Krishan Kumar v. State Of Haryana And ANR



  
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"49. Qualifications of Inspectors. -A person who is appointed an Inspector under the Act shall be a person who has a degree in Pharmacy or Pharmaceutical Sciences or Medicine with specialisation in Clinical Pharmacology or Microbiology from a University established in India by law:

Provided that only those Inspectors:

(i) Who have not less than 18 months' experience in the manufacture of at least one of the substances specified in Schedule C, or (ii) Who have not less than 18 months' experience in testing of at least one of the substances in Schedule C in a laboratory approved for this purpose by the licensing authority, or (iii) Who have gained experiences of not less than three years in the inspection of firms manufacturing any of the substances specified in Schedule C during the tenure of their services as Drugs Inspectors;

shall be authorised to inspect the manufacture of the substances mentioned in Schedule C:

[Provided further that the requirement as to the academic qualification shall not apply to persons appointed as Inspectors on or before the 18th day of October, 1993." 
  


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Designation of post Academic qualifications and experience, if any, for direct recruitment Academic qualification and experience, if any, for appointment other than by direct recruitment 1 2 3 4 Deputy State Drugs Controller XXXXXXXXX Assistant State Drugs Controller XXXXXXXXX Senior Drugs Inspector XXXXXXXXX Drugs Inspector (a) Second Class Bachelor degree in Pharmacy or Pharmaceutical Chemistry.

(b) 11⁄2 years experience in manufacturing of at least one of the substances specified in Schedules C appended to the Drugs and Cosmetics Act, 1945 or 11⁄2 years experience in testing of at least one of the substances specified in said Schedules C in a laboratory approved for the purpose by the licensing authority or Three years experience in inspection of Firms manufacturing any of the substances specified in the said Schedule C.

(c) Adequate knowledge of Hindi.

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Designation Academic qualifications and experience, if any, for an appointment by direct recruitment Academic qualification and experience, if any, for an appointment by other than direct recruitment

11. Drugs Control Officer (a) Second Class Bachelor degree in Pharmacy By transfer/deputation:-

1. Two years experience as Drugs Control Officer;

or Pharmaceutical Chemistry;

2.

(a) Second Class Bachelor degree in Pharmacy (b) 11⁄2 years experience in manufacturing of at least one of the substances specified in Schedules C appended to the Drugs and Cosmetics Act, 1945;

or Pharmaceutical Chemistry;

or (b) 11⁄2 years experience in manufacturing of at least one of the substances specified in Schedules C appended to the Drugs and Cosmetics Act, 1945;

11⁄2 years experience in testing of at least one of the substances specified in said Schedules C in a laboratory approved for the purpose by the licensing authority;

or or 11⁄2 years experience in testing of at least one of the substances specified in said Schedules C in a laboratory approved for the purpose by the licensing authority;

Three years experience in inspection of Firms manufacturing any of the substances specified in the said Schedule C; and (c) Hindi or Sanskrit upto Matric or Higher Education or Three years experience in inspection of Firms manufacturing any of the substances specified in the said Schedule C; and

(3) Hindi or Sanskrit upto Matric or Higher Education A

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"309. Recruitment and conditions of service of persons serving the Union or a State.-Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate

Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act." 5/

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"12. A perusal of the above would show that the recruitment and conditions of service of the persons is first of all subject to the other provisions of the Constitution and the Acts of the appropriate Legislature which may regulate the recruitment and the conditions of service of the persons appointed to the public services. Proviso to Article 309 is only a temporary or stop-gap arrangement which is pressed into service or brought about to hold the field for a limited period i.e. until provision is made by or under an Act of the appropriate Legislature regulating the recruitment and the conditions of service of the persons.

In case of such an Act covering the field which was erstwhile being occupied by the rules framed under proviso to Article 309, the said Act of the appropriate legislature would come into effect from the date of its enforcement and the rules framed under proviso to Article 309 will have to give way to the statutory provisions wherever found inconsistent to the statutory provisions of the Act and the regulations/rules framed thereunder. It can be said that life of the Rules framed under the proviso to Article 309 is limited and govern the service conditions of the employees till the relevant statutory provisions of the Act and/or the Rules or Regulations framed thereunder come into force.

civil servants having a limited life span until the appropriate Legislature legislates on the subject. This is apparent from the language of the Article where the power to make provisions for regulating the services is left to the Legislature. Proviso to this Article thus, operates to fill the vacuum until appropriate legislation comes into force. Once any Act made by the appropriate Legislature, which is relatable to Article 309 comes into force, the Rules made under proviso to this Article must and would give way. The source of power which flows from the proviso to make Rules dries up the moment appropriate legislation covering the scope and ambit of the Rules so framed under Article 309 becomes operational. It requires to be pointed out here that the Rule making power under Article 309 cannot be exercised if the Legislature has already made a law occupying the field. If there is a conflict between the Rules framed under Article 309 and the law made by the Legislature, the law made by the Legislature will prevail."

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ARUN MONGA, J.

1.

I have had the privilege of reading the judgment authored by my Learned Brother Augustine George Masih, J. as also agreed to by learned brother Sandeep Moudgil, J. I too though concur with operative part of the judgment for allowing the bunch of writ petitions and LPA No. 700 of 2020, but would respectfully wish to add my own independent reasons in support thereof. 2.

Reference before us requires adjudication of the questions substantially in the light of Rule 49 of the Drugs & Cosmetics Rules, 1945 ( for short the 1945 Rules), framed under Section 33 of the Drugs & Cosmetics Act,1940 ( for short the 1940 Act) vis-à-vis Section 103 of Government of India Act, 1935, later retained as Article 372 and read with Articles 252/254 and 309 of the Constitution of India.

3.

