Sandeep Shriram Warade And ORS v. The Maharashtra Public Service Commission Through Secretary And ORS
* 1/11 *
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7960 OF 2016 1 Sandeep Shriram Warade Aged 32 years, having address at Vrindavan B CHS, Plot No.29/41, Flat A-103, Sector-09, Khanda Colony, New Panvel (W), Pin 410206 2 Amol Subhash Rasal, Aged 32 years, having address at Digambar Saw Mill, Yogeshwar Colongy, Vinchur, Tq. Niphad, Dist. Nashik, Pin 422315 3 Jayvant Vishnu Kurane Aged 31 years, having address at A/P Kale Tq Panhala, Dist. Kolhapur, Pin 416205 4 Ganesh Shashikant Khamkar Aged 29 years, having address at Plot No.73/B, Near ZP School, Bhushan Nagar, A/P Kedgaon (Devi) Tq./Dist. Ahmednagar, Pin 414001 5 Nikhil Shripad Warghade Aged 28 years, having address at 1101, Powai lake heights CHS, Mhada deluxe 6, Rambaug, Powai, Mumbai, Pin 400076 6 Dnyaneshwar Pawar, Aged 32 years, having address at Flat No.703, 7th floor, Building no.1 Water ford, Panvelkar Classic Investment, Green city, Morivali, Tq. Ambernath (E), Kalyan, Pin 421501
* 2/11 * 7 Nandkumar Dharmraj Shivgan Aged 30 years, having address at Prerana Colony, Tirupati Nagar, Pimpargavan Road, Beed, Pin 431122 8 Vishal Tatyasaheb Kachare Aged 32 years, having address at Sanco Elegance, Flat No.A09, Plot No.97/15, Sector-06, Sant Nagar, Moshi Pradhikaran, Near PCNTDA Traffic Park, Pune, Pin 412105 9 Vikram Popat Jadhav Aged 33 years, having address at SS-2, Room No.498 (3rd Floor), Sector-07, Koparkhairane, Navi Mumbai Pin 400709.
10 Shoeb Bismilla Khan Aged 27 years, having address at 136/1, Islampura, A/p Amalner, Dist. Jalgaon, Pin 425401 11 Deepak Anandrao Pokale Aged 29 years, having address at A/p Nira Shivtakrar, Tq. Purandar, Dist. Pune, Pin 412102.
Petitioners.
Versus
1 The Maharashtra Public Service Commission, through its Secretary, having office at 3rd Floor, Bank of India Building, M.G.Road, Hutatma Chowk, Mumbai-400 001.
2 The State of Maharashtra Through the Secretary, Medical Education and Drugs Department, Mantralaya, Mumbai.
* 3/11 * 3 The Commissioner, Food and Drugs Administration, Survey No.341, Bandra Kurla Complex, Bandra (E), Mumbai-51 4 Drug Controller General of India DCG(I) Central Drugs Standard Control Organization (CDSCO) FDA Bhavan, ITO, Kotla Road, New Delhi-110002 .......Respondents Ms. Firdaus Moosa i/by Mr. Prakash Mahadik , Advocates for Petitioners.
Mr. Vishal Thadani, AGP for Respondent Nos.2 and 3. CORAM :
CORAM : SMT. V.K. TAHILRAMANI, & SMT. V.K. TAHILRAMANI, & SANDEEP K. SHINDE, JJ.
SANDEEP K. SHINDE, JJ.
DATE :
DATE : July 17, 2017.
July 17, 2017.
ORAL JUDGMENT : [ Per Sandeep K. Shinde, J.] ORAL JUDGMENT : [ Per Sandeep K. Shinde, J.] Rule Rule. Rule made returnable forthwith. With . Rule made returnable forthwith. With consent of the learned counsel for the parties, the matter is consent of the learned counsel for the parties, the matter is taken up for final hearing immediately.
taken up for final hearing immediately.
The Maharashtra Public Service Commission (In The Maharashtra Public Service Commission (In short '
short 'MPSC MPSC') invited applications for the post of Drug ') invited applications for the post of Drug Inspectors, Food and Drugs Department, Group-B by issuing Inspectors, Food and Drugs Department, Group-B by issuing
* 4/11 * advertisement on 31.3.2015, wherein it prescribed the advertisement on 31.3.2015, wherein it prescribed the following qualifications and the experience:
following qualifications and the experience:
"Clause 4.5Clause 4.5-Degree in Pharmacy or Degree in Pharmacy or Pharmaceutical Chemistry or in medicine with Pharmaceutical Chemistry or in medicine with specialization in clinical Pharmacology or specialization in clinical Pharmacology or Microbiology from a university established in India Microbiology from a university established in India by law; and by law; and Clause 4.6 Clause 4.6-Practical experience gained after -Practical experience gained after acquiring qualification [above in clause (i) in the acquiring qualification [above in clause (i) in the manufacture or testing of drugs or enforcement of the manufacture or testing of drugs or enforcement of the provisions of the Act for a period of not less than provisions of the Act for a period of not less than three years;
three years;
Clause 4.7Clause 4.7-Preference may be given to candidates Preference may be given to candidates having a post graduate degree in a subject mentioned having a post graduate degree in a subject mentioned in clause 4.5 or research experience in the synthesis in clause 4.5 or research experience in the synthesis and testing of drugs."
