Recently, the Allahabad High Court at Lucknow has decided an important question of law concerning the interplay of power of State Government under Article 309 of the Constitution and Power of Central Government under the Central Legislation on the same issue.
U.P. Pubic Service Commission issued an Advertisement on 10-08-2016 for direct recruitment to the posts of Drug Inspector under Food Safety and Drug Administration Department, U.P. wherein essential qualifications were prescribed a degree in Pharmacy or Pharmaceutical Sciences or Medicine with specialization in Clinical Pharmacology or Microbiology from a recognized University as “qualification no.-i” and further “experience” in various fields (manufacturing & testing of at least one of the substances specified in Schedule C to the Drug and Cosmetics Rules, 1945 and inspection of firms manufacturing such substances) were also added as “qualification no.-ii” in the said advertisement.
The petitioners challenged the advertisement and process of selection on the ground that the advertisement made by the Commission does not stand in conformity with the essential qualifications for appointment on the post of Drug Inspector as prescribed under Rule- 49 of the Drugs and Cosmetics Rules, 1945.
Submissions of the Petitioner:
Advocate Vineet Kumar Pandey, counsel for the Petitioner submitted that the Central Government, in exercise of the powers vested by virtue of Section 33 read with Section 21 of the Drugs and Cosmetics Act, 1940, had promulgated the statutory rules in the year 1945 known as Drugs and Cosmetics Rules, 1945 whereunder the Rule-49 prescribed the essential qualification for appointment on the post of Drug Inspector i.e. “a degree in Pharmacy or Pharmaceutical Sciences or Medicine with specialization in Clinical Pharmacology or Microbiology from a University established in India by law” whereas in the impugned advertisement dated 10-08-2016, the additional essential qualification of experience (qualification no.-ii) have been added in conflict with the provisions of Rule 49 of Drugs and Cosmetics Rules, 1945 and these statutory rules have never been amended by the Central Government and therefore the advertisement made by the Commission does not stand in conformity with the essential qualifications prescribed under Rule 49 of the Drugs and Cosmetics Rules, 1945 as such the same is liable to be set aside alongwith the process of selection notified by a letter dated 24-12-2020.
It was further submitted on behalf of the petitioners that the controversy in the present case had already been settled by the Full Bench of Hon’ble Allahabad High Court in the case of “Kuldeep Singh and others Vs. State of U.P. and another, Civil Misc. Writ Petition No.-46079 of 2010” decided on 10 April, 2014, wherein the Court held that the power under Article 309 of the Constitution is transitory and the rules made thereunder cannot be interpreted so as to have conflicting impact on primary legislation made by the Central Government for the objects of Section 33 read with Section-21 of the Drugs and Cosmetics Act, 1940.
Submissions of the Opposite Parties
Opposing the Writ Petition, the Counsel for the Government and the commission pleaded that the State Government as well as U.P. Public Service Commission in exercise of the powers under Article 309 of Constitution of India, amended the relevant Service Rules, 1995 notified on 18.11.2015 titled as U.P. Food and Drug Administration Department Gazetted Officers’ (Drugs) Service (Third Amendment) Rules, 2015 wherein the amended Rule-8 prescribes the “experience” as additional essential qualification for appointment on the post of Drug Inspector and it has been further submitted that the State Government, 7 by virtue of Entry 41 List-II Schedule VII of the Constitution of India, is competent to legislate with respect to public services under the State.
Observation of Hon’ble High Court: Article 309 and Central Legislation
After hearing the submissions made on behalf of the respective parties, the Hon’ble Justice A.R. Masoodi of Allahabad High Court at Lucknow observed that the Central Government within its concurrent domain of legislation has exhausted the legislative power on the aspect of prescribing the essential eligibility qualifications for selection.
As such, the State Government cannot fix a different recruitment for Drug Inspectors. Once the area of primary legislation is exhausted by the Central Government the legislative competence of the State stands eclipsed to the extent of inconsistency.
“The State irrespective of the powers under Article 246 read with Entry-41 of List-II Schedule-VII or Article 309 of the Constitution of India looses its base and any law framed thereunder contrary to the Central legislation would be void. Moreover, the consultative process envisaged under Section 33(1) of the Act, 1940 cannot be done away with by the State Government even if there existed a scope.”
It has been further observed by Hon’ble High Court that the said position is elaborately discussed in the judgements rendered by the Full Bench of this Court as well as by Delhi High Court in the judgements mentioned above.
In view of the above the Court allowed the Writ Petition and quashed the advertisement. The selection held in pursuance thereof has also been set aside with the liberty to the State to issue a fresh advertisement or corrigendum inviting applications from the eligible candidates having regard to the prescribed qualifications as per Rule 49 of the Drugs and Cosmetics Rules, 1949.