Succinctly, what has been held by my learned brothers is that since 1940 Act and the 1945 Rules framed thereunder continue to operate till date and the competent State legislature having not exercised its powers as envisaged under Article 372, to amend or repeal the 1940 Act and the 1945 Rules, the State Government, at present, is not empowered to frame any rules and/or any parallel or collateral rules qua the matters provided for in the 1940 Act and the 1945 Rules, as it lacks such power, the same being in the exclusive domain of Parliament/Central Government as per Section 33 of the Act ibid. That apart, once the Central Government invoked its powers under Section 33 to frame the rules on the subject matter, it is no more a field unoccupied and thus, Article 309 of the Constitution of India cannot be invoked to exercise powers of the State Legislature in an occupied field.

4.

Having already got the benefit of what has been expressed eruditely by my Learned Brother Masih J., I shall now proceed in my endeavour.

5.

Division bench reference order dated 25.08.2021 has arisen in a writ petition, bearing CWP No. 15067 of 2020 (for brevity, recitals herein are all therefrom), seeking quashing of the advertisement date 07.09.2015 (P-1); further quashing entry at S. No. 11 under Rule 7 of the Haryana Food and Drugs Administration Department Subordinate Offices (Group B) Service Rules, 2018 and the advertisement dated 07.07.2020 (P-7), and also for quashing letter dated 07.07.2020 whereby the petitioner's candidature has been rejected saying that he does not fulfill the condition of required experience, the same being contrary to Rule 49 of the Drugs and Cosmetics Rules, 1945.Initially, the Full Bench was constituted to answer the reference made by the Division Bench but subsequently CWP No.15067 of 2020 alongwith other bunch of similar writ petitions and LPA No.700 of 2020 were all placed before the Full Bench for final disposal thereof.

6.

Before proceeding further, it is pertinent to note that the qualifications for recruitment of Inspectors have been prescribed in The Drugs & Cosmetics Rules, 1945 and not in The Drugs & Cosmetics Act, 1940(for short -the Act). Section 21 the Act only states that the Central Government or the State Government may appoint such persons, as it thinks fit having the prescribed qualifications, to be Inspectors for such areas as may be assigned to them by the Central Government or the State Government, as the case may be. This being the position, it appears that what the State Government had in mind was the mandate of section 21 ibid, while

framing Rule 7 and entry at serial No. 11 of Schedule B of the Haryana Food &Drugs Administration Department Subordinate Offices (Group B) Services Rules, 2018 (for short 2018 Service Rules).

7.

In the Drugs and Cosmetics Rules, 1945 (for short -Central Rules), the experience is contained in the proviso to the Rule, whereas, in the impugned Haryana Food and Drugs Administration Department Subordinate Offices (Group B) Service Rules, 2018(the State Rules), framed by the State under Article 309 of the Constitution, the experience has been made as an essential qualification. 8.

The very genesis of controversy is the advertisement dated 07.09.2015 originally published in respect of 4 posts of Drug Control Officers (earlier known as Inspectors until amendment) read with corrigendum dated 04.06.2019, increasing the total number of posts to 26. Relevant extract of the advertisement is as below:- "Advt.No.2 Date of Publication: 10.09.2015 The Commission invites online applications for recruitment to 4 posts of Drug Control Officer in Health Department, Haryana. The break-up of posts is as under:- Name of Post No. of Posts Gen SC of Hry.

BC(A) of Hry.

Drug Control Officer in Health Department, Haryana.

x-x-x-x-x-x-x-x-x-x Essential Qualifications:- i. Second Class Bachelor degree in Pharmacy. OR Pharmaceutical Chemistry.

ii. One and half years experience in manufacturing of at least one of the substances specified in Schedule C appended to the Drugs and Cosmetic Rules1945. OR One and half years experience in testing of at least

one of the substances specified in the said Schedule C in a laboratory approved for the purpose by the licensing authority OR Three year experience in inspection of Firms manufacturing any of the substances specified in the said Schedule C iii. Adequate knowledge of Hindi/Sanskrit.

iv. Note:-Experience prescribed as essential qualification shall be reckoned from the date after obtaining the prescribed minimum academic qualifications.

xxxxxxxxxxxx

6. Duties:- To act as Drug Control Officer under the Drugs and Cosmetics Act & Rules and to discharge any other duty which may assigned anywhere within or outside the State of Haryana.

xxxxxxxxxxxx"

9.

Perusal of the advertisement above mentioned shows that the Drug Control Officers to be recruited against the advertised posts are to perform duties as may be prescribed by the competent authority. 10.

In this regard, office memo dated 08.09.2009 issued by the competent authority i.e. the Principal Secretary to Government of Haryana, Health Department to the Director General, Health Services, Haryana is of certain significance and for ready reference is being reproduced herein below:-

1. "Sub: Distribution of work of Drugs Control Officers and Senior Drugs Control Officers. a. Reference your U.O. No. nil, dated 17.07.2009 on the subject noted above.

2. In exercise of powers conferred under Rule 60 of Drugs & Cosmetic Rule, 1945, Government grants permission to delegate powers by State Drugs Controller, Haryana to Senior Drugs Control Officers and Drugs Control Officers in the State as under:- 1.

Senior Drugs Control Officers:

Issuing of retailer and wholesaler licenses and renewal of such licenses in addition to their own duties.

2.Drugs To conduct inspection of

Control Officers:

Drugs Manufacturing Units in their respective district in addition to their present duties. "

The competent authority thus has exercised its power under Rule 60 of Drugs and Cosmetics Rule, 1945 to delegate the powers of inspection (supra) to Drug control Officers.

11.

