Rule 49.
20. The learned Senior counsel would close his submissions by contending that the imposition of the condition of experience being contrary to the legislative scheme of the Central Statute, the same is required to be quashed. He would contend that the State has attempted to legislate in field entrenched and occupied by a Central Legislation.
21. Lastly, he would conclude by contending that the tweaking happened only with the intention of accommodating in-service candidates and that 25 of the - 37 - WP No.10575 of 2021 C/W WP No.17163 of 2021 58 candidates in the select list are all candidates who are hailing from the department. That the change of criteria after the process has started is not only per se illegal, but is implemented to achieve a predetermined result.
22. That the State lacks competence to legislate with regard to the qualification etc., as the field is occupied by the Central Legislation and the State is denuded of any power to legislate contra. Elaborating further he would submit that even otherwise the question of shifting the goal posts after the game has begun, that too at the last moment, is impermissible and on that short ground also the additional process that was sought to be introduced at a later stage after the game has begun is vitiated by illegality. In conclusion he would contend that the respondent-State lacks competency to legislate and the present case is one of an attempt to encroach a field fully occupied by Central Legislation.-. 38 - WP No.10575 of 2021 C/W WP No.17163 of 2021 Arguments advanced on behalf of Public Service Commission.
23. Per contra, the learned Senior counsel Reuben Jacob appearing for the Commission would contend that the Commission is a constitutional body and is constituted in terms of Article 315 of the Constitution of India to discharge its constitutional obligations i.e., conducting recruitments in terms of the Recruitment Rules. He would also take the Court through Articles 320 and 321. He would contend that it is the job of the Commission merely to ensure that the candidate meets the eligibility criteria stipulated by the appointing authority. That the alleged tweaking is only for the purpose pruning the list for the interview and nothing more. That the said exercise came about pursuant to the meeting of 11.11.2019 whereby the Central Government experts were decided to be engaged. He would submit that the short-listing was done based on the comments of the Central Government Experts and he would fairly admit that in the subsequent list, 24 of them are in-service candidates.-. 39 - WP No.10575 of 2021 C/W WP No.17163 of 2021 24. Elaborating further, the learned senior counsel would submit that the candidature of the petitioners has been rejected after verifying the genuineness of the documents. That the candidates were informed to upload their certificates along with their online applications. That based on such certificates the Commission permitted them to participate in the written examination. He would submit that there was no verification of the documents prior to the written examination, and that, this procedure is followed in respect of notifications where applications are invited online. He would submit that after the results of the competitive exam were published, a list in the ratio of 1:3 was required to be prepared and that, it is the basis for inviting the candidates to attend the interview. That originally the names of the petitioners were found in the eligibility list. Proceeding further he would submit that after the provisional list of candidates short-listed for interview was published and document verification was commenced they took the assistance of experts to assess - 40 - WP No.10575 of 2021 C/W WP No.17163 of 2021 the experience certificates. In that, the names of 232 short-listed candidates is compiled in Annexure-R1.
25. He would submit that the names of the petitioners were not found in the second list, as on verification of the testimonials it was found by the central experts that they were ineligible and hence a fresh list came to be drawn up and in view of their ineligibility the names of the petitioners were left out of the list. That the 24 in-service candidates, who were originally not part of the selected list came to be included in the revised list and that their inclusion was on account of the opinion rendered by the Experts/Special Committee of the Commission. The learned Senior counsel would attempt to justify the revision of provisional select list, by contending that the earlier list was drawn up without entering upon and assessing the testimonials. That the petitioners were issued call letters without verifying the documents/testimonials and on subsequent verification it was found that the candidates were ineligible and hence - 41 - WP No.10575 of 2021 C/W WP No.17163 of 2021 the candidates though were invited to attend interview have not been selected. He would contend that it is a coincidence that amongst the 80 in-service candidates who had applied to the post only some were found eligible and amongst the short-listed candidates 25 candidates are in- service candidates. He would contend that the numbers cannot be utilized to paint a different picture and show the process of verification in poor light. He would submit that all the candidates whose names have been short-listed have been subjected to scrutiny and opinion of the Assistant Drug Controllers deputed by the Central Government to assess the experience certificates. He would fairly admit that introduction of a separate method of evaluation of the testimonials was on the opinion rendered by the State Government.
26. He would further contend that the applications of nearly 30 in-service candidates have been rejected as they did not possess experience in the testing and manufacturing of schedule C and C1 drugs. He would - 42 - WP No.10575 of 2021 C/W WP No.17163 of 2021 attempt to impress upon the Court to view the same as a measure to filter ineligible candidates.
27. He would contend that the stipulated experience cannot sought to be negatived on the basis of the nature of duties stipulated under the statute. He would submit that stipulating qualification is in the domain of the appointing authority that whether it ought to be research and development or whether it has to be merely testing or whether it has to be manufacturing etc., are questions that remain beyond the mandate vested in the petitioners. That, prescribing criteria, is not within the domain of the petitioners and that the drugs controller in his instructions has placed and forwarded his opinion on the basis of the ruling of the Hon’ble Apex Court and hence the issue is no more res integra. He would contend that not all candidates who have participated in the interview have been selected and that the Commission has adopted a very rigorous procedure to ensure the selection of the best of the challengers from amongst the pool of - 43 - WP No.10575 of 2021 C/W WP No.17163 of 2021 candidates vying for appointment to the post of Drug Inspector.
28. The learned Senior counsel has placed reliance on the following rulings : Volume-I SL.No.DESCRIPTION PARA NO’s 1 (2008) 4 SCC171– Dhananjay Malik vs 7, 9 & 15 State of Uttaranchal. 2 (2010) 12 SCC576– Manish Kumar Shahi 3 & 16 vs State of Bihar 3 (1975) 3 SCC602– State of Bihar vs Dr. 16 Asis Kumar Mukherjee 4 (1989) 1 SCC136– Dr M C Bindal vs R C12& 13 Singh 5 (2008) 9 SCC403– T Jayakumar vs A12TO15Gopu 6 (1994) 4 SCC391– S Satyapal Reddy vs 7 Government of A.P. 7 (2019) 6 SCC362– Maharastra Public 9, 10 & 13 Service Commission vs Sandeep Shriram Warade 8 (1994) 6 SCC293– Madhya Pradesh Public 6 Service Commission vs Navnit Kumar Potdar 9 (2008) 3 SCC512– K Manjusree vs State 33 of Andhra Pradesh Volume-II SL.No.DESCRIPTION PARA NO’s 1 (1985) 1 SCC122– Jatinder Kumar vs 11, 12 State of Punjab 2 1987 (Supp) SCC401– State of U.P. vs 31, 32 Rafiquddin - 44 - WP No.10575 of 2021 C/W WP No.17163 of 2021 3 (1996) 6 SCC282– Secretary (Health) 7,8,9 Department of Health & F.W vs Dr Anita Puri 4 (2004) 6 SCC786– Inder Parkash Gupta /// vs State of J & K51995 Supp (1) SCC325– Subash Chandra 19, 24 Verma vs State of Bihar 6 (1994) 2 SCC630– J & K Public Service 8, 9 Commission vs Dr Narinder Mohan 7 (1992) 2 SCC206– Karnataka Public /// Service Commission vs B.M. Vijaya Shankar 8 Relevant extract of Concise Oxford English - Dictionary (12th Edition) 9 Relevant extract of Black’s Law Dictionary - (8th Edition) 10 Relevant extract of P. Ramanatha Aiyar’s - Advanced Law Lexicon (3rd Edition) Arguments on behalf of the State Government :
29. The learned AAG and Senior counsel Sri Dhyan Chinnappa representing the State would attempt to distinguish Rule 49 and would contend that the said rule is inapplicable to the current facts and circumstances of the case. He would submit that the Doctrine of Occupied Field is wholly inapplicable to the facts and circumstances obtaining herein. He would then draw the attention of the Court to the observations of the Full Bench in para 7 of the said judgment of the Allahabad High Court, noted supra.-. 45 - WP No.10575 of 2021 C/W WP No.17163 of 2021 He would contend that the Full Bench has opined that the power is exercised under the D & C Rules, 1945 and amendment of the C & R Rules. He would contend that the conditions have been incorporated by exercising power vested in the State under Article 309 of the Constitution and that it is no more res-integra that the State has the power to stipulate a higher qualification than the stipulated qualification as the posts are in the department which come under the State Government under the rules framed and governing the functions of the department in the State. He would submit that the questions raised in the instant writ petition are not issues which had fallen for consideration by the Full Bench of the Allahabad High Court. This is apparent on a reading of the paragraph 16 of the judgment. He would further attempt to distinguish the argument canvassed on behalf of the petitioner that Rule 49 of the D & C Rules, 1945, is the repository, conferring powers with regard to legislation and would attempt to debunk the theory of the petitioner that the State Government is denuded of any authority to legislate - 46 - WP No.10575 of 2021 C/W WP No.17163 of 2021 on the said issue. He would contend that the Hon’ble Apex Court has recognized the power of the State under Article 309 to legislate even in respect of occupied fields. In this regard he would place reliance on the judgment of the Hon’ble Apex Court rendered in Satyapal Reddy’s case (supra), a judgment rendered under the Motor Vehicles Act.
