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Suresh Singh Vs. the State of Bihar and ors. - Court Judgment

LegalCrystal Citation
Overruled ByMaheshwar Prasad Srivastava Vs. Suresh Singh and Ors. Dated:22.03.1976
SubjectService
CourtPatna High Court
Decided On
Case NumberCivil Writ Jurn. Case No. 502 of 1973
Judge
ActsDrugs and Cosmetics Rules, 1945 - Rule 49; Constitution of India - Article 226, Constitution of India - Article 227
AppellantSuresh Singh
RespondentThe State of Bihar and ors.
Advocates:J. Sahay, Chandra Shekhar, Jugal Prasad and Janardan Singh, Advs.
DispositionPetition partly allowed
Excerpt:
service - appointment - rule 49 of the drugs and cosmetics rules, 1945 - state of bihar issued notification where in appointed respondents nos. 4 to 7 as drugs inspectors, they were only science graduates - hence, this writ petition - whether, notification related to appointment of respondents 4 to 7, was entitled to be quashed - heldb.d. singh, j.1. this application by suresh singh under articles 226 and 227 of the constitution of india is directed against the notification issued by the state of bihar dated 12-4-1973 (annexure 4) appointing sharvshri arun kumar srivastava, khurshid alam, nityanand das and m.p. srivastava (respondents nos. 4, 5, 6 and 7 respectively), besides others, to the post of drugs inspector. the petitioner in the said application has prayed for quashing the appointment of respondents nos. 4 to 7 and for a direction to the state of bihar (respondent no. 1) and the director of health services, (respondent no. 2) to consider the case of the petitioner for appointment as drugs inspector.2. in order to appreciate the points involved in this application it will be necessary to state the facts.....
Judgment:

B.D. Singh, J.

1. This application by Suresh Singh under Articles 226 and 227 of the Constitution of India is directed against the notification issued by the State of Bihar dated 12-4-1973 (Annexure 4) appointing Sharvshri Arun Kumar Srivastava, Khurshid Alam, Nityanand Das and M.P. Srivastava (Respondents Nos. 4, 5, 6 and 7 respectively), besides others, to the post of Drugs Inspector. The petitioner in the said application has prayed for quashing the appointment of Respondents Nos. 4 to 7 and for a direction to the State of Bihar (respondent No. 1) and the Director of Health Services, (respondent No. 2) to consider the case of the petitioner for appointment as Drugs Inspector.

2. In order to appreciate the points involved in this application it will be necessary to state the facts briefly. The petitioner is a bachelor of pharmacy from Benaras Hindu University in Uttar Pradesh. The Government of Bihar in the Health Department through the Bihar Public Service Commission advertised the vacancy for the 12 posts of Inspector of Drugs in Class II Gazetted rank, which was published in the Bihar Gazette dated 28-4-1971. As laid down in the advertisement the post carries the pay scale of Rs. 300 to Rs. 750. Out of the 12 vacancies two posts were reserved, one each Scheduled Castes and Scheduled Tribes. A copy of the said advertisement is marked Annexure '1' to this application. The petitioner in pursuance of the said advertisement applied for the post of Drugs Inspector. The requisite qualification for appointment to the said post is laid down in Rule 49 of the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as 'the Rules'). In consonance with Rule 49 of the Rules the advertisement dated 28-4-1971 (Annexure 1) also required the same qualification. The Bihar Public Service Commission (Respondent No. 3) on 4th and 7th April, 1972, interviewed about 20 candidates, including the petitioner, who turned up for interview. No candidate belonging to Scheduled Castes and Scheduled Tribes community applied for the post, as stated by the petitioner in paragraph 9 of the application. In paragraph 10 thereof the petitioner has stated that out of total candidates interviewed by respondent No. 3, only 11 candidates were holding degree of bachelor of pharmacy and the rest, bachelor of science. Respondents Nos. 4 to 7, who were appointed as Drugs Inspectors, were only science graduates and according to the petitioner, they did not possess the requisite qualifications required under Rule 49 of the Rules and as mentioned in the advertisement in question.

3. On behalf of respondent No. 3, a counter-affidavit has been filed on 6-7-1973 wherein, inter alia, it is stated that respondents 4 to 7 were in possession of the requisite qualifications for the post of Drugs Inspector and they were eligible for the post as found by the technical expert. Dr. J.K.P. Sinha. Deputy Director of Health Services, who was present at the time of interviews of the candidates. The Commission on the opinion of the expert was satisfied that respondents 4 to 7 had requisite qualifications and, therefore, had recommended to the State Government to be appointed as Drugs Inspector. It was further stated in paragraph 7 of the counter affidavit that the petitioner was also interviewed but was not found suitable for appointment to the post.