The duties/powers of an Inspector to perform/conduct inspection of the Drugs Manufacturing Units are covered under Rules 51 & 52 of the 1945 Central Rules. Same are as under:- "51. Duties of Inspectors of premises licensed for sale.-Subject to the instructions of the controlling authority, it shall be the duty of an Inspector authorized to inspect premises licensed for the sale of drugs-

(1) to inspect [not less than once a year] all establishments licensed for the sale of drugs within the area assigned to him;

(2) to satisfy himself that the conditions of the licences are being observed;

(3) to procure and send for test or analysis, if necessary, imported packages which he has reason to suspect contain drugs being sold or stocked or exhibited for sale in contravention of the provisions of the Act or rules thereunder;

(4) to investigate any complaint in writing which may be made to him;

(5) to institute prosecutions in respect of breaches of the Act and rules thereunder;

(6) to maintain a record of all inspections made and action taken by him in the performance of his duties, including the taking of samples and the seizure of stocks, and to submit copies of such record to the controlling authority;

(7) to make such enquiries and inspections as may be necessary to detect the sale of drugs in contravention of the Act;

(8) when so authorized by the State Government, to detain imported packages which he has

reason to suspect contain drugs, the import of which is prohibited.

52. Duties of inspectors specially authorised to inspect the manufacture of 1[drugs or cosmetics].- Subject to the instructions of the controlling authority it shall be the duty of an Inspector authorized to inspect the manufacture of drugs-

(1) to inspect 2[not less than once a year], all premises licensed for manufacture of 1[drugs or cosmetics] within the area allotted to him to satisfy himself that the conditions of the licence and provisions of the Act and Rules thereunder are being observed;

(2) in the case of establishments licensed to manufacture products specified in Schedules C and C (1) to inspect the plant and the process of manufacture, the means employed for standardizing and testing the drug, the methods and place of storage, the technical qualifications of the staff employed and all details of location, construction and administration of the establishment likely to affect the potency or purity of the product;

(3) to send forthwith to the controlling authority after each inspection a detailed report indicating the conditions of the licence and provisions of the Act and rules thereunder which are being observed and the conditions and provisions, if any, which are not being observed;

(4) to take samples of the drugs manufactured on the premises and send them for test or analysis in accordance with these Rules;

(5) to institute prosecutions in respect of breaches of the Act and rules thereunder."

12.

Rules 51 and 52 (supra) show that it shall be the duty of the Inspector, inter alia, in the case of establishments licensed to manufacture products specified in Schedules C and C (1) to inspect the plant and the process of manufacture, the means employed for standardizing and testing the drug, the methods and place of storage, the technical qualifications of the staff employed and all details of

location, construction and administration of the establishment likely to affect the potency or purity of the product and to take appropriate further steps/action. The first proviso below Rule 49 mandates that only those Inspectors who possess the experience as specified therein shall be authorized to inspect the manufacture of the substances mentioned in Schedule C. There is no quibble about the same. But the question here arises whether the experience as specified in the first proviso below Rule 49 can be made as a pre-recruitment eligibility condition under Rules 51 & 52 as against post-recruitment experience envisaged in Rule 49 which precedes Rules 51 & 52. 13.

Before adverting further, it would be pertinent to note that all the learned counsel are ad idem that the subject matter of Drugs and Cosmetics falls within the purview of List III (referred to as the Concurrent List) in VIIth schedule of the Constitution. Vide clause

(2) of Article 246 of the Constitution, the Parliament and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in the said List. The matter of drugs and poisons appears at entry No. 19 of List IIIConcurrent List of the Constitution. Being so, one would have to necessarily look into whether State Legislature has the competence to enact, repeal and/or amend any part of the Central Rules, 1945 under the Drugs and Cosmetics Act- 1940 qua the subject matter already covered thereunder. Applicability or otherwise of theory of eclipse would assume significance in that context. 14.

In that sense, Article 252 of the Constitution of India is also significant. No doubt, Article 252 applies in a situation where the subject matter is though exclusively in the State List, but two or more States may by passing a resolution empower the Centre to

make any enactment qua the State List. In such a scenario, State shall subsequently be governed by theory of eclipse, in view of SubArticle (2) of Article 252, which clearly takes away the power of State Legislature otherwise vested in it, in view of its own act of empowering the Centre. It is a voluntary eclipsing of power by the State, what is otherwise its constitutional privilege as per State List. Whether the logic and theory of eclipse shall apply to a subject matter falling in concurrent list or not, we shall have to analyze that too.

15.

For ready reference, Article 252 of the Constitution of India is as below:- "252. Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State

(1) If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in Articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the House of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State

(2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State."

16.

As regards right to amend Central Act of 1940, applying the same analogy of Article 252(2) i.e. if a State by resolving so, loses its constitutional privilege in favour of Centre on a subject matter which is exclusively on "State list", I see no reason how can the same privilege be assumed to be still retained by the State qua a Central Act on concurrent list, where the Centre has concurrent and, read

with Article 254, an overriding jurisdiction. Especially, once the State has itself resolved to surrender its privilege in favour of the Centre. Therefore, State has no power to amend the Central Act in the present case, unless its legislative Assembly rescinds the resolution passed in favour of Centre.

17.

It is in the context of eclipsing its own power to make rules under the 1940 Act and to avoid treading in the Central domain, that the States have from time to time invoked powers under Article 309 of the Constitution of India to make rules regulating the recruitment and conditions of service of its employees, in this case for the Drug Inspectors/Drug Control Officers. Illustratively, reference may be had to The Punjab Health Department (State Service, Class III, Drug Inspectors) Rules, 1965 ; The Uttar Pradesh Inspectors of Drugs Service Rules, 1980; Central Drugs Standard Control organization (Drug Inspectors) Recruitment Rules, 1990; Central Drugs Standard Control organization (Drug Inspectors) Recruitment Rules, 2010.