and testing of drugs."
Since large number of applications were received, Since large number of applications were received, screening test was conducted by the MPSC, of which the screening test was conducted by the MPSC, of which the results were declared on 30.4.2016. Seventy-one successful results were declared on 30.4.2016. Seventy-one successful candidates were called for interview, which was scheduled on candidates were called for interview, which was scheduled on 18.5.2016. Petitioners were amongst those successful 18.5.2016. Petitioners were amongst those successful candidates.
candidates.
* 5/11 * Petitioners pleaded that all of them are postPetitioners pleaded that all of them are postgraduates (M.Pharma) having more than 3 years experience graduates (M.Pharma) having more than 3 years experience in the Research and Development, which is in the nature of in the Research and Development, which is in the nature of manufacture and/or testing of the drugs and as such, were manufacture and/or testing of the drugs and as such, were eligible to be considered to the post of 'Drug Inspectors'. That eligible to be considered to the post of 'Drug Inspectors'.
That out of 71 successful candidates, 27 were from Research and out of 71 successful candidates, 27 were from Research and Development Units and remaining were from Production Unit Development Units and remaining were from Production Unit All the petitioners herein are from Research and Development All the petitioners herein are from Research and Development Unit of pharmaceutical companies. It is the petitioners' case Unit of pharmaceutical companies.
It is the petitioners' case that before interview, they were required to submit and show that before interview, they were required to submit and show their original documents to the two panels constituted by the their original documents to the two panels constituted by the MPSC; one panel was administrative panel of MPSC which was MPSC; one panel was administrative panel of MPSC which was entrusted with the work of verification of original documents; entrusted with the work of verification of original documents; whereas the other panel consisting of experts (in Food and whereas the other panel consisting of experts (in Food and Drugs) was entrusted with the work of verifying experience Drugs) was entrusted with the work of verifying experience certificates of the candidates. After verification of the certificates of the candidates.
After verification of the documents, the petitioners were not allowed to appear for the documents, the petitioners were not allowed to appear for the interview. They were informed by letter dated 1 interview. They were informed by letter dated 1st st and 2 and 2nd nd June, June, 2016, that 2016, that they do not hold/possess experience in they do not hold/possess experience in manufacture and testing of drugs manufacture and testing of drugs . ( .
* 6/11 * in manufacturing and testing of drugs and as such were in manufacturing and testing of drugs and as such were eliminated from the process of selection.
eliminated from the process of selection.
Aggrieved by their elimination, this petition is Aggrieved by their elimination, this petition is preferred under Articles 226 and 227 of the Constitution of preferred under Articles 226 and 227 of the Constitution of India wherein, following two substantive reliefs were sought; India wherein, following two substantive reliefs were sought; "a) for a declaration that experience required "a) for a declaration that experience required for selection to post of 'Drug Inspector', is not for selection to post of 'Drug Inspector', is not restricted to experience in manufacture or restricted to experience in manufacture or testing of drugs for sale and distribution only; testing of drugs for sale and distribution only; b) for an appropriate writ, order and direction b) for an appropriate writ, order and direction quashing and setting aside the rejection letter quashing and setting aside the rejection letter dated 1.6.2016 & 2.6.2016, issued by MPSC; "
dated 1.6.2016 & 2.6.2016, issued by MPSC; "
Petitioners amended the petition and sought Petitioners amended the petition and sought declaration that the judgment of the MAT dated 1.4.2014, declaration that the judgment of the MAT dated 1.4.2014, inter-alia holding, that only experience in Research & inter-alia holding, that only experience in Research & Development or testing in R & D laboratory cannot be termed Development or testing in R & D laboratory cannot be termed as experience under Rule 4(B)(b)(ii) of Recruitment Rules as experience under Rule 4(B)(b)(ii) of Recruitment Rules may kindly be quashed and set aside.
may kindly be quashed and set aside.