4. On behalf of respondents 4 to 6 a counter affidavit was filed on 3-5-1974, stating amongst others, that they had the requisite qualifications and they were, therefore, duly appointed. Respondent No. 7, however, filed a separate counter-affidavit on 5-11-1974 and he also stated, inter alia, that he possessed the requisite qualification and he was rightly appointed to the post of the Drugs Inspector. A rejoinder to the counter-affidavit of respondent No. 3 has been filed on behalf of the petitioner on 13-1-1975 as also reply to the counter-affidavits filed on behalf of respondents Nos. 4 to 7 on that very date. Thereafter a supplementary affidavit has been filed on behalf of respondents 4 to 6 on 14-1-1975. Another supplementary affidavit was filed on behalf of the petitioner on 15-1-1975. Lastly, respondents Nos. 4 to 6 filed supplementary affidavit in reply to the supplementary affidavit of the petitioner on 15-1-1975.

5. Mr. Jagdish Sahay, learned counsel appearing on behalf of the petitioner has assailed the notification so far as the appointments of respondents Nos. 4 to 7 are concerned and has raised the following points for consideration by us:

(i) Respondents Nos. 4 to 7 were not qualified to be considered for the post of Drugs Inspectors, as they did not fulfil the requirements of Rule 49 of the Rules or the requirements contained in the advertisement (Annexure 1);

(ii) The State of Bihar (respondent No. 1) has not filed any counter-affidavit either stating that respondents Nos. 4 to 7 were qualified or that there is provision for imparting post graduate training in the Pharmaceutical School at Patna,as provided in Clause (c) of Rule 49 of the Rules and

(iii) The Bihar Public Service Commission (respondent No. 3) in the instant case never addressed itself to the question of qualification of respondents Nos. 4 to 7 as required under Rule 49 or under the terms of the advertisement. He submitter that respondent No. 3 completely surrendered to the opinion given by Dr. J.K.P. Sinha, the technical expert.

6. It will be convenient to take up point No. (i) first. He referred to Section 33 of the Drugs and Cosmetics Act, 1940, (hereinafter to be referred to as 'the Act'), which empowered the Central Government to make rules, and it was under this section that the Rules were framed by the Central Government. He referred to Rule 49 which reads as under:

"A person who is appointed an Inspector under the Act shall be a person who-

(a) has a degree in Pharmacy or Pharmaceutical Chemistry or a post-graduate degree in Chemistry with pharmaceutics as a special subject of a University recognised for this purpose by the appointing authority or the Associationship Diploma of the Institution of Chemists (India) obtained by passing the examination with 'Analysis of Drugs and Pharmaceuticals' as one of the subjects; or

(aa) holds the Pharmaceutical Chemists diploma granted by the Pharmaceutical Society of Great Britain; or

(c) is a graduate in medicine or science of a university recognised for this purpose by the appointing authority and has had at least one year's post-graduate training in a laboratory under (i) a Government Analyst appointed under the Act or (ii) a Chemical Examiner or (iii) a Fellow of the Royal Institute of Chemistry of Great Britain (Branch E) or (iv) the head of an institution specially approved for the purpose by the appointing authority:

Provided that only those Inspectors who have had not less than three years experience in the manufacture and testing of substances specified in Schedule C in a laboratory approved for this purpose by the licensing authority, shall be authorised to inspect the manufacture of items mentioned in Schedule C:

Provided further that for a period of four years from the date on which Chapter IV of the Act takes effect in the States, persons whose qualifications, training and experience are regarded, by the appointing authority as affording, subject to such further training" if any as may be considered necessary, a reasonable guarantee of adequate knowledge and competence, may be appointed as Inspectors and authorised under the preceding proviso:

Provided further for the purposes of inspection of shops in any specified area any officer of the medical or public health department who is a registered medical practitioner or a graduate in science may be appointed an ex-officio Inspector." Mr. Sahay contended that the provisions contained under Clause (c) of Rule 49 laid down three essential requirements to be fulfilled, namely, (a) he must receive post-graduate training in a laboratory: (b) that laboratory must be under a Government analyst, who has been appointed under the Act and (c) the training must be for a minimum period of one year. He also pointed out that none of the respondents Nos. 4 to 7 had received post-graduate training in a laboratory. He also placed before us the advertisement contained in Annexure 'I', which, inter alia, contains similar requirements as provided in Rule