As recent as Central Drugs Standard Control organization (Drug Inspectors) Recruitment DRAFT Rules, 2020 were also notified by Centre for inviting objections, but it appears due to intervening covid pandemic, the same have not been finalized. From this, it does seem that qua the subject in the concurrent list, even if the State has resolved to surrender its power of legislation to the Centre, still it has the power to legislate for regulating the recruitment and conditions of services of the Drug Inspectors/Drug Control Officers in connection with the affairs of the State provided the State legislation is not repugnant to the Central legislation.

18.

In the aforesaid background, theory of repugnancy as mandated under Article 254 of the Constitution of India assumes even greater importance. Article 254 is as below:- " 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States

(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."

19.

The subject of drugs and poisons being at entry No. 19 in the Concurrent List of VIIth Schedule of the Constitution, the power to legislate is vested both with the Centre as well as the State. 20.

Article 254 of the Constitution provides that if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by

the Legislature of the State shall, to the extent of the repugnancy, be void. Indisputably, clause (2) of the Article ibid is not attracted in this case.

21.

Therefore, even though Centre has already exercised its power to make Rules under the enabling provision of Section 33 of Act, yet I am of the opinion that the State Government also has the power under Article 309 of the Constitution of India to make rules regulating the recruitment and conditions of service of Drug Inspectors/Drug Control Officers appointed in connection with the affairs of the State including prescription of qualifications but the parallel rules made by State ought not to be in conflict with the provisions made in the Central Rules.

22.

According to Black's Law Dictionary, repugnancy means an inconsistency or contradiction between two or more parts of a legal instrument (such as a contract or statute).

23.

In order to test the applicability of rule of repugnancy, what is required to be seen is in the event of State legislature having exercised its power in the domain of Concurrent List where Central legislation also pre-exists, the obedience of State statute must not result in the disobedience of the Central statute/Rule. In other words, the right created by the Central statute/Rule should not in any manner be abridged by the State statute/Rule. 24.

Rule 49 as already reproduced in the main judgment may be also seen at this stage.

25.

Preamble of the 1940 Act shows that it was enacted to regulate the import, manufacture, distribution and sale of drugs and cosmetics. 26.

Under Rule 49 of the Central Rules, a person who is appointed an Inspector under the Act shall be a person who has a degree in

Pharmacy or Pharmaceutical Sciences or Medicine with specialization in Clinical Pharmacology or Microbiology from a University established in India by law: Provided that only those Inspectors -(i) who have not less than 18 months experience in the manufacture of at least one of the substances specified in Schedule C, or (ii) who have not less than 18 months experience in the testing of at least one of the substances in Schedule C in a laboratory approved for this purpose by the licensing authority, or (iii) who have gained experience of not less than three years in the inspection of firm manufacturing any of the substances specified in Schedule C during the tenure of their services as Drug Inspectors; shall be authorized to inspect the manufacture of substances in Schedule C.

As against this, under Rules 51-52 of the said Rules, from day one, it shall be the duty of an Inspector to inspect the manufacture of drugs or cosmetics including the manufacture of the substances mentioned in Schedule C and take the required steps/action as mentioned therein.

In the absence of prescription of requisite experience of not less than 18 months in the manufacture or testing of at least one of the substances specified in Schedule C, persons not having such experience if appointed as Inspectors, will not be authorized/competent to inspect the manufacture of the substances mentioned in Schedule C and take the required steps/action until they have gained experience of not less than three years in the inspection of firms manufacturing any of the substances specified in Schedule C during the tenure of their services as Drug Inspectors.

important part of their functions to inspect the manufacture of the substances mentioned in Schedule C.

27.

Thus, it seems to me that there is a gap between the content and intent of the Central Rules. Rule 49 does not prescribe the experience as an essential requirement for initial appointment as Inspector, but the intent obvious from an overall reading of the 1945 Rules seems that from day one the duties of the Inspectors are, inter alia, to inspect the manufacture of substances mentioned in Schedule C and to take steps/action in terms of Rule 52 of the 1945 Rules. This lacuna leaves scope for consequences against the overall object, purposes and spirit of the Central Rules i.e. duty/power of the Inspector from day one, inter alia, to inspect the manufacture of substances mentioned in Schedule C. 28.

Let us now see whether the action of the State Government in enacting the 2018 Service Rules has resulted in any repugnancy qua Central rules.

29.

As against the Central Rules, vide entry at serial No.11 of schedule B read with Rule 7 of the State Rules, the experience has been made an essential qualification for initial appointment. It was open to the State while prescribing the experience as an essential requirement, to specify thereunder that from initial appointment, from day one itself, a person appointed will be required, authorized and competent to inspect the manufacture of substances mentioned in Schedule C and take the required steps/action as prescribed. But that was not done by the State. Had it been so done, the provision thus made in the State Rules, in essence would have covered and taken care of the apparent gap/ lacuna in the Central Rules and would have been in aid of the Central Rules requiring

the Inspectors from day one to inspect the manufacture of substances mentioned in Schedule C , in terms of Rule 52 of the 1945 Rules by virtue of having pre recruitment work experience. It could be then said that the entry at serial No. 11 of schedule B read with Rule 7 of the State Rules, whereby the experience had been made an essential qualification for initial appointment, was in fact, in aid, advancement and promotion of the objects and purposes of the Central Act/Rules.

30.

A perusal of Central rules would reflect that they give a statutory right to the candidates who do not have any experience, to apply for the post of Drug Control Inspectors/Officers on the basis of their simply having gained the requisite academic qualification. Is that right in any manner diluted and/or abridged by the State Rules and/or does the obedience of State rules cause any disobedience to Central rules qua the said right, is the question?

31.