30. Further pointing out the provisions of Article 309 he would contend that the same enables the State to fix a higher qualification over and above the qualification criteria stipulated under the Central Legislation. That the action of the KPSC is in consonance with the constitutional provision. That these aspects, more particularly the scope and dimensions of Article 309 and its implications on the power of the State to legislate were not aspects that were called in question or considered by the Full Bench of the Allahabad High Court.
31. Nextly, the learned AAG elaborating further would contend that question of repugnancy would not - 47 - WP No.10575 of 2021 C/W WP No.17163 of 2021 arise and would place reliance on the ruling rendered in Suman Devi’s case reported in (2021) 6 SCC163and would take the Court through paragraphs 2, 12, 14 and 30. CASE CANVASSED ON BEHALF OF THE PRIVATE RESPONDENTS:
32. The learned Senior counsel Sri Udaya Holla representing the respondent No.4 to 58, would place reliance on the ruling in the case of S.Satyapal Reddy to contend and canvass the power of the State to prescribe additional qualifications. He would also place reliance on the ruling in the case of Mahesha A.C. and others vs. State of Karnataka and others1 wherein, the Co- ordinate Bench headed by the then Chief Justice, was pleased to uphold the additional qualifications, prescribed over and above the minimum qualification as valid and in particular, would take the Court through paragraph No.12 of the said judgment. 1 ILR2015KAR1- 48 - WP No.10575 of 2021 C/W WP No.17163 of 2021 33. Learned Senior counsel would then place reliance on the ruling in the case of State of Uttar Pradesh and Others vs. Bhupendra Nath Tripathi and Others2 and in particular, would take this Court through paragraph No.35 to impress on the principle that the State has leeway in law and right to impose or prescribe additional qualification. Further reliance is placed on the ruling in the case of Dhananjay Malik and Others vs. State of Uttaranchal and Others3 whereby the Hon’ble Apex Court has been pleased to analyse and hold that candidates, who have participated in the selection process and are unsuccessful are estopped from challenging the recruitment process and would take this Court through paragraph Nos.7, 8 and 10. He would further place reliance on the ruling rendered in the case of D. Sarojakumari vs. R. Helen Thilakom and Others4 to buttress the above contention. 2 (2010) 13 SCC2033 (2008) 4 SCC1714 (2017) 9 SCC478- 49 - WP No.10575 of 2021 C/W WP No.17163 of 2021 ARGUMENTS ON BEHALF OF THE PETITIONERS IN W.P.No.17163/2021.
34. Learned Senior counsel Sri. Sandesh J.
Chouta, appearing on behalf of the petitioners would at the outset submit that the entire exercise is a fiasco and that norms have been changed in mid-stream, only to achieve a predetermined result and that 25 out of 70 candidates are all candidates, who were rendering duties with the Department itself. That 20 of them were discharging duties as Scientific Officers and the remaining 5 are Lab Technicians. He would submit that the Rule, with regard to estoppel, whereby the law has been evolved estopping unsuccessful candidates from questing the process is inapplicable to the petitioners and that the petitioners stand on a different footing all together.
35. He would submit that i) they have challenged the virus of the stipulation, ii) they have submitted objections even at the time of Notification and applying for the post, (iii) Objections have been filed to the Notification - 50 - WP No.10575 of 2021 C/W WP No.17163 of 2021 even prior to making their application and in this regard, the ruling of the Hon’ble Apex Court rendered in the case of Forum for People’s Collective Efforts (FPCE) and Another vs. State of West Bengal and Another5 was placed before the Administrative Tribunal, which was not considered.
36. He would contend that the pith and substance of the two acts need to be compared and the Tribunal was also enlightened about Nidhi Pandey vs. UPSC and Another’s6 case. He would further pose a query as to why preference in testing and manufacture of Schedule C and C1 drugs alone were insisted upon, when there are Schedule Drugs from Schedules A to Y under the Central Rules. He would invite the attention of the Court to Annexure-A5 being the objections submitted by the petitioners as early as on 12.04.2018 under which, they have requested to drop the stipulation regarding experience. He would then take the Court to Annexure- 5 (2021) 8 SCC5996 CAT, Delhi – OA No.2390/2016 - 51 - WP No.10575 of 2021 C/W WP No.17163 of 2021 A12 being the Minutes of the Meeting of Drugs Technical Advisory Board held on 16.05.2018 and would point out the resolution passed by the Board on Agenda II wherein, it has been resolved to recommend the removal of the provisions relating to experience under Rule 49 (i), (ii) and (iii) of D & C Rules, 1945. He would submit that written examinations were held between 13.12.2018 and 16.12.2018 and about 3000 candidates took the written examination. He would submit that a similar examination was also conducted by the Tamil Nadu Public Service Commission and would take the Court through paragraph No.4 of the Publication, more particularly, 4 (B), which relates to Educational Qualification and would submit that though experience is imposed as a requisite qualification, there is no insistence on experience in the Manufacture and Research of Schedule C & C1 Drugs and that the experience that is sought for is one in general analysis of drugs. He would submit that one more representation was forwarded on 16.09.2019, which came to be replied on - 52 - WP No.10575 of 2021 C/W WP No.17163 of 2021 15.10.2019 stating that the representations have been forwarded to the Drugs Controller.
37. Learned Senior counsel would take this Court through Annexure-A8 dated 28.11.2018 to demonstrate his contention that the Rules of the game have been changed after the game has begun. He would submit that the Notification inviting the applications was issued on 23.03.2018, while the decision to have the Experience Certificate verified by the Drugs Controller pursuant to resolution by the State. He would submit that the Resolution nowhere stipulates possession of experience in the research and manufacture of Schedule C and C1 drugs alone.
38. He would take the Court through the duties and obligations of the Officers in the Office of the Drugs Controller, more particularly, would take the Court through that portion of the Manual of the Drugs Control Department dealing with duties and responsibilities of the scientific officers to contend that none of the Scientific - 53 - WP No.10575 of 2021 C/W WP No.17163 of 2021 Officers i.e., 20 selected Scientific Officers have any duty which involves either Manufacture or Research on Schedule C and C1 Drugs. With regard to the Laboratory Technician, the duties assigned under the Manual are assisting the Government Analyst and Section Heads and carryout such works as is entrusted by higher-ups. He would submit that 5 such Laboratory Technicians have been shown as selected. That none of them possessed any experience in the field of Manufacture and Research of Schedule C and C1 Drugs. He would contend even the Certificates only speak of experience in testing and analyzing, yet 25 of the in-house or in-service candidates have been selected when they were wholly ineligible. He would contend that one more objection was also placed before the concerned Health Minister on 25.10.2019 produced as Annexure – K and objections were also filed on 21.11.2019 and 25.11.2019 but all remained unconsidered and the efforts were in vain.-. 54 - WP No.10575 of 2021 C/W WP No.17163 of 2021 39. He would submit that in all, the names of 232 candidates were shortlisted in the ratio of 1:3 and many of the candidates including the petitioners were called to attend interviews between 21.11.2019 to 27.11.2019. That, between the said dates, 64 candidates including the petitioner were interviewed and in fact the petitioner received a communication from the Commission that the documents of the candidates would be scrutinized on 22.11.2019. That thereafter, the Provisional Select List came to be published on 15.12.2020. Aggrieved, the petitioners approached the Tribunal and the Tribunal passed the orders rejecting applications on 12.05.2021 and thereafter, the Final List came to be published on 22.06.2021 and on 24.06.2021, a Co-ordinate Bench of this Court was pleased to grant a conditional interim order restraining the respondents from issuing any appointment orders.
40. Learned Senior counsel Sri. Sandesh J.
Chouta would take the Court through the ambit of the D & C Act, - 55 - WP No.10575 of 2021 C/W WP No.17163 of 2021 1940 and would submit that the Act is enacted in 1940 and consists of a mere 5 chapters.