49. Mr. Sahay then referred to the statements made in paragraphs 14 and 15 of the main writ petition, wherein it is stated that respondent No. 7 himself had made an enquiry in writing from the Drug Controller (India), Directorate General of Health Services, as to whether the respondent No. 7,who had working experience as scientific assistant in Drug Control Laboratory and was a science graduate, was eligible to be appointed as Drugs Inspector or not, which matter was referred to the Drug Controller, Bihar State, Patna, for clarification, (vide Annexure 2). On receipt of Annexure '2', Dr. J.K.P. Sinha, who was then Deputy Director of Health Services and Drug Controller (Bihar) by his letter dated 14-6-72 informed the Drug Controller (India) that working experience did not have the element of systematic knowledge and training and as such science graduate having working experience in a laboratory might not be appointed as Drug Inspector. The relevant portion of the letter (Annexure 3) is as follows:

"..... Training is a planned and systematic process. But mere working experience does not have the element of systematic knowledge and training. Hence, in our opinion a person having working experience of more than one year should not be deemed to have fulfilled the requirement of one year training."

He urged that it may be noticed that the same Dr. J.K.P. Sinha was the technical expert when the Commission had interviewed the petitioner and respondents Nos. 4 to 7.

7. Mr. Sahay reiterated that since respondents Nos. 4 to 7 had no post-graduate training in a laboratory, they were not qualified to be considered by Respondent No. 3, the Public Service Commission (hereinafter referred to as 'the Commission'). Therefore, their appointments by the impugned notification is vitiated. According to him, the petitioner having bachelor degree in Pharmacy was duly qualified under Clause (a) of Rule 49 of the Rules, whereas respondents Nos. 4 to 7 having merely degree in science would have been eligible for selection only under Clause (c) of Rule 49, provided they had acquired post-graduate training in a laboratory under a Government Analyst appointed under the Act. According to Mr. Sahay. 'post-graduate training in a laboratory' required training of M.Sc. standard in the case of the respondents. The word 'training' occurring in Rule 49 in the context obviously means, learned counsel emphasised person having systematic instruction and exercise, but the respondents having no such systematic instructions or exercise were not at all eligible vis-a-vis the petitioner, who was holder of a degree in pharmacy and that was the sufficient qualification as contemplated under Clause (a) of Rule 49. Since the petitioner, who was duly qualified, was being considered along with respondents Nos. 4 to 7, who had no requisite qualification, and respondents Nos. 4 to 7 would have been eliminated during the course of interview by the Commission, the petitioner had a fair chance to be recommended by the Commission and would have been appointed by the State Government. In the circumstances he submitted that the petitioner is entitled to the reliefs prayed for in his application.

8. In order to find support to his contention he has relied on an unreported judgment of this Court dated 16-2-1973 in C. W. J. C. No. 19 of 1972 (Dr. Binod Shankar Rai v. State of Bihar). In that case also the petitioner had prayed for quashing of the order dated 31-12-1971 (Annexure 5) of the State Government appointing Dr. Kailashpati Yadav (respondent No. 5) as a Resident Surgical Officer (Thoracic Surgery) in the P.W. Medical College, Patna. K.B.N. Singh and Sarwar Ali. JJ., observed in paragraph 15 that respondent No. 5 was not eligible for appointment as he had not put in the minimum of one year's service in the State Health Service, as required by the advertisement (Annexure 1) on the last date of filing the application. As a result of the interview and evaluation of marks also the petitioner ranked higher to respondent No. 5, whose appointment could not be sustained. It was apparent therefore that their Lordships held that the petitioner's case could not be said to have been duly considered and he could very well maintain the writ application for quashing the order of appointment contained in Annexure 5. In conclusion, their Lordships allowed the application of the petitioner.

9. Reference was also made to C. Channabasavaiha v. State of Mysore, (AIR 1965 SC 1293) where their Lordships held that where selection to the public services was to be made by the State Public Service Commission by holding viva voce test of the candidates, selection of those who had obtained less number of marks in preference to those who had obtained greater number of marks, other things being equal could not be sustained. In view of the above decisions I have no doubt, in my mind, that the petitioner had legal rights and his application was entertainable under Article 226 of the Constitution. But it has yet to be decided, as to whether the petitioner is entitled to any of the reliefs sought for which chiefly depend upon the construction of Rule 49 (c) of the Rules, particularly the phrase 'post-graduate training in a laboratory' occurring therein.