As noted, the Central rules give a statutory right to the candidates who do not have any experience, to apply for the post of Drug Control Inspectors/Officers on the basis of their simply having gained the requisite academic qualification. Against this, the State Rules prescribe the possession of requisite experience as an essential eligibility qualifications for post in question and thus debar the candidates, who do not possess the requisite experience from consideration for the post. In this way, the eligibility and right of consideration of such candidates, who do not possess the requisite experience, is denied/taken away by the State Rules and thus, the State Rules cause disobedience to Central rules. To that extent, the impugned State rule has, therefore, to be held repugnant to the Central Rules.

32.

Learned counsel for the petitioners heavily relied upon the full bench judgment in Kuldeep Singh vs. State of U.P.1 In that case, for direct recruitment of Drug Inspectors, the essential qualifications prescribed under the U.P. State Drug Control Gazetted Officers' Service Rules, 1995were a degree in Pharmacy or Pharmaceutical Sciences or Medicine with specialization in Clinical Pharmacology or Microbiology from a University established in India by law. To be noted, initially the vacancies were advertised with the same eligibility requirements. However, later on, the Uttar Pradesh Public Service Commission issued a corrigendum dated 09.07.

2010, on the directions of the State Government, and thereby stipulated as part of the essential qualifications required for the post, at least eighteen months' experience of testing of at least one of the substances mentioned in Schedule C to the Rules or at least eighteen months' experience in the manufacture of one of the substances specified in Schedule C or three years' experience in the inspection of firms manufacturing any of the substances specified in Schedule C licensed for the manufacture of drugs. It seems obvious from the Full Bench judgment that relevant UP State Rules did not prescribe the experience, as essential qualifications, as was mentioned in the corrigendum to the advertisement. 33.

Allahabad High Court Full Bench also noted that the Service Rules of 1995 in the State of Uttar Pradesh, in fact, were a clear recognition of the acceptance by the State of this position; Rule 8 of the Service Rules of 1995 adopted, as qualifications for direct recruitment to the post of Inspector of Drugs, those which have been prescribed in the rules made by the Central Government in 1 2014 SCCOnline ALL 5119

accordance with the provisions of Section 33 of the Drugs and Cosmetics Act, 1940; hence, the qualifications which are prescribed in Rule 49 of the Central Rules were incorporated for the recruitment of candidates as Drug Inspectors in the State service; Rule 21(1)(a) of the Service Rules of 1995 which speaks of the confirmation of a probationer, provided that a probationer shall be confirmed at the end of the period of probation or the extended period of probation if he has acquired 18 months' experience in testing of a Schedule C substance in an approved laboratory; or has acquired 18 months' experience in the manufacture of a Schedule C substance as specified in the Drugs and Cosmetics Rules, 1945; Rule 21 (1) (a) of the State Service Rules 1995 was a clear indicator of the position that the acquisition of experience in the testing or manufacture of a Schedule C substance of a period of 18 months can take place after the appointment of a person as an Inspector of Drugs but before an order of confirmation is issued under Rule 21; and that if, as the State had then asserted before the bench, experience was a condition of eligibility, there would be no occasion to provide for the acquisition of experience as a condition for confirmation of the services of a probationer.

On the contrary, Rule 21(1)(a) was indicative of the fact that a probationer may acquire the experience after appointment in service, but before an order of confirmation can be issued.

34.

Full Bench supra also held that it is always open to the legislature or its delegate to suitably amend a statutory provision or, as in the present case, subordinate legislation to make the holding of the requisite experience as a condition of eligibility or a qualification for appointment but, that would have to be by an amendment of the

subordinate legislation. In these circumstances, it was held by interpreting Rule 49 of the Central Rules that the experience referred to in the first proviso thereof had not been made an essential qualification for appointment as a Drug Inspector and that the effect of the first proviso is that only an Inspector who holds the experience as specified in it is authorized to inspect the manufacture of a substance specified in Schedule C to the Rules. 35.

Reference may, in particular, be had to para 17 of Full Bench judgment in Kuldeep Singh ibid. Speaking for the Bench, Dilip Gupta, J. inter alia expressed as below:- "17. The Service Rules of 1995 in the State of Uttar Pradesh, in fact, are a clear recognition of the acceptance by the State of this position. Rule 8 of the Service Rules of 1995 adopts, as qualifications for direct recruitment to the post of Inspector of Drugs, those which have been prescribed in the rules made by the Central Government in accordance with the provisions of Section 21 of the Drugs and Cosmetics Act, 1940. Hence, the qualifications which are prescribed in Rule 49 of the Central Rules are incorporated for the recruitment of candidates as Drug Inspectors in the state service.

experience in the manufacture of a Schedule C substance as specified in the Drugs and Cosmetics Rules, 1945. Rule 21 (1) (a) of the State Service Rules 1995 is a clear indicator of the position that the acquisition of experience in the testing or manufacture of a Schedule C substance of a period of 18 months can take place after the appointment of a person as an Inspector of Drugs but before an order of confirmation is issued under Rule 21. If, as the State now asserts, experience was a condition of eligibility, there would be no occasion to provide for the acquisition of experience as a condition for confirmation of the services of a probationer.

On the contrary, Rule 21(1)(a) is indicative of the fact that a probationer may acquire the experience after appointment in service but before an order of confirmation can be issued." 36.

Having perused the said Full Bench judgment, I am of the view that it is held therein that it is always open to the Legislature or its Delegate to suitably amend a statutory provision or, as in the present case subordinate legislation to make the holding of the requisite experience as a condition of eligibility or a qualification for appointment but, that would have to be by way of an amendment by the subordinate legislation. It was in this premise that Full Bench held, by interpreting Rule 49 of the Central Rules, that since the experience referred under the first proviso thereof has not been made an essential qualification for appointment as a Drug Inspector, the effect of the first proviso has to be necessarily that a serving Inspector who holds the requisite experience is competent to inspect the Manufacturing Units of the substances, as specified in Schedule 'C' to the Rules.