41. Elaborating on the same, he would point out that Section 12 of Chapter III vests the power of making rules exclusively in the Central Government. He would contend that Section 21 of Chapter IV provides for Appointment of Inspectors both by Central Government and State Government but the same is not an absolute right, but is qualified and appointments can be only in respect of those possessing the prescribed qualification i.e., qualification prescribed under the Act and Rules. He would take the Court through sub-section (2) of Section 21 to impress the nature and scope of the provisions of the Act. That the powers and duties to be exercised are such of those as prescribed therein. He would further take the Court through Section 33 wherein yet again the power to make Rules is vested in the Central Government. He would submit that the Rules relate to the effective implementation of the Act and in particular, Clause (n) of - 56 - WP No.10575 of 2021 C/W WP No.17163 of 2021 Section (2) of Section 33 invests the Central Government with the authority to prescribe the power and duties of Inspector 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. He would contend that even in respect of duties and obligations of the Inspectors, the Parliament in its wisdom has vested the same with the Central Government only. He would further take the Court through the provisions of Section 33 (n) where yet again the power to make rules has been invested in the Central Government. He would then request the Court to traverse, three provision i.e., Section 12, Section 33 and Section 33 (n) and would submit that all the three are placed in three different Chapters, namely, Section 12 is placed in Chapter III, which deals with Import of Drugs and Cosmetics and other matters. He would point out that Section 33 is placed in Chapter IV, which deals with - 57 - WP No.10575 of 2021 C/W WP No.17163 of 2021 Manufacture, Sale and Distribution of Drugs and Cosmetics. He would submit that Section 33 (n) is placed in Chapter IVA, which yet again deals with provision relating to Ayurveda, Sidda and Unani Drugs etc. He would submit that the Act of the Parliament and the intention of the Parliament to exclusively vest the rule making power in the Central Government is amply clear by the persistence of the Parliament in investing the Central Government alone with all the rule making powers.
42. He would contend that the reasons are not far to see. That the Act deals with drugs including life saving drugs and hence, the same cannot be left to the wishes of the States and uniform standards are required and if such uniform standards are not maintained, it could result in catastrophic consequences.
43. He would further take the Court through Section 38 placed in Chapter V of the Act whereunder the provision mandates that all such rules legislated by - 58 - WP No.10575 of 2021 C/W WP No.17163 of 2021 Parliament shall be placed before each house for a total period of 30 days when the houses are in session. He would submit that this singular provision would by itself be suffice to infer that the field is completely occupied by the law made by the Parliament with no ground ceded State to manoeuvre and contended that it has no statutory authority and power to frame Rules.
44. Learned Senior counsel would take the Court through the Preamble of the Act, more particularly, Section 103 of the Government of India Act, 1935, and would submit that the same is equivalent to Article 252 of the Constitution of India, to contend that the source of legislative power is traceable to Part XI. This argument is placed to counter the contention of the State that the power of the State is traceable to the List and he would clarify that the Lists merely reflect the fields of legislation and not the source for legislation. He would then take the Court through Section 3 (e) of the D & C Act, 1940 and would contend that if the same is read in conjunction with - 59 - WP No.10575 of 2021 C/W WP No.17163 of 2021 Sections 21 and 33-G of the D & C Act, 1940, the only inescapable conclusion that can be drawn is that, the statute vests in the State only the limited power of appointing Inspectors. He would contend that the power to appoint does not include the power to legislate. He would draw the attention to the phrase “having the prescribed qualifications” employed in Section 21 of the D & C Act, 1940, to buttress his argument noted supra.
45. Learned Senior counsel would take the Court through Section 33 (1) and 2 (b) to elaborate on the phrase “prescribed qualification”. He would emphasize on the language of sub-section (1) of Section 33 of the D & C Act, 1940. He would contend that the provision mandates a mandatory prior consultation with the Board i.e., the Board constituted under the Act and a previous publication by Notification in the Official Gazette for making any Rules for the purpose of giving effect to the provisions under Chapter IV, which includes the power of making Rules and he would further take the Court through proviso to sub- - 60 - WP No.10575 of 2021 C/W WP No.17163 of 2021 section (1) of Section 33 of the D & C Act, 1940, to contend that the power to dispense with the consultation is vested only in the Central Government and in the instant case, he would submit that there has been no such consultation though mandatory. He would contend that the intention behind pointing out the same, is only to impress upon the Court the dimension of the central statute.
46. Learned Senior counsel answering to the reliance of the respondents on the provision i.e., Article 309 of the Constitution, would contend that the same only enables framing of transitory provision and does not enable the State to legislate contrary to Article 245 of the Constitution. He would further contend that even the scope of duties cast on the Inspectors under the Act and Rules can be traced to Rules 45, 49A, 44, 50A, 51 and 52 of the Drugs and Cosmetics Rules, which are all placed in Part V of the Rules and which clearly go to demonstrate - 61 - WP No.10575 of 2021 C/W WP No.17163 of 2021 the intention of the Parliament to vest exclusively the power of rule making in the Central Government alone.
47. He would then take the Court through Rule 49 of the Drugs and Cosmetics Rules. Learned Senior counsel would also take the Court through various Forms attached to Schedule A of the Rules, and Schedules B to Y, which relates to Scheduled Drugs. He would then take the Court through Section 3 (i) of D & C Act, 1940, to emphasize and buttress his argument that qualification etc are to be only such of those qualification as those prescribed under the Act and Rules. The word ‘prescribed qualification’ is described under 3 (i) to mean ‘prescribed by rules made under this Act’.
48. Nextly, he would contend that the Karnataka State Civil Services Act, 1978, does not create a post or define a post nor does it contain the eligibility or qualification of any post or the powers and duties associated with the posts. That 1978 Act does not - 62 - WP No.10575 of 2021 C/W WP No.17163 of 2021 empower the State Government to legislate Rules contrary to any Central enactment. He would refer to the Statement and Objects of the enactment wherein, reference is found to the provisions of Articles 187 (2), 229 (2) and 309 and to List II Entries 3 and 41 of Seventh Schedule of the Constitution of India. He would further contend that the Act received accent of the President only on 12.07.1985 and would submit that the most critical provision is Section 3 of the D & C Act, 1940. He would contend that Regulation cannot mean to include stipulating qualification or eligibilities, in the teeth of the parent enactment.
49. Elaborating further on Article 309 the learned Senior counsel Sri Sandesh J Chouta would contend that the usage of the word ‘provided’ would render Article 309 is transitional in nature and in this regard he would place reliance on the ruling in the case of A B Krishna and others vs. The State of Karnataka and others7 and 7 (1998) 3 SCC495- 63 - WP No.10575 of 2021 C/W WP No.17163 of 2021 would place reliance on the observation in paragraphs 4, 6, 8, 9 and 10, in order to buttress his contention that powers of the State is displaced on the principles of Doctrine of Occupied Field where the field is covered by Central Legislation and as the services and posts are in connection with the affairs of the Union and would submit that though the rules entrust the power of making appointments in the State no other power is ceded muchless any power to legislate any rules or thereunder impose any stipulations regarding eligibility to be appointed to the post.
50. The learned Senior counsel would proceed further and has attempted to draw and demonstrate the fine distinction between the scope of Section 3 of the Karnataka State Civil Services Act, 1978 and the Central Act of Drugs and Cosmetics Act, 1940. He would submit that a reading of Section 3 would amply clarify its area of operation and the subjects mentioned therein.-. 64 - WP No.10575 of 2021 C/W WP No.17163 of 2021 51. Nextly, the learned Senior counsel would take the Court through Section 8 which is the rule making power but he would contend that such power is limited to legislating rules for the purpose of carrying out the objects of the Act only and it stands clarified on a bare perusal of sub section (1) of Section 8 of the Act. He would contend that, the respondents have lost sight of this distinction and have fallen in error, resulting in the impugned action.
52. He would submit that, the public service commission is constituted under Article 315 and has four core functions and that the discharge of the functions is as per Article 320. He would contend that the present subordinate legislation is challenged on five grounds – (i) the lack of legislative competence to enact the subordinate legislation; (ii) violation of fundamental rights especially Article 14 and 16; (iii) the rule fails to confirm to the statute under which it is made and it exceeds the limits of authority conferred by the enabling Act; (iv) recruitment rules of 2013 is repugnant to the preliminary enactment - 65 - WP No.10575 of 2021 C/W WP No.17163 of 2021 namely the Drugs and Cosmetics Act of 1940; and (v) the rule is actuated by manifest arbitrariness, unreasonableness, to the extent it would force this Court to hold that the legislation is without competence. In support of the five grounds noted supra he would submit as under – That, the Rule 49 is a creature of the power vested in the Central Government by virtue of Section 33. That, the sole repository regarding qualification and criterion for the post of a drug inspector is contained in rule 49 only.
53. He would contend that the contention, that the power of the State to legislate and thereby complement the Union legislation, is highly misplaced and that reliance on Satyapal Reddy’s case (supra) is misplaced. Elaborating further, he would submit that the language and scope of the Motor Vehicles Act and the language and scope of the provisions of the Drugs and Cosmetics Act are dissimilar.-. 66 - WP No.10575 of 2021 C/W WP No.17163 of 2021 54. In this regard, he would submit that under the Motor Vehicles Act the statute separately vests specific rule making power both in the Union Government and the State Government and that it is unfortunately not so in the case of the Drugs and Cosmetics Act and the statute does not vest any authority in the state except to the very limited extent of making appointments in accordance with the Act.