10. Mr. Basudev Prasad, learned counsel appearing on behalf of respondents Nos. 4 to 6, has also agreed that the construction of Clause (c) of Rule 49 is the crux of the matter. He referred to the counter-affidavit filed on behalf of respondents Nos. 4 to 6 on 3-5-1974, which was sworn by Arun Kumar Srivastava (respondent No. 4). It was stated in paragraph 10 thereof that respondent No. 4 was working as demonstrator with effect from 8-3-1967 in the Pharmacy School, Patna, which is under the Department of Health, Government of Bihar. Respondent No. 5 was also demonstrator with effect from 23-9-1963 in the said school and respondent No. 6 was demonstrator therein from 24-4-1961. Therefore, it was submitted that Respondents Nos. 4. 5 and 6 had experience of more than 4 years, 7 years and 10 years, respectively, on the date of advertisement, that is on 28-4-1971. Mr. Prasad, therefore, submitted that their experience as demonstrators after having held by them degree in science is sufficient to hold them 'trained' within the meaning of Rule 49. In this connection he referred to the certificate dated 14-1-1972 (Annexure C (1)) to the supplementary affidavit filed on behalf of respondents Nos. 4 to 6, granted by the Principal of Pharmacy School. Patna, the relevant portion of which is to the following effect:

"Sri Arun Kumar Srivastava. B.Sc. joined this institution on 8-3-1967 as Demonstrator in Chemistry Section, where post-matriculation teaching in Diploma in Pharmacy is imparted. He trains the student of this Institution in analytical works of Pharmaceutical Drugs and Chemicals. Thus he has acquired sufficient knowledge in analysis of Drugs and Pharmaceuticals. I find him co-operative, intelligent and hard worker."

Annexure C (2) of the said supplementary affidavit is a similar certificate granted by the Principal to Shri M.K. Alam (respondent No. 5), the relevant portion of which is to the following effect:

"This is to certify that Sri M.K. Alam, B.Sc. joined this institution on 23-9-1963 as Demonstrator where teaching in post-matriculation Diploma in Pharmacy is imparted. Since then he is working here. He trains the students in analytical works of pharmacopoeial drugs and chemicals along with a large number of pharmacopoeial preparations per specification of I.P., B.P., B.C.P. and N.F. covered under the subjects pharmaceutical chemistry and general pharmacy. He has been fully trained on the above aspect during his stay here. He has acquired sufficient knowledge and experience in the analysis and preparation of drugs and pharmaceuticals."

Annexure C (3) is the certificate granted by the same Principal to respondent No. 6, the relevant portion of which reads as:

"1 have to certify that Sri Nityanand Das joined this institution on the 24th April, 1961, as Demonstrator of Physics where post-matriculation teaching in Diploma in Pharmacy is imparted.

He has been training the students of this Institution in analytical works of Pharmaceutical Drugs and Chemical mentioned in the I.P., D.P., B.P.C. and U.S.C. besides taking the classes of general pharmacy and dispensing pharmacy and chemistry, the subject dealing with drugs and cosmetics for more than 10 years.

Moreover, he had opportunities for being deputed for analytical works of drugs in the Bihar Drugs Control Laboratory, Patna, then a section of Institution of Pharmacy. Sultanganj Patna-6. Thus he has acquired sufficient knowledge in analysis of pharmaceutical drugs and pharmaceutics. I find him co-operative, meritorious and experienced with good moral character. He can be entrusted to any work of responsibility."

11. Mr. Prasad submitted that the phrase 'post-graduate training' occurring in the said rule means training after graduation, that is according to him is the simple meaning. He urged that it cannot be construed to mean 'training' of postgraduate standard, as submitted by the learned counsel for the petitioner. According to him the word 'standard' is not to be found in the said rule. According to Mr. Prasad, their experience in the school as demonstrators for a number of years was sufficient to consider them as fully trained and possessed of requisite qualifications for appointment as Drugs Inspectors, as provided in the Rules. He referred to the ordinary dictionary meaning of the word 'training'. Oxford English Dictionary, Reprint 1961 Vol. XI, page 239, mentions the meaning of the word 'training' as "Discipline and instruction directed to the development of powers or formation of character; education, rearing, bringing up; systematic instruction and exercise in some art, profession, or occupation, with a view to proficiency in it" Mr. Prasad submitted that the training no doubt means systematic instruction, but it also means exercise in some art profession with a view to proficiency in it. If respondents 4 to 7 as demonstrators in the Pharmacy School had acquired experience, they had also acquired proficiency as supported by the various certificates referred to above. He urged that the word 'training' occurring in Rule 49 (c) is, therefore, capable of more than one meaning. It is well settled, he contended, that if two constructions are possible and if the Commission had taken a particular view on the basis of one of the constructions, which gave rise to the impugned notification appointing the respondents this Court would not interfere under writ jurisdiction. In support of his contention he referred to Principal. Patna College, Patna v. Kalyan Srinivas Raman, (AIR 1966 SC 707) and he drew our attention to paragraph 20 at page 713, the relevant portion of which is to this effect:--