Be that as it may, on notice the MPSC resisted the Be that as it may, on notice the MPSC resisted the petitioners' claim by filing counter in December, 2016. The petitioners' claim by filing counter in December, 2016. The
* 7/11 * MPSC in paragraph 17 of its reply contended that the MPSC in paragraph 17 of its reply contended that the candidates who have only/exclusive experience in Research & candidates who have only/exclusive experience in Research & Development but not having experience in the manufacture or Development but not having experience in the manufacture or testing of drugs were ineligible as it falls short of requirement testing of drugs were ineligible as it falls short of requirement of Recruitment Rules.
of Recruitment Rules. The MPSC pleaded and contended The MPSC pleaded and contended findings recorded by MAT in Original Application No.820 of findings recorded by MAT in Original Application No.820 of 2013 on the very issue dis-entitles petitioners from claiming 2013 on the very issue dis-entitles petitioners from claiming appointment to the post of 'Drug Inspectors'. In the said appointment to the post of 'Drug Inspectors'. In the said judgment, Tribunal held that experience of manufacture or judgment, Tribunal held that experience of manufacture or testing in Research & Development laboratory cannot be testing in Research & Development laboratory cannot be termed as experience under Rule 4(B)(b)(ii) of Recruitment termed as experience under Rule 4(B)(b)(ii) of Recruitment Rules.
Tribunal further held that it is an experience which can Rules. Tribunal further held that it is an experience which can entitle candidate for giving him preference provided he has entitle candidate for giving him preference provided he has basic experience as per Rule 4(B)(b)(ii) of Recruitment Rules. basic experience as per Rule 4(B)(b)(ii) of Recruitment Rules. The point for determination is whether experience The point for determination is whether experience gained by candidates in Research and Development could be gained by candidates in Research and Development could be treated as relevant experience for the post of 'Drug treated as relevant experience for the post of 'Drug Inspectors'.
Inspectors'.
The very point fell for consideration before the The very point fell for consideration before the MAT in Original Application No.820 of 2013 wherein the MAT in Original Application No.820 of 2013 wherein the
* 8/11 * selection process for the post of 'Assistant Commissioner, selection process for the post of 'Assistant Commissioner, Drugs' was challenged. Eventually for the post of 'Assistant Drugs' was challenged. Eventually for the post of 'Assistant Commissioner, Drugs', prescribed qualification was Commissioner, Drugs', prescribed qualification was "experience gained after acquiring qualification in the experience gained after acquiring qualification in the manufacture or testing of drugs or enforcement of provisions manufacture or testing of drugs or enforcement of provisions of the Act of the Act" for the minimum " for the minimum period of 5 years period of 5 years. Thus, the .
Thus, the experience prescribed for the post of Assistant Commissioner, experience prescribed for the post of Assistant Commissioner, Drugs and the 'Drug Inspectors' is one and the same. It was Drugs and the 'Drug Inspectors' is one and the same. It was contended before the MAT that the experience in respect of contended before the MAT that the experience in respect of manufacturing of drugs shall be within the meaning of manufacturing of drugs shall be within the meaning of definition provided under Section 3(f) of the Drugs and definition provided under Section 3(f) of the Drugs and Cosmetics Act, 1940. The Tribunal after hearing the parties, Cosmetics Act, 1940.
The Tribunal after hearing the parties, held that the experience gained by candidates in laboratories held that the experience gained by candidates in laboratories cannot be considered because their experience relates to cannot be considered because their experience relates to clinical tests and the licence to such laboratories did not clinical tests and the licence to such laboratories did not permit manufacturing of drugs. On this analogy, the Tribunal permit manufacturing of drugs. On this analogy, the Tribunal was pleased to dismiss the applicants' claim. In the result, was pleased to dismiss the applicants' claim.
In the result, candidates, who gained the experience in laboratories and/or candidates, who gained the experience in laboratories and/or in Research & Development were held not having experience in Research & Development were held not having experience in manufacturing or testing of drugs. The MAT rendered its in manufacturing or testing of drugs. The MAT rendered its judgment on 1.4.2014. It, therefore, appears the MPSC in its judgment on 1.4.2014.
* 9/11 * for want of requisite experience.
for want of requisite experience.
It may be stated that the judgment and order of the It may be stated that the judgment and order of the MAT dated 1.4.2014 in Original Application No.820 of 2013 MAT dated 1.4.2014 in Original Application No.820 of 2013 was challenged in Writ Petition No.6637 of 2014. was challenged in Writ Petition No.6637 of 2014. We have perused the judgment of MAT and the We have perused the judgment of MAT and the judgment of Division Bench of this Court in the Writ Petition judgment of Division Bench of this Court in the Writ Petition No.6637 of 2014, wherein it is held, "that to deny an No.