55. In his endeavor to demonstrate the said contention, the learned Senior counsel has taken us through the various provisions of the M.V. Act. He would refer to Section 27 in Chapter II under which power is vested in the Union and he would then take the Court through Section 28 whereby, certain powers are vested in the State to make rules. Similarly, he would point out to Section 38 in chapter III, Sections 64 and 65 in chapter IV, Sections 95 and 96 in chapter 6; Sections 107 and 108 in chapter 6 and Sections 137 and 138 in Chapter VIII; Section 164 ( c) in chapter XI, Section 176 in chapter XII - 67 - WP No.10575 of 2021 C/W WP No.17163 of 2021 and Section 213 in chapter XIV. In that view of the matter, he would contend that the ruling of the Hon’ble Apex Court in S Satyapal Reddy’s case (supra) and the ratio laid down in the said case and the dictum therein are wholly inapplicable in the facts and circumstances of the instant case.
56. He would submit that unlike the M.V. Act which specifically empowers the state also to legislate, the Drugs and Cosmetics Act does not cede any such ground to the State legislature and in that view of the matter, he would submit that the said illustration and comparison drawn above are sufficient to hold that, regarding stipulating criteria and eligibility conditions, are fields occupied by the Central legislation and beyond the legislative competence of the State. With regard to the arbitrariness in the rule he would contend that Rule 49 of the Rules does not incorporate experience as a qualification and imposition of any such qualification can only be by way of an amendment to Rule 49 and which amendment would gain - 68 - WP No.10575 of 2021 C/W WP No.17163 of 2021 life only after it has been placed before the parliament. Hence, he would contend that the Recruitment Rule of 2019 is liable to be struck down as the same amounts to colorable exercise of power.
57. Nextly, the learned senior counsel would take the Court to list 3 of the VII schedule and would point out that the drugs is included in Entry 19 of the Concurrent list and in this regard, he would take the Court through Article 254 of the Constitution relating to Repugnancy of laws. Elaborating further, he would contend that power to legislate can be traceable only to entry No.19, list III which are merely fields of legislation and do not vest the State with the power to legislate. He would further contend that the state by insisting to include the additional qualification of experience is creating an impediment where none exists.
58. He would submit that, class legislation in the guise of stipulating higher qualification or additional qualification is forbidden. He would further contend that, - 69 - WP No.10575 of 2021 C/W WP No.17163 of 2021 the additional qualification that is sought to be imposed has no intelligible differentia, as it would not enable the Drug inspectors appointed by the State to act differently or can they be distinguished from the Drug Inspectors hailing from other parts of the country. The imposition has no rational or any relation to the object sought to be achieved. Hence the same does not amount to a reasonable classification.
59. He would contend that, when Article 14 is the genisis then article 16 is only a specie. He would contend that the grounds 3, 4 and 5 raised in the writ petition stands substantiated by the ruling of the Hon’ble Apex Court in the case of State of Tamil Nadu and another vs. P.Krishnamurthy and others8 where the Hon’ble Apex Court was examining the validity of the Tamil Nadu Mineral Concession Rules in the light of the MMDR Act and he would place reliance on paragraphs 16, 17, 18 and 20 of the said ruling. He would contend that the Apex Court 8 (2006) 4 SCC517- 70 - WP No.10575 of 2021 C/W WP No.17163 of 2021 has enumerated and settled six criterias; which are as below :– 15. ………… (a) Lack of legislative competence to make the subordinate legislation. (b) Violation of fundamental rights guaranteed under the Constitution of India. (c) Violation of any provision of the Constitution of India. (d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act. (e) Repugnancy to the laws of the land, that is, any enactment. (f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules).
60. In this regard he would place reliance on Para 21 of the aforesaid ruling, to canvass that one of the most relevant consideration to test the constitutionality or otherwise of a statute is the objects and reasons as well as the legislative history of the statute. He would then nextly place reliance on the ruling in the case of Central Bank of - 71 - WP No.10575 of 2021 C/W WP No.17163 of 2021 India vs. The State of Kerala and others9 and would take the Court through Paragraphs 24, 25, 26, 28, 29 and 30 to contend that the resolution for the present impasse is to be found in article 254 which commences with the heading “inconsistency between laws made by parliament and the laws made by the legislatures of the State. He would nextly place reliance on the ruling reported in the case of State of Kerala and others vs. Mar Appraem Kuri Company Ltd., and another10 and would take the Court through paragraphs 44 to 47 wherein the Apex Court has succinctly dealt with the aspects of occupied fields and repugnance. He would submit that the Doctrine of Occupied Field is applicable in so far as it relates to List I and II and the Doctrine of Repugnancy applies to the cases of list III. He would then take the Court through the Full Bench decision in Kuldeep Singh’s case. He would also place reliance on the ruling in the case of Sachin Saggar vs. The State of Punjab and others11 (paras 4, 9 (2009) 4 SCC9410 (2012) 7 SCC10611 2010 (79) ALR879- 72 - WP No.10575 of 2021 C/W WP No.17163 of 2021 8 and
19) and he would also place reliance on the judgment rendered by the Apex Court in Special Appeal No.804/2010 (paras 4, 6, 11, 12 and
16) and 2014 (ILR) 1 P & H24(paras 8, 9 and 10). In that view, He would contend that the question of Full Bench decision going subsilentio as contended by the AAG is unsustainable. He would take the Court through the facts and circumstances leading to the constitution of Full Bench and its consideration in Kuldeep Singh vs. State of U.P. That the disputes leading to the constitution of the Full Bench and decision by the same in Kuldeep Singh’s case involve identical circumstances and He would take the Court through Para 12 of the said case to demonstrate the circumstances therein and the circumstances in the present case with both being on par. Reply by the learned senior counsel Sri Aditya Sondhi 61. In reply, the learned senior counsel Sri Aditya Sondhi appearing on behalf of the petitioner in WP - 73 - WP No.10575 of 2021 C/W WP No.17163 of 2021 No.10575/2021, would take the Court through the impugned rule and would point out that the mischief is to be found in the schedule to the recruitment rules enacted on 12.09.2013 wherein the post of drug inspector is found at Sl.No.8 and in column No.7 relating to minimum qualification the state has imposed the condition of possessing 18 months experience in the manufacturing or in testing of schedule C and C1 drugs which is directly in contravention of Rule 49 of the Central Rules. He would place reliance on the ruling of the Hon’ble Apex Court in the case of M/s Hoechst Pharmaceuticals Ltd., and Others vs. State of Bihar and others12 and would take the Court through para 69 and would also place reliance on A B Krishna’s case (supra) and would take the Court through paras 5, 6 7 and 13 and wound contend that, the appropriate legislature, as found in Article 309 is the Union Government and hence He would contend that the impugned recruitment rule being vitiated by lack of competence and the enactment trenching upon the field of 12 (1983) 4 SCC45- 74 - WP No.10575 of 2021 C/W WP No.17163 of 2021 legislation of the Union, calls for issuance of Writ of Certiorari and the same requires to be quashed accordingly. REASONS AND CONCLUSIONS62 Having heard the learned Senior counsels and the counsels on record and having given our anxious consideration to various contentions, at the very outset, we place our attention on the submissions by learned Senior counsel Sri. Sandesh J.
Chouta with regard to the Scheme of the D & C Act, 1940.
63. Learned Senior counsel has taken this Court through Chapter III, Chapter IV, Chapters IVA and V, Chapters constituting the D & C, 1940 Enactment. He would take the Court through Sections 12, 21, 33 and 38 of the D & C Act, 1940. These are provisions, which enable the legislation of rules and a plain reading of the said provisions leaves no doubt in the mind of this Court that the entire rule making power has been vested in the Parliament alone and no ground is ceded to the State to - 75 - WP No.10575 of 2021 C/W WP No.17163 of 2021 legislate. It is not in doubt that the field of operation ceded to the State is only to the extent of making appointment of Inspectors but it in no way, otherwise reserves any authority in the State to frame any Rules regarding appointment much less prescribing any criteria or eligibility. The provisions of Sections 12, 21, 33 of the D & C Act, 1940, leaves no doubt in the mind of the Court that the field of legislation is wholly occupied by the central legislation and that the State stands denuded of any authority to legislate with regard to the same.
64. The conclusions drawn by this Court as above, is further fortified by the provisions of Section 38 placed in Chapter V of the D & C Act, which mandates that all Rules framed under the Act are required to be placed before the Parliament for a total period of 30 days. Respondents and the State have not been able to overcome or counter this.