37.

In Kuldeep Singh supra, the advertisement was at variance with the relevant UP Rules. It is not so in the instant case. Here, the Haryana State Rules have been framed by the competent authority in exercise of the powers under Article 309 of the Constitution. Full Bench Judgment in Kuldeep Singh's case therefore, does not help the petitioners herein, being placed in the different facts and circumstances than in UP. If anything, the said judgment rather seems to support the respondents' stand that the State has the power to legislate to regulate the recruitment and conditions of service of its employees. In Union Public Service Commission Vs. Nidhi

Pandey and another2, Division Bench of Delhi High Court mainly relied upon the Full Bench judgment of Allahabad High Court in Kuldeep Singh supra. SLP against Nidhi Pandey judgment was dismissed in-limine vide an order dated 05.04.2021 passed by the Apex Court. I have since already opined that Full Bench judgment of Allahabad High Court does not help the petitioners herein, being placed in the different facts and circumstances than in UP. It follows , therefore, that the Division Bench judgment of Delhi High Court in Nidhi Pandey's case and the dismissal of SLP against it by the Apex Court also are of no help to the petitioners. 38.

Undisputedly, Article 309 of the Constitution of India empowers the State legislature, of course subject to the other provisions of Constitution, to regulate the recruitment and conditions of service of persons appointed or to be appointed to public services/posts in connection with the affairs of the State. In present case, the Drug Control Officers are required to be appointed to carry out their duties in connection with the affairs of the State under the administrative control of the competent authority-the department of Health and Family Welfare. It seems that power of the State under Article 309 of the Constitution to make rules regulating the recruitment and conditions of service of its employees, includes the power to prescribe qualifications and lay down certain other requirements for recruitment and conditions of service e.g.

minimum and maximum age, domicile, probation, confirmation, promotion etc. Central Rules are silent on such other requirements.

employees, is wider than the Centre's enabling power under Section 33 of the Act to make rules prescribing qualifications for Inspectors.

39.

Section 33 of the 1940 Act is an enabling provision for the Central Government to make rules for giving effect to the provisions of the Act , including the prescription of qualifications for Inspectors. It does not seem to altogether wipe out or wholly prohibit the exercise of the power by the State to make rules regulating the recruitment and conditions of service of its employees. If the State were to be wholly barred from making rules for recruitment and conditions of service of its employees, in this case the Inspectors, there would be a vacuum left qua such other requirements to be prescribed for recruitment and conditions of service e.g. minimum and maximum age, domicile, probation, confirmation, promotion etc. Taken to its extreme, it would mean that the State cannot recruit any inspector, which would be a situation of vacuum. Trite it is to say, law abhors vacuum.

40.

It would be unrealistic and defying logic to say that the field having been occupied by the 1945 Central Rules, the State cannot at all, in absolute terms, make Rules in exercise of its powers under Article 309 to frame rules regulating the recruitment and conditions of service of its employees. It seems to me that the State has the power under Article 309 to make rules for recruitment and conditions of service of its employees, including the prescription of qualifications. Of course, the effect of the Central legislation/Rules is, that such rules made by the State should not be in conflict with the Central legislation/Rules. I may attempt to explain it by a hypothetical illustration. Suppose, the State Rules had provided

exactly the same qualifications for Inspectors as in the Central Rules. Could it be said even then that the State Rules were bad in law, having been made in the field occupied by the Central Rules? The obvious answer would be 'no'.

41.

Here the State Rules, as framed, seem to be an attempt to cover the gap between the content and intent of the Central Rules. Woefully, even that attempt too is not successful, inasmuch as, the State Rules do not prescribe that from initial appointment, the Inspectors from day one will be required inter alia to inspect the manufacture of substances in Schedule C of the Central legislation. 42.

It would not be out of place to state that Rule 49 of Central Rules prescribes the requirements for eligibility/competency of certain set of Inspectors to perform their duties under Rule 51ibid. In my opinion, Rules 49, 51 & 52 have to be read together and obedience of all has to be ensured and any rule framed by the State, to the extent of its conflict with the Central Rules will have to necessarily make way for the latter.

43.

Speaking of position in law, I am thus of the view that the State Government could exercise and has exercised its power under Article 309 of the Constitution of India to frame rules regulating the recruitment and conditions of service of Drug Inspectors/Drug Control Officers. In fact, similar exercise has also been carried out by other States viz. Uttar Pradesh Government, Punjab and Maharashtra Government and even the Central Government to frame independent rules of recruitment which includes prescription of qualifications.

44.

It has been contended by Sh. B.R. Mahajan, the learned Advocate General that the test of the occupied field has to be seen from the

kaleidoscope of competent authority exercising its power of making general rules or the special rules. It is pointed out that there is an apparent gap between the content and intent of the Central Rules, in so far Rule 49 does not prescribe the experience as an essential requirement for initial appointment as Inspector, but the intent obvious from an overall reading of the 1945 Rules seems that from day one the duties of the Inspectors are, inter alia, to inspect the manufacture of substances mentioned in Schedule C in terms of Rule 52 of the 1945 Rules.

That apart, the general rules of 1945 framed by Centre essentially regulate the standard and quality of drugs as against the special rules framed by the State Government under Article 309 of the Constitution of India governing the process of recruitment including prescription of qualifications. He would vehemently submit that, even otherwise, once special rules are enacted by the State in exercise of its powers under Article 309 of the Constitution of India then the same override the general 1945 rules framed by the Central Government.

45.