6637 of 2014, wherein it is held, "that to deny an opportunity to the candidate who does possess a research opportunity to the candidate who does possess a research experience in synthesis and testing of drugs on the ground experience in synthesis and testing of drugs on the ground that such research experience in synthesis and testing of that such research experience in synthesis and testing of drugs cannot be linked with manufacturing, would be perverse drugs cannot be linked with manufacturing, would be perverse interpretation." It is further held that when a candidate interpretation."
It is further held that when a candidate having research experience needs to be preferred in view of having research experience needs to be preferred in view of proviso and he cannot be denied opportunity by proviso and he cannot be denied opportunity by misinterpreting Sub-rule ( ii ) of Rule 4(B)(b) in isolation. It is misinterpreting Sub-rule ( ii ) of Rule 4(B)(b) in isolation. It is further held, that it must be understood that the research further held, that it must be understood that the research work carried out in well reputed laboratories is for the work carried out in well reputed laboratories is for the purpose of manufacturing drugs. In paragraph 11 of the said purpose of manufacturing drugs.
* 10/11 * research laboratories being not within contemplation of Rules research laboratories being not within contemplation of Rules is devoid of merit and the said finding does not deserve to be is devoid of merit and the said finding does not deserve to be upheld.
upheld.
In the case in hand, the MPSC vide communication In the case in hand, the MPSC vide communication dated 2.6.2016 eliminated petitioners from process of dated 2.6.2016 eliminated petitioners from process of selection on the ground that their experience in research selection on the ground that their experience in research laboratories cannot be treated as relevant experience. More laboratories cannot be treated as relevant experience. More so, in the affidavit-in-reply and in particular paragraph 23 so, in the affidavit-in-reply and in particular paragraph 23 thereof, the MPSC reiterated its stand by making reference to thereof, the MPSC reiterated its stand by making reference to the judgment of the MAT in Original Application No.820 of the judgment of the MAT in Original Application No.820 of 2013. The impugned communication is dated 2.6.
2016; 2013. The impugned communication is dated 2.6.2016; whereas judgment in the Original Application No.820 of 2013 whereas judgment in the Original Application No.820 of 2013 was quashed and set aside by this Court in Writ Petition was quashed and set aside by this Court in Writ Petition No.6637 of 2014 by the judgment and order dated 4.5.2017. No.6637 of 2014 by the judgment and order dated 4.5.2017. That as such finding recorded by MAT of which recourse was That as such finding recorded by MAT of which recourse was taken by MPSC to deny the petitioners' claim is no more taken by MPSC to deny the petitioners' claim is no more available since Division Bench of this Court set aside the available since Division Bench of this Court set aside the subject findings.
subject findings.
That considering the facts of the case and the law That considering the facts of the case and the law laid down in Writ Petition No.6637 of 2014, decision of the laid down in Writ Petition No.6637 of 2014, decision of the
* 11/11 * MPSC inter-alia holding petitioners ineligible for appointment MPSC inter-alia holding petitioners ineligible for appointment as 'Drug Inspectors' for want of requisite experience as as 'Drug Inspectors' for want of requisite experience as communicated on 2.6.2016 needs to be quashed and set aside, communicated on 2.6.2016 needs to be quashed and set aside, hence, the following order;
hence, the following order;
( i ) The impugned communication dated 2.6.2016 ( i ) The impugned communication dated 2.6.2016 issued by the MPSC whereby petitioners were held issued by the MPSC whereby petitioners were held ineligible for the post of 'Drug Inspectors' is hereby ineligible for the post of 'Drug Inspectors' is hereby quashed and set aside.
quashed and set aside.
(ii) The MPSC is directed to take a decision The MPSC is directed to take a decision afresh on the subject issue in view of law laid down afresh on the subject issue in view of law laid down in the judgment and order rendered in Writ in the judgment and order rendered in Writ Petition No.6637 of 2014 in the case of Petition No.6637 of 2014 in the case of Suhas S. Suhas S.
Lavhekar and Others v. MPSC & Others Lavhekar and Others v. MPSC & Others within two months from today and proceed with within two months from today and proceed with the subject selection process in accordance with the subject selection process in accordance with law.
law.
Writ petition is allowed only in the aforesaid terms Writ petition is allowed only in the aforesaid terms and the same is disposed of.
and the same is disposed of.
Rule is made absolute in the aforesaid terms. Rule is made absolute in the aforesaid terms. (SANDEEP K. SHINDE, J) (SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J) (SMT. V.K. TAHILRAMANI, J)