65. That apart, the reliance by the State and other respondents on Satyapal Reddy’s case as noted above, is wholly misplaced. The scheme of the Motor Vehicles Act - 76 - WP No.10575 of 2021 C/W WP No.17163 of 2021 leaves no scope for any ambiguity or doubt. The provisions of Section 27 in Chapter II, Sections 28 and 38 in Chapter III, Sections 64 and 65 in Chapter IV, Sections 95 and 96 in Chapter VI, Sections 107 and 108 in Chapter VII, Sections 137 and 138 in Chapter VIII, Section 164 (C) in Chapter XI, Section 176 in Chapter XII, Sections 213 in Chapter XIV of the Motor Vehicles Act, leaves no doubt in the mind of the Court that the provisions equally empower both the Central and State Governments to legislate in respect of various fields and aspects covered under this Central enactment, which is not the case under the D & C Act, 1940. The language employed by the legislature in framing the provisions, more particularly, provisions noted above with reference to Rule making power, leaves no doubt in the mind of this Court that Parliament intended to vest the authority, exclusively in the Central Government. In that view of the matter, we have no hesitation to hold that the field, insofar as it relates to the prescription of any eligibility qualification, is fully occupied by the central legislation, that is, the D & C Act, 1940.-. 77 - WP No.10575 of 2021 C/W WP No.17163 of 2021 66. We place reliance on the observations of the Hon’ble Apex Court in the following cases in support of our above conclusion:- Sl. Citation Paragraph Nos. 1 A.B. Krishna & Ors vs state of Karnataka 8 & 9 & ors (1998) 3 SCC4952 Central Bank of India vs St of Kerala(2009) 28, 30, 32 4 SCC94& 33 3 State of Kerala & others vs. Mar Aparaem 39, 40, 47, Kuri Company Limited, (2012) 7 SCC10649, 55 & 56 4 Innoventive Industries Ltd v ICICI bank 51 (2018) 1 SCC4075 S. Satyapal Reddy Case (1994) 4 SCC3917 & 8 1. The Hon’ble Apex Court has been pleased to observe and hold as under in –Paragraphs 8 and 9 of A.B. Krishna v. State of Karnataka, (1998) 3 SCC495:
8. The Fire Services under the State Government were created and established under the Fire Force Act, 1964 made by the State Legislature. It was in exercise of the power conferred under Section 39 of the Act that the State Government made Service Rules regulating the conditions of the Fire Services. Since the Fire Services had been specially established under an Act of the legislature and the - 78 - WP No.10575 of 2021 C/W WP No.17163 of 2021 Government, in pursuance of the power conferred upon it under that Act, has already made Service Rules, any amendment in the Karnataka Civil Services (General Recruitment) Rules, 1977 would not affect the special provisions Validly made for the Fire Services. As a matter of fact, under the scheme of Article 309 of the Constitution, once a legislature intervenes to enact a law regulating the conditions of service, the power of the Executive, including the President or the Governor, as the case may be, is totally displaced on the principle of “doctrine of occupied field”. If, however, any matter is not touched by that enactment, it will be competent for the Executive to either issue executive instructions or to make a rule under Article 309 in respect of that matter.
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, the Governor, under Article 309 and the Government 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 - 79 - WP No.10575 of 2021 C/W WP No.17163 of 2021 of the rule-making power given under an Act constitute delegated or subordinate 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.
2. The Hon’ble Apex Court has been pleased to observe and hold as under in – Paragraphs 28, 30, 32 and 33 of Central Bank of India v. State of Kerala, (2009) 4 SCC94 “28. In A.S. Krishna v. State of Madras [AIR1957SC297:
1957. SCR399 the Constitution Bench considered challenge to validity of the Madras Prohibition Act, 1937 on the ground that the same is repugnant to the Evidence Act, 1872 and the Code of Criminal Procedure, 1898 which were enacted by Parliament. The Constitution Bench repelled the challenge and held: (AIR p. 303, para
12) “12. The position, then, might thus be summed up: When a law is impugned on the ground that it is ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation. To do that, one must have regard to the enactment as a whole, to its objects and to the - 80 - WP No.10575 of 2021 C/W WP No.17163 of 2021 scope and effect of its provisions. If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might incidentally trench on matters which are beyond its competence. It would be quite an erroneous approach to the question to view such a statute not as an organic whole, but as a mere collection of sections, then disintegrate it into parts, examine under what heads of legislation those parts would severally fall, and by that process determine what portions thereof are intra vires, and what are not. Now, the Madras Prohibition Act is, as already stated, both in form and in substance, a law relating to intoxicating liquors. The presumptions in Section 4(2) are not presumptions which are to be raised in the trial of all criminal cases, as are those enacted in the Evidence Act. They are to be raised only in the trial of offences under Section 4(1) of the Act. They are therefore purely ancillary to the exercise of the legislative power in respect of Entry 31 in List II. So also, the provisions relating to search, seizure and arrest in Sections 28 to 32 are only with reference to offences committed or suspected to have been committed under the Act. They have no operation generally or to offences which fall outside the Act. Neither the presumptions in Section 4(2) nor the provisions contained in Sections 28 to 32 have - 81 - WP No.10575 of 2021 C/W WP No.17163 of 2021 any operation apart from offences created by the Act, and must, in our opinion, be held to be wholly ancillary to the legislation under Entry 31 in List II. The Madras Prohibition Act is thus in its entirety a law within the exclusive competence of the Provincial Legislature, and the question of repugnancy under Section 107(1) does not arise.
30. While negating challenge to the State legislation, a three-Judge Bench laid down the following principles [Ed.: As observed in State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC201 pp. 281-82, para 31.]. : “(1) The various entries in the three lists are not ‘powers’ of legislation but ‘fields’ of legislation. The Constitution effects a complete separation of the taxing power of the Union and of the States under Article 246. There is no overlapping anywhere in the taxing power and the Constitution gives independent sources of taxation to the Union and the States. (2) In spite of the fields of legislation having been demarcated, the question of repugnancy between law made by Parliament and a law made by the State Legislature may arise only in cases when both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List and a direct conflict is seen. If there is a repugnancy due to overlapping found between List II on the one hand and List I and List III on the other, the State - 82 - WP No.10575 of 2021 C/W WP No.17163 of 2021 law will be ultra vires and shall have to give way to the Union law. (3) Taxation is considered to be a distinct matter for purposes of legislative competence. There is a distinction made between general subjects of legislation and taxation. The general subjects of legislation are dealt within one group of entries and power of taxation in a separate group. The power to tax cannot be deduced from a general legislative entry as an ancillary power. (4) The entries in the lists being merely topics or fields of legislation, they must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense. The words and expressions employed in drafting the entries must be given the widest possible interpretation. This is because, to quote V. Ramaswami, J., the allocation of the subjects to the lists is not by way of scientific or logical definition but by way of a mere simplex numeration of broad categories. A power to legislate as to the principal matter specifically mentioned in the entry shall also include within its expanse the legislations touching incidental and ancillary matters. (5) Where the legislative competence of the legislature of any State is questioned on the ground that it encroaches upon the legislative competence of Parliament to enact a law, the question one has to - 83 - WP No.10575 of 2021 C/W WP No.17163 of 2021 ask is whether the legislation relates to any of the entries in List I or III. If it does, no further question need be asked and Parliament's legislative competence must be upheld. Where there are three lists containing a large number of entries, there is bound to be some overlapping among them. In such a situation the doctrine of pith and substance has to be applied to determine as to which entry does a given piece of legislation relate. Once it is so determined, any incidental trenching on the field reserved to the other legislature is of no consequence. The court has to look at the substance of the matter. The doctrine of pith and substance is sometimes expressed in terms of ascertaining the true character of legislation. The name given by the legislature to the legislation is immaterial. Regard must be had to the enactment as a whole, to its main objects and to the scope and effect of its provisions. Incidental and superficial encroachments are to be disregarded. (6) The doctrine of occupied field applies only when there is a clash between the Union and the State Lists within an area common to both. There the doctrine of pith and substance is to be applied and if the impugned legislation substantially falls within the power expressly conferred upon the legislature which enacted it, an incidental encroaching in the field assigned to another - 84 - WP No.10575 of 2021 C/W WP No.17163 of 2021 legislature is to be ignored. While reading the three lists, List I has priority over Lists III and II and List III has priority over List II. However, still, the predominance of the Union List would not prevent the State Legislature from dealing with any matter within List II though it may incidentally affect any item in List I.