In the premise, it is thus contended on behalf of the State, that its Rules being special in nature should override the Central Rules (termed as general in nature), to the extent of inconsistency inter se. However, I am unable to accept this contention. There is indeed a conflict inter se the Central legislation and the State legislation on concurrent list subject, but in view of the mandate of Article 254 of the Constitution of India, the Central legislation must prevail. The proposition as canvassed by learned Advocate General would be applicable, in a case where the state legislature enacts special and general rules on the same subject matter and there is some conflict inter se. As already observed above, the eligibility and right of

consideration of such candidates, who do not possess the requisite experience, provided for under the Central Rules, is denied/taken away by the State Rules and thus, the State Rules cause disobedience to Central rules. To that extent, the impugned State rule has, therefore, to be held repugnant to the Central Rules and has to give way to the Central Rules.

46.

Sh. Govind Goel, learned counsel appearing for the private respondents (selected candidates) vehemently argued that there is no inconsistency since the very purpose of the current recruitment is that the duties assigned to the current Inspectors from day one would include inspection of the Drugs Manufacturing Units. I am afraid, I am able to persuade myself to accept his contention. 47.

A perusal of the advertisement would reflect that it is nowhere stated therein that the recruitment is for a special class of Inspectors/Officers, who shall be required from day one to perform the duties, inter alia, to inspect the manufacture of substances mentioned in Schedule C and, take steps/action in terms of Rule 52 of the 1945 Rules and, therefore, instead of post-recruitment essential experience, as envisaged under Rule 45 of the Centre rules, under the impugned rule, the requirement of experience was being made mandatory as a pre-recruitment eligibility condition. The advertisement in question also rightly does not envisage any such things. The reason is not far to seek. The advertisement has to be inconsonance with the rules of recruitment framed by the State Government.

48.

Qua the argument on theory of eclipse, in the light of Section 103 of 1935 Act read with Article 372 of the Constitution of India, I am of the opinion that in view of the State Assembly resolution

empowering the Centre to legislate on the subject by way of enacting Drugs and Cosmetics Act, 1940 and to make rules thereunder, the State Legislature, having once clipped its own wings, can-not fly in a sky which is now in the Centre's domain. State is thus precluded to frame any rules under Section 33 of the Act ibid in view of Article 252 (2) of constitution of India. Had the State chosen to rescind/amend the Assembly resolution empowering the Centre to make Rules under the Act and then proceeded itself to make its own Rules under the Act on the subject matter then it would have been an altogether different scenario.

49.

However, such eclipse of the State's powers under Section 33 of the 1940 Act would not take away or negate its power under Article 309 of the Constitution of India to make Rules regulating the recruitment and conditions of service of Drug Inspectors/Drug Control Officers recruited in connection with the affairs of the State.

50.

In M/s R.M.D.C. Mysore vs. State of Mysore3 , relied upon by the learned counsel for the petitioner, it was noted that the subject of betting and gambling given in entry 34 of List II and the taxes on betting and gambling as given in entry 62 of List II were to be read as separate powers and, therefore, when control and regulation of prize competitions was surrendered to Parliament by resolutions of the State Legislature, the power to tax under entry 62 of List II, which is a separate head, cannot be said to have been surrendered. It is not the case of the petitioners herein that the State Legislature had passed any resolution for the surrender of its Constitutional power under Article 309 of the Constitution of India, to regulate the 3 1962 AIR (SC) 594

recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State. It cannot, therefore, be said that the State has abdicated or lost its Constitutional power of legislation in this behalf or that such power is exclusively vested in the Central Government. The judgment ibid does not, therefore, help the petitioners. 51.

Learned Advocate General would also emphatically argue that essential qualifications for appointment to post are for the employer to decide and, the employer can and may prescribe additional requirements to augment the essential, including giving preference for work experience.

52.

In A.P.J. Abdul Kalam Technological University vs. Jai Bharath College of Management & Engg. Technology4, Supreme Court has held that while it is not open to the Universities to dilute the norms and standards prescribed by AICTE (All India Council of Technical Education), it is always open to the Universities to prescribe enhanced norms. An earlier judgment rendered in R. Chitralekha vs. State of Mysore5 was in turn relied upon, wherein a Constitution Bench of Supreme Court had enunciated that the question regarding the impact of Entry 66 of List-I on Entry25 of List-III must be determined by a reading of the Central Act and the State Act conjointly and, thus held that a State Law providing for such standards, having regard to Entry 66 of List-I, would be struck down as unconstitutional, only if, the same is found to be so heavy or devastating, as to wipe out or appreciably abridge the Central field, and not otherwise. It was also held that when a State Act is in aid of the Parliamentary Act, the same would not entrench upon the latter. 4 (2021) 2 SCC 564 5 AIR 1964 SC 1823

If a State law prescribes higher percentage of marks for extracurricular activities in the matter of admissions to colleges, it cannot be thus said that it would be encroaching on the field covered by Entry 66 of List-I and held that when a State Act is in aid of the Parliamentary Act, the same would not entrench upon the latter. 53.

No doubt, the Central Act and the Central Rules here also do not prohibit the competent authority- expressly or impliedly - against prescribing the additional requirement of experience as an essential condition for initial appointment of the Inspectors over and above the qualifications prescribed in the Central Rules. However, in my opinion any such prescription has to be within the constitutional framework. In case of conflict between State and Central legislation/Rules, on the particular subject in concurrent list, the mandate of Article 254 comes into play and the State Rule has to give way to the Central Rule to the extent of conflict therewith. 54.

To sum up the broad principles, I may succinctly put the same as below :-

1. Article 309 of the Constitution empowers the State Legislature/Government, of course, subject to the provisions of Constitution to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the state.

2. This Constitutional power of the State government under Article 309 is wider than the Statutory power of Parliament/ Central Government under section 33 of the Drugs and Cosmetics Act, read with 1945 Rules, which

only prescribe the qualifications for appointment of drug inspectors.