32. In State of W.B. v. Kesoram Industries Ltd. [(2004) 10 SCC201 the majority of the Constitution Bench recognised the possibility of overlapping of legislations enacted under different entries in Lists I and II in the Seventh Schedule and observed: (SCC pp. 213c-214c) “While reading the three lists, List I has priority over Lists III and II and List III has priority over List II. However, still, the predominance of the Union List would not prevent the State Legislature from dealing with any matter within List II though it may incidentally affect any item in List I. In spite of the fields of legislation having been demarcated, the question of repugnancy between law made by Parliament and a law made by the State Legislature may arise only in cases when both the legislations occupy the same field with respect to one of the matters enumerated in List III and a direct conflict is seen. If there is a repugnancy due to overlapping found between List II on the one hand - 85 - WP No.10575 of 2021 C/W WP No.17163 of 2021 and List I and List III on the other, the State law will be ultra vires and shall have to give way to the Union law. … If there is conflict, the correct approach is to find an answer to three questions step by step as under: One — Is it still possible to effect reconciliation between two entries so as to avoid conflict and overlapping?. Two — In which entry the impugned legislation falls, by finding out the pith and substance of the legislation. In this regard the court has to look at the substance of the matter. The doctrine of pith and substance is sometimes expressed in terms of ascertaining the true character of legislation. The name given by the legislature to the legislation is immaterial. Regard must be had to the enactment as a whole, to its main objects and to the scope and effect of its provisions. Incidental and superficial encroachments are to be disregarded. Interpretation is the exclusive privilege of the constitutional courts and the court embarking upon the task of interpretation would place such meaning on the words as would effectuate the purpose of legislation avoiding absurdity, unreasonableness, incongruity and conflict. As is with the words used so is with the language employed in drafting a piece of legislation. That interpretation would be preferred which would - 86 - WP No.10575 of 2021 C/W WP No.17163 of 2021 avoid conflict between two fields of legislation and would rather import homogeneity. It follows as a corollary of the above said statement that while interpreting tax laws the courts would be guided by the gist of the legislation instead of by the apparent meaning of the words used and the language employed. The courts shall have regard to the object and the scheme of the tax law under consideration and the purpose for which the cess is levied, collected and intended to be used. The courts shall make endeavour to search where the impact of the cess falls. The subject-matter of levy is not to be confused with the method and manner of assessment or realisation. and Three — Having determined the field of legislation wherein the impugned legislation falls by applying the doctrine of pith and substance, can an incidental trenching upon another field of legislation be ignored?. Once it is so determined if the impugned legislation substantially falls within the power expressly conferred upon the legislature which enacted it, an incidental encroaching in/trenching on the field assigned to another legislature is to be ignored.” - 87 - WP No.10575 of 2021 C/W WP No.17163 of 2021 33. In Govt. of A.P. v. J.B. Educational Society [(2005) 3 SCC212 the Court was called upon to decide whether there was any conflict between the provisions of the All India Council for Technical Education Act, 1987 and the A.P. Education Act, 1982 and whether the State legislation was liable to be declared void and inoperative on the ground that the State Legislature was not competent to enact law in the field occupied by the Central legislation .
3. The Hon’ble Apex Court has been pleased to observe and hold as under in – Paragraphs 39, 40, 47, 49, 55 and 56 of State of Kerala and others vs. Mar Appraem Kuri Company Limited, (2012) 7 SCC106 “39. One more aspect needs to be highlighted. Article 246(1) begins with a non obstante clause “Notwithstanding anything in clauses (2) and (3)”. These words indicate the principle of federal supremacy, namely, in case of inevitable conflict between the Union and State powers, the Union powers, as enumerated in List I, shall prevail over the State powers, as enumerated in Lists II and III, and in case of overlapping between Lists III and II, the former shall prevail. (See Indu Bhushan Bose v. Rama Sundari Devi [(1969) 2 SCC289: (1970) 1 SCR443 , SCR at p. 454.)” - 88 - WP No.10575 of 2021 C/W WP No.17163 of 2021 40. However, the principle of federal supremacy in Article 246(1) cannot be resorted to unless there is an “irreconcilable” conflict between the entries in the Union and State Lists. The said conflict has to be a “real” conflict. The non obstante clause in Article 246(1) operates only if reconciliation is impossible. As stated, the parliamentary legislation has supremacy as provided in Articles 246(1) and (2). This is of relevance when the field of legislation is in the Concurrent List. The Union and the State Legislatures have concurrent power with respect to the subjects enumerated in List III. [See Article 246(2).]. Hence, the State Legislature has full power to legislate regarding subjects in the Concurrent List, subject to Article 254(2) i.e. provided the provisions of the State Act do not come in conflict with those of the Central Act on the subject. [See Amalgamated Electricity Co. (Belgaum) Ltd. v. Municipal Committee, Ajmer [AIR1969SC227: (1969) 1 SCR430 .]. Thus, the expression “subject to” in clauses (2) and (3) of Article 246 denotes supremacy of Parliament .
47. The question of repugnancy between parliamentary legislation and State legislation arises in two ways. First, where the legislations, though enacted with respect to matters in their allotted spheres, overlap and conflict. Second, where the two legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, the parliamentary legislation will - 89 - WP No.10575 of 2021 C/W WP No.17163 of 2021 predominate, in the first, by virtue of non obstante clause in Article 246(1); in the second, by reason of Article 254(1).
49. In clause (1) of Article 254 the significant words used are “provision of a law made by the legislature of a State”, “any provision of a law made by Parliament which Parliament is competent to enact”, “the law made by Parliament, whether passed before or after the law made by the legislature of such State”, and “the law made by the legislature of the State shall, to the extent of repugnancy, be void”. Again, clause (2) of Article 254 speaks of “a law made by the legislature of a State”, “an earlier law made by Parliament”, and “the law so made by the legislature of such State”. Thus, it is noticeable that throughout Article 254 the emphasis is on law-making by the respective legislatures.
55. There is one more way in which this problem can be approached. Both the courts below have proceeded on the basis that there are conflicting provisions in the Central Act, 1982 vis-à-vis the State Act, 1975 (see paras 13, 14 and 15 of the impugned judgment). In our view, the intention of Parliament was clearly to occupy the entire field falling in Entry 7 of List III. The 1982 Act was enacted as a Central legislation to “ensure uniformity in the provisions applicable to chit fund institutions throughout the country as such a - 90 - WP No.10575 of 2021 C/W WP No.17163 of 2021 Central legislation would prevent such institutions from taking advantage either of the absence of any law governing chit funds in a State or exploit the benefit of any lacuna or relaxation in any State law by extending their activities in such States”.
56. The background of the enactment of the (Central) Chit Funds Act, which refers to the report of the Banking Commission has been exhaustively dealt with in Shriram Chits and Investment (P) Ltd. v. Union of India [1993 Supp (4) SCC226 as also in the Statement of Objects and Reasons of the 1982 Act. The clear intention of enacting the Central 1982 Act, therefore, was to make the Central Act a complete code with regard to the business of conducting chit funds and to occupy the legislative field relating to such chit funds.
4. The Hon’ble Apex Court has been pleased to observe and hold as under in – Paragraph 51 of Innoventive Industries Ltd. v. ICICI Bank, (2018) 1 SCC407: “51. The case law referred to above, therefore, yields the following propositions:
51. 1. Repugnancy under Article 254 arises only if both the Parliamentary (or existing law) and the State law are referable to List III in the Seventh Schedule to the Constitution of India.-. 91 - WP No.10575 of 2021 C/W WP No.17163 of 2021 51.2. In order to determine whether the Parliamentary (or existing law) is referable to the Concurrent List and whether the State law is also referable to the Concurrent List, the doctrine of pith and substance must be applied in order to find out as to where in pith and substance the competing statutes as a whole fall. It is only if both fall, as a whole, within the Concurrent List, that repugnancy can be applied to determine as to whether one particular statute or part thereof has to give way to the other. 51.3. The question is what is the subject-matter of the statutes in question and not as to which entry in List III the competing statutes are traceable, as the entries in List III are only fields of legislation; also, the language of Article 254 speaks of repugnancy not merely of a statute as a whole but also “any provision” thereof. 51.4. Since there is a presumption in favour of the validity of statutes generally, the onus of showing that a statute is repugnant to another has to be on the party attacking its validity. It must not be forgotten that that every effort should be made to reconcile the competing statutes and construe them both so as to avoid repugnancy—care should be taken to see whether the two do not really operate in different fields qua different subject-matters. 51.5. Repugnancy must exist in fact and not depend upon a mere possibility.-. 92 - WP No.10575 of 2021 C/W WP No.17163 of 2021 51.6. Repugnancy may be direct in the sense that there is inconsistency in the actual terms of the competing statutes and there is, therefore, a direct conflict between two or more provisions of the competing statutes. In this sense, the inconsistency must be clear and direct and be of such a nature as to bring the two Acts or parts thereof into direct collision with each other, reaching a situation where it is impossible to obey the one without disobeying the other. This happens when two enactments produce different legal results when applied to the same facts. 51.7. Though there may be no direct conflict, a State law may be inoperative because the Parliamentary law is intended to be a complete, exhaustive or exclusive code. In such a case, the State law is inconsistent and repugnant, even though obedience to both laws is possible, because so long as the State law is referable to the same subject-matter as the Parliamentary law to any extent, it must give way. One test of seeing whether the subject-matter of the Parliamentary law is encroached upon is to find out whether the Parliamentary statute has adopted a plan or scheme which will be hindered and/or obstructed by giving effect to the State law. It can then be said that the State law trenches upon the Parliamentary statute. Negatively put, where Parliamentary legislation does - 93 - WP No.10575 of 2021 C/W WP No.17163 of 2021 not purport to be exhaustive or unqualified, but itself permits or recognises other laws restricting or qualifying the general provisions made in it, there can be said to be no repugnancy. 51.8. A conflict may arise when Parliamentary law and State law seek to exercise their powers over the same subject-matter. This need not be in the form of a direct conflict, where one says “do” and the other says “don't”. Laws under this head are repugnant even if the rule of conduct prescribed by both laws is identical. The test that has been applied in such cases is based on the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the State legislation or part thereof is identical with that of the Parliamentary legislation, so that they cannot both stand together, then the State legislation will be said to be repugnant to the Parliamentary legislation. However, if the State legislation or part thereof deals not with the matters which formed the subject-matter of Parliamentary legislation but with other and distinct matters though of a cognate and allied nature, there is no repugnancy. 51.9. Repugnant legislation by the State is void only to the extent of the repugnancy. In other words, only that portion of the State's statute which is found to be repugnant is to be declared void.-. 94 - WP No.10575 of 2021 C/W WP No.17163 of 2021 51.10. The only exception to the above is when it is found that a State legislation is repugnant to Parliamentary legislation or an existing law if the case falls within Article 254(2), and Presidential assent is received for State legislation, in which case State legislation prevails over Parliamentary legislation or an existing law within that State. Here again, the State law must give way to any subsequent Parliamentary law which adds to, amends, varies or repeals the law made by the Legislature of the State, by virtue of the operation of Article 254(2) proviso.
5. The Hon’ble Apex Court has been pleased to observe and hold as under in – Paragraphs No.7 and 8 of S. Satyapal Reddy v. Govt. of A.P., (1994) 4 SCC391:
7. It is thus settled law that Parliament has exclusive power to make law with respect to any of the matters enumerated in List I or concurrent power with the State Legislature in List III of the VIIth Schedule to the Constitution which shall prevail over the State law made by the State Legislature exercising the power on any of the entries in List III. If the said law is inconsistent with or incompatible to occupy the same field, to that - 95 - WP No.10575 of 2021 C/W WP No.17163 of 2021 extent the State law stands superseded or becomes void. It is settled law that when Parliament and the Legislature derive that power under Article 246(2) and the entry in the Concurrent List, whether prior or later to the law made by the State Legislature, Article 246(2) gives power, to legislate upon any subject enumerated in the Concurrent List, the law made by Parliament gets paramountcy over the law made by the State Legislature unless the State law is reserved for consideration of the President and receives his assent. Whether there is an apparent repugnance or conflict between Central and State laws occupying the same field and cannot operate harmoniously in each case the court has to examine whether the provisions occupy the same field with respect to one of the matters enumerated in the Concurrent List and whether there exists repugnancy between the two laws. Article 254 lays emphasis on the words “with respect to that matter”. Repugnancy arises when both the laws are fully inconsistent or are absolutely irreconcilable and when it is impossible to obey one without disobeying the other. The repugnancy would arise when conflicting results are produced when both the statutes covering the same field are applied to a given set of facts. But the court has to make every attempt to reconcile the provisions of the apparently conflicting laws and court would - 96 - WP No.10575 of 2021 C/W WP No.17163 of 2021 endeavour to give harmonious construction. The purpose to determine inconsistency is to ascertain the intention of Parliament which would be gathered from a consideration of the entire field occupied by the law. The proper test would be whether effect can be given to the provisions of both the laws or whether both the laws can stand together. Section 213 itself made the distinction of the powers exercisable by the State Government and the Central Government in working the provisions of the Act. It is the State Government that operates the provisions of the Act through its officers. Therefore, sub-section (1) of Section 213 gives power to the State Government to create Transport Department and to appoint officers, as it thinks fit. Sub-section (4) thereof also preserves the power. By necessary implication, it also preserves the power to prescribe higher qualification for appointment of officers of the State Government to man the Motor Vehicles Department. What was done by the Central Government was only the prescription of minimum qualifications, leaving the field open to the State Government concerned to prescribe if it finds necessary, higher qualifications. The Governor has been given power under proviso to Article 309 of the Constitution, subject to any law made by the State Legislature, to make rules regulating the - 97 - WP No.10575 of 2021 C/W WP No.17163 of 2021 recruitment which includes prescription of qualifications for appointment to an office or post under the State. Since the Transport Department under the Act is constituted by the State Government and the officers appointed to those posts belong to the State service, while appointing its own officers, the State Government as a necessary adjunct is entitled to prescribe qualifications for recruitment or conditions of service. But while so prescribing, the State Government may accept the qualifications or prescribe higher qualification but in no case prescribe any qualification less than the qualifications prescribed by the Central Government under sub-section (4) of Section 213 of the Act. In the latter event, i.e., prescribing lesser qualifications, both the rules cannot operate without colliding with each other. When the rules made by the Central Government under Section 213(4) and the statutory rules made under proviso to Article 309 of the Constitution are construed harmoniously, there is no incompatibility or inconsistency in the operation of both the rules to appoint fit persons to the posts or class of officers of the State Government vis-a-vis the qualifications prescribed by the Central Government under sub- section (4) of Section 213 of the Act.-. 98 - WP No.10575 of 2021 C/W WP No.17163 of 2021 8. It is seen that A.P. Transport Subordinate Service Rules have been made by the Governor exercising the power under proviso to Article 309 of the Constitution and Rule 6 thereof prescribes the qualifications as enumerated above. Graduation in Mechanical Engineering is one of the higher qualifications than Diploma. Since Section 213(4) gives such power to the State Government by operation of Section 217 of the Act, the statutory rules remain valid and operate in the field without colliding with the Central rules. Both the rules would operate harmoniously and effect can be given to both the rules. Thus the question of inconsistency or repugnancy under Article 254 of the Constitution does not arise. Therefore, we do not find that there is any conflict in the exercise of power by both Central and State Governments or inconsistency in operation of the provisions of the statutory rules made by the Governor under proviso to Article 309 and the rules made by the Central Government under Section 213(4) of the Act. The recruitment as per State rules is valid and legal.
67. We have analysed the ambit and scheme of the D and C Act, 1940 in some detail in the preceding paragraphs 40 to 47 which would demonstrate that the - 99 - WP No.10575 of 2021 C/W WP No.17163 of 2021 Central enactment has completely vested the control of the field in the Central Government. The analysis of the various provisions would demonstrate that in every chapter a provision is made for framing rules and the power to frame such rules has been vested in the Central Government. In fact, Rule 49 of the D and C Rules prescribes the qualification and such prescription by Rule 49 is traceable to Section 3(i) wherein, the word “prescribed” has been defined to mean “as prescribed by the rules under this Act”, thereby leaving no scope for any anomalous thinking. The power to frame rules as noted above, under every chapter of the Act is vested with the union and if the above is appreciated in the background of Section 38, which mandates placing of the rules before both houses for a total period of 30 days, it leaves no doubt in the mind of this Court that the entire field of rule making is wholly vested in the Central Government and the State Governments are completely denuded of any power to legislate in this field. As rightly argued by the learned Senior counsel appearing for the petitioners the - 100 - WP No.10575 of 2021 C/W WP No.17163 of 2021 reason for such exclusion is not far to seek. The Act aims at standardisation of the drugs and cosmetics produced for human consumption and authorises the officers appointed under the Act to monitor the manufacture of life saving drugs, which in our considered opinion cannot be left to the whims and fancies of individual State Governments. The only power that has been delegated is, the power to appoint inspectors. The power to appoint is not absolute, but tempered. The use of the phrase “having the prescribed qualification” does not enable the State Government to prescribe qualifications. The provision of Section 3(i) defines the word “prescribed” and Rule 49 stipulates the qualification and criteria imposed under the rules. Thus making it imperative to read the power of the State Government to appoint inspectors in conjunction with the provisions of Section 3(i) read with Rule 49 of the D and C Rules. The definition of the word “prescribed” and the stipulation of the qualification under Rule 49 and the use of the phrase “having the prescribed qualifications” does not leave much for imagination. Rule - 101 - WP No.10575 of 2021 C/W WP No.17163 of 2021 49 begins with the nomenclature “qualification of inspectors” and the criteria is also detailed therein i.e., a degree in pharmacy or pharmaceutical science or Medicine with specialisation in Clinical Pharmacology or microbiology from a university established in India and it nowhere stipulates possession of experience.
68. That being the position in law and in the light of the law settled by the Hon’ble Apex Court in the cases of A B Krishna and others vs. State of Karnataka and others; Central Bank of India vs. State of Kerala; State of Kerala vs. Mar Appraem Kuri Company Ltd.;, and Innoventive Industries Ltd., vs. ICICI Bank & Another (supra) and in the light of the law laid down by the High Court of Delhi in Nidhi Pandey’s case (supra) and in the light of the law laid down by the Full Bench of the Punjab and Haryana High Court in Krishan Kumar vs. State of Haryana and another13, it leaves no doubt in the mind of this Court that the power to legislate in respect of Rule 13 2022 SCC Online P & H2130- 102 - WP No.10575 of 2021 C/W WP No.17163 of 2021 49 is wholly vested in the Central Government under the scheme of the Act and the State Government stands completely denuded of any authority to legislate over the said field.