3. Power of the Parliament Central government, limited to the prescription of qualifications for appointment of drug inspectors, does not exclude the powers of the State government to regulate the other requirements of the recruitment and conditions of service e.g. minimum and maximum age, domicile, probation, confirmation, promotion etc. Otherwise, there would be vacuum left for regulating other requirements for their recruitment and conditions of service. Central Rules are silent on these things. If the State too were to be wholly barred from making such rules for recruitment and conditions of service of its employees, thentaken to its extreme, it would mean that the State cannot recruit any inspector.

4. It cannot, therefore, be said that the field is wholly occupied by Central Act/Rules or that State Legislature/Government is totally prohibited from entering into the partially unoccupied area.

5. On a subject in the concurrent list, the state legislature can further advance the purpose and object of the Central Act/Rules, by supplementing the eligibility conditions and adding the requirement of experience for appointment. Of course the effect of the Central legislation/Rules is that State rules should not be in conflict with the Central legislation/Rules.

6. The provisions of Constitution of India, Central Act and Rules there under and the State Rules need to be

harmoniously construed. In the event of conflict, Constitutional provision flowed by Central Act/Rules and then State Act/Rules shall prevail in that order.

7. Here the State Rules, as framed, seem an attempt to cover the gap between the content and intent of the Central Rules. Despondently, even that attempt too is not successful, in as much as, the State Rules do not prescribe that from the very initial appointment, the Inspectors will be required inter alia to inspect the manufacture of substances in Schedule C of the Central legislation from day one itself.

55.

Resultantly, as an upshot of the above discussion, I am of the opinion that the impugned part of State Rules framed by the State under Article 309 of the Constitution governing recruitment of Drug Inspectors (re-designated as Drug Control Officer), to the extent and, in the manner, in which it prescribes the condition of experience as an essential requirement of eligibility for initial appointment is indeed repugnant to the Central rules. In other words, I do find that the same would indeed, either heavily or devastatingly, wipe out the Central Rules. Thus the impugned part of State Rules is held to be in conflict with the former. It is also held that the impugned part of Rules as framed by the State under Article 309 of the Constitution is not in aid of the Central Rules, prescribing the eligibility conditions for initial recruitment of Drug Inspectors/ Drug Control Officers.

56.

Having recorded my limited dissenting opinion for the reasons as stated above, I respectfully answer the reference by the Division Bench as below:-

REFERENCE ANSWER A.

Though Section 21 of 1940 Act clearly lays down that appointment shall be made as per the qualifications prescribed, which would normally indicate the qualifications prescribed in Central statute, but State Government invoked Article of the Constitution of India and prescribed qualifications different from that prescribed by the Central Government. Undisputedly, the matter falls in the realm of List III, the State Government never choose to enact its legislation. Merely, for the purpose of laying down qualification, it invoked Article 309 of the Constitution of India. In such circumstances, it needs to be examined as under:- i.

Whether invocation of such powers would be sustainable in law?

ii.

Whether it would be hit by doctrine of eclipse?

iii. Whether notification needs to be examined in light of provisions of Article 252 and 254 of Constitution of India?

(i) The State Government, in exercise of its powers under Article 309 of the Constitution framed Rule 7 and entry at serial No. 11 of Schedule B of the Haryana Food & Drugs Administration Department Subordinate Offices (Group B) Services Rules, 2018 ( for short 2018 Service Rules). By doing so, it did not act beyond the statutory provisions contained in the Drugs and Cosmetics Act, 1940.The first part of question No.1 framed above is answered accordingly.

The State Government could in exercise of its powers under Article 309 of the Constitution India frame Rules prescribing the qualifications for appointment of Drug Inspectors/Drug Control Officers, even in the field already occupied by the Central Rules so long as the State Rules were/are not conflict with the Central Rules. The second part of question No. 1 is answered accordingly.

(ii) The experience as contained in the first proviso to Rule 49 of the Central Rules could/can be made an essential qualification by the State framing the Rules under Article 309 of the Constitution of India, provided it was specified in the State Rules that from day one the duties of the persons appointed shall include, inter alia, to inspect the manufacture of substances mentioned in Schedule C and take steps/action in terms of Rule 52 of the 1945 Rules. Question No. (2) is answered accordingly.

(iii) The impugned part of Rules framed by the State to the extent and in the manner in which it prescribes the condition of experience as an essential requirement of eligibility for initial appointment of Drug Inspector is indeed repugnant to the Central rules and does not have over riding effect over the Central Rules.

B.

Whether State Government could have acted beyond the statutory provisions contained in the Central Act i.e. Sections 21 and 33 of the Act and Rules framed thereunder, prescribing qualifications and invoking Article 309 for this purpose.

Constitutional power under 309 to regulate recruitment and conditions of service, including prescription of qualifications, can be exercised by State but inconformity with Article 254.

C.

Whether the Rules framed by the State under Article 309 of the Constitution would have overriding effect over the rules framed under Central statute, the primary legislation governing the recruitment of Drug Inspectors.

Central Rules shall prevail over those of State, in the event of any conflict.

57.

In the ultimate analysis, however, I concur with the operative part and direction in the judgment authored by my learned brother Augustine George Masih, J. and agreed to by my learned brother Sandeep Moudgil, J. for setting aside the impugned advertisement and selection made pursuant thereto.

58.

Before parting, it needs mention that the impugned advertisement was issued on 07.09.015; selection was finalized in 2020; but the appointments of the selected candidates remained stayed by virtue of interim orders of this Court and the advertisement and the selections are being quashed now in year 2022. In the meantime, a considerable number of qualified candidates, who were eligible at the relevant time, would/may have become overage. In fairness to them, the official respondents are expected to give an appropriate relaxation of upper age limit in the fresh selection to such candidates.

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