69. The scheme of the D and C Act, 1940 is differently tailored than the Motor Vehicles Act. The stark distinction has been brought out in our discussion supra, more particularly in paragraphs 55 and 56 wherein, the different provisions under the Motor Vehicles Act which separately enable both the Central Government and the State Government to legislate have been culled out. In fact the various provisions in the various chapters of the MV Act have been referred to. A comparative assessment of the provisions of the D and C Act and the MV Act leaves no doubt in our mind that the enactments are structurally poles apart. If under the D and C Act we find the vesting of the rule making power in a single entity i.e., the Central Government, the Motor Vehicles Act has on the other hand has specifically delegated not only the powers under the - 103 - WP No.10575 of 2021 C/W WP No.17163 of 2021 Act, but also the rule making power in the State Government. There appears to be equitable distribution of the power in both the Central and State Government under the MV Act which is not the case under the D and C Act which vests the rule making power under every chapter of the Act in the Central Government, but also mandates the tabling of the rooms before both the houses of the parliament under section 38 of the Act.
70. The discussion above leaves no doubt in the mind of this Court that the legislation by the Central Government occupies the field and the State Government is denuded of any power to legislate to the contra. The argument that the qualification is in addition and complements the criteria is of no avail. Once it is held that the field of legislation is already occupied by a different legislation and the same having entrenched itself in the field, the State Government is denuded of any authority and any attempt to trench upon the occupied field would render it ultra vires.-. 104 - WP No.10575 of 2021 C/W WP No.17163 of 2021 71. In the light of the above discussion and in the light of the law laid down by the Hon’ble Apex Court and the various High Courts, as noted supra, we have no hesitation to hold that the field is fully occupied by the Central legislation of the Drugs and Cosmetics Act and in particular the field insofar as it relates to stipulating qualifications is occupied by provisions of Rule 49 read with Section 3(i) and Section 21.
72. It is also relevant to note that the Full Bench of the State of Punjab and Haryana in the case of Krishan Kumar’s case (supra)have been pleased to negate and declare as ultra virus, the rules framed by the State Government by holding that the same are repugnant to the Act of 1940. The issue of power of the State to legislate rules has also been negatived by a Full Bench of the High Court of judicature at Allahabad, which came to be affirmed by the Hon’ble Apex Court also in Kuldeep Singh’s case.-. 105 - WP No.10575 of 2021 C/W WP No.17163 of 2021 73. In the light of our findings and in the light of the judgment of the Full Bench of the Punjab and Haryana High Court rendered in the case of Krishan Kumar’s case with which we are in respectful agreement, we have not independently examined the issue of repugnancy.
74. Learned Senior counsel Sri. Udaya Holla, has placed reliance on various rulings. Learned Senior counsel has placed reliance on the ruling of the Co-Ordinate Bench of this Court rendered in Mahesha’s case (supra) wherein, the Co-ordinate Bench headed by the then Chief Justice was pleased to uphold the additional qualification. In support of this, reliance is again placed on Satyapal Reddy’s case and Mahesha’s case (supra) as noted above. This is yet another case where the coordinate bench was interpreting the provisions of Section 213 of the MV Act. It is pertinent to note that sub Section (3) enables the State Government to make rules to regulate sub Section (4) also authorizes the Central Government to stipulate qualifications. In that view the coordinate bench was - 106 - WP No.10575 of 2021 C/W WP No.17163 of 2021 pleased to hold that the State is enabled to stipulate a criteria over and above the minimum qualification prescribed by the Central Government. We have no quarrel with the said preposition and the said ruling is of no avail in view of this Court holding (supra) that the field is occupied field and the State is denuded of power to legislate.
75. In Satyapal Reddy’s case (supra), the Court has unerringly held and rightly so in view of the provisions enabling the State Government to also legislate in respect of stipulating the eligibility criteria etc. which is not the case under the D & C Act, 1940. Mahesha’s case (supra) also involved the recruitment of Motor Vehicle Inspector under the Motor Vehicles Act and Section 213 (4) of the Motor Vehicles Act was examined by the Bench and it has been held that in view of the Section 213 (4) of the Motor Vehicles Act, the State has no power to prescribe the qualification less than the qualification prescribed by the Central Government. In other words, the Division Bench - 107 - WP No.10575 of 2021 C/W WP No.17163 of 2021 has upheld the qualification, which is permissible under the Motor Vehicles Act as noted supra.
76. Now, we address the other limb of the argument canvassed on behalf of the private respondents that the petitioners having participated in the selection process are estopped from questioning the legality of the process.
77. In support of this contention, reliance is placed on the rulings rendered in Dhananjay Malik’s case (supra) and D. Sarojakumari’s case (supra). In our considered opinion the case of the petitioners stands on a different footing. The cited authorities would not come to the aid of the petitioners. In Dhananjay Malik’s case (supra) the Hon’ble Apex Court taking note of the fact that the non-selected candidates had participated in the process without any demur or protest and after the process having gone against them, were estopped from questioning the stipulated criteria or the process of selection. The fact remains that immediately on - 108 - WP No.10575 of 2021 C/W WP No.17163 of 2021 Notification and even prior to filing of the applications, some of the petitioners have filed their objections, copies of which have been produced as Annexures – A5 and A6 in W.P.No.17163/2021. The Hon’ble Apex Court while negating the case canvassed by the appellants has in para 10 placed reliance on Marripatti Nagaraja vs. Government of A.P. and the said paragraph is extracted hereunder – “10. In a recent judgment in Marripati Nagaraja v. Govt. of A.P., SCR at p. 516, this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process.
78. The reliance on the ruling rendered by the Hon’ble Apex Court in D Sarojakumari’s case (supra) is of no avail to the respondents. The Hon’ble Apex Court after taking note of its various rulings has observed and held in para 11 as under:
11. As far as the present case is concerned, an advertisement was issued by Respondent 6 inviting applications for the post of Music Teacher in Samuel - 109 - WP No.10575 of 2021 C/W WP No.17163 of 2021 LMS High School. Respondent 1 did not raise any objection at that stage that the post could not be filled in by direct recruitment and she should be considered for promotion. Not only that, she in fact, applied for the post and took part in the selection process. After having taken part in the selection process and being found lower in merit to the appellant, she cannot at this stage be permitted to turn around and claim that the post could not be filled in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance with the law laid down by this Court. In view of this, we need not go into the other issues raised.
79. In the case on hand it is not a case where the petitioner had participated in the process without any demur. It is pertinent to note that objections have been raised immediately on publication of the Notification and more particularly with reference to the imposition of the experience criteria.
80. A bare perusal of the objections would clearly demonstrate that the petitioners have objected to the stipulation of experience in the initial stage itself. Lastly, the contention of malafides or tweaking of the eligibility - 110 - WP No.10575 of 2021 C/W WP No.17163 of 2021 criteria in order to favour in-house candidates cannot be brushed aside lightly. It is seen that after the process of verification and interview had commenced, the respondents have deemed it necessary to alter the method of evaluation and invitation to officers of the Central Government to evaluate the testimonials is nothing but a mere ruse to cover up their tracks for altering the rules of the game, after the game has begun. In this regard this Court places reliance on the ruling rendered in the case of K Manjushree vs. State of Andhra Pradesh and another14 and reliance is placed on the observations in para 24, 26 and 27.
81. As rightly contended, the Certificates issued to the candidates, who were already in employment of the Department, are stereotyped. That apart, as rightly contended by learned counsel for the petitioners, the duties and responsibilities do not appear to give any opportunity to the in-house candidates to carryout any 14 (2008) 3 SCC512- 111 - WP No.10575 of 2021 C/W WP No.17163 of 2021 research or be associated with any manufacturing process as was touted as a necessary qualification.
82. For the discussions and reasons herein above, we pass the following:-
ORDER(i) The writ petitions are allowed. (ii) The orders of the Karnataka State Administrative Tribunal dated 12.05.2021 passed in Application Nos.5773- 5786/2020, 6990/2020, 6922-6928/2020, 6516/2020, 856/2021, 6495/2020, and in Application NO.6560/2019 dated 24.08.2021 are hereby set-aside. Consequently, the applications deserve to be allowed and the applications are partly allowed. (iii) Condition at Sl.No.2 at Column No.5 in Notification at 23.03.2018 prescribing and - 112 - WP No.10575 of 2021 C/W WP No.17163 of 2021 imposing qualification of experience is declared ultra vires Section 33N of the D & C Act read with Rule 49 of the Rules, 1945. (iv) The condition imposed under the Notification as below, hereby stands quashed. “(b) must have put in a service of not less than eighteen months of experience in the manufacturing and or testing of Schedule C and/or C1 drugs included in the Drugs and Cosmetics Rules, 1945.” (v) Consequently, all the endorsements dated 22.11.2019 are hereby quashed. (vi) There shall be a direction directing respondents to redo the select list, in accordance with the observations made hrereinabove and within an outer limit of - 113 - WP No.10575 of 2021 C/W WP No.17163 of 2021 three months from the date of receipt of certified copy of this order. The Report of the Committee placed in safe custody be released to learned counsel for respondent - KPSC after release of the order/judgment. Sd/- JUDGE Sd/- JUDGE ykl/dn List No.:
1. Sl No.: 1