"..... Even on the merits, we think we ought to point out that where the question involved is one of interpreting a regulation framed by the Academic Council of a University, the High Court should ordinarily be reluctant to issue a writ of certiorari where it is plain that the regulation in question is capable of two constructions and it would generally not be expedient for the High Court to reverse a decision of the educational authorities on the ground that the construction placed by the said authorities on the relevant regulation appears to the High Court less reasonable than the alternative construction which it is pleased to accept. The limits of the High Court's jurisdiction to issue a writ of certiorari are well recognised and it is on the whole, desirable that the requirements prescribed by judicial decisions in the exercise of writ jurisdiction in dealing with such matters should be carefully borne in mind."

He also preferred to Dr. Umakant Saran v. State of Bihar, (AIR 1973 SC 964) where it was held that in order that mandamus might issue to compel the authorities to do something, it must be shown that the statute imposed a legal duty and the aggrieved party had a legal right under the statute to enforce its performance. In that case it was held that while respondents were eligible for appointment as lecturers and the petitioner-appellant was not and, therefore, he could not be regarded as aggrieved for the purpose of issue of mandamus for setting aside the appointments of the respondents. Mr. Prasad, in that connection referred to the counter-affidavit filed on behalf of respondent No. 3 wherein it was mentioned, as stated above, that the petitioner was also interviewed but was not found suitable for appointment to the post by the Commission.

12. Mr. Prasad also placed before us a recent judgment of the Supreme Court in Mohammad Shujat Ali v. Union of India. (AIR 1974 SC 1631) where it was held that the question in regard to equivalence of educational qualifications was a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications and where the decision of the Government was based on the recommendation of an expert body, which possessed the requisite knowledge, skill and expertise for adequately discharging such a function the Court, uninformed of relevant data and unaided by the technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government. It was only where the decision of the Government was shown to be based on extraneous or irrelevant considerations or actuated by mala fides or irrational and perverse or manifestly wrong that the Court would reach out its lethal arm and strike down the decision of the Government. Therefore, where the view taken by the Government of Andhra Pradesh that US and OCE certificates of the Osmania Engineering College were not equivalent to US or OCE Diploma of the College of Engineering. Guindy or LCE. LME or LEE diploma of any other recognised institution did not suffer from any of those infirmities and it was based on the recommendation of an expert high powered body like the State Board of Technical Education consisting of distinguished administrators, educationists and technical experts against whom nothing could be alleged on behalf of the petitioners appellants, the decision taken by the Government of Andhra Pradesh on the basis of the recommendation of the State Board of Technical Education could net be regarded as unreasonable or perverse or manifestly wrong nor could it be said to be mala fide or based on extraneous or irrelevant considerations. Hence, the decision of the Government of Andhra Pradesh denying equivalence of US and OCE of the Osmania Engineering College with LCE, LME or LEE diplomas could not be set aside.

13. Mr. Krishna Prakash Sinha, learned counsel appearing on behalf of respondent No. 7, contended that the case of respondent No. 7 was different from those of respondents Nos. 4 to 6. He pointed out that respondent No. 7 took his B.Sc. degree in 1960 with Chemistry as one of the subjects. Later he was appointed as demonstrator in Pharmacy School, Patna, and worked as such for five years. Then he was appointed as Senior Scientific Assistant in the Bihar Drugs Control Laboratory. Patna, under Government Analyst appointed under the Act, in December, 1966, and from 23rd December, 1966, upto the date of interview he had put in more than 4 years of service as Senior Scientific Assistant to the Government Analyst. During the absence of the Government Analyst, respondent No. 7 was also put in charge of the Government Drugs Control Laboratory, as evidenced by Annexure A/2 to the counter-affidavit filed by respondent No. 7, on 5-11-1974. He also drew our attention to the certificate granted by Sheo Vihari Lal on 30-10-1971 to respondent No. 7, who was Government Analyst and Officer in-charge, Bihar Drugs Control Laboratory, Agamkuan, Patna. The said certificate reads thus:

"This is to certify that Shri Mahesh-war Prasad Srivastava. B.Sc., B.D., Senior Scientific Assistant who is a graduate in Science has been working in Bihar Drugs Control Laboratory. Patna, since 1966, under me a Government Analyst appointed under Drugs Act, 1940. Hence, he has been trained for more than a year under a Government Analyst and he has also gained experience in analysis and testing of drugs."

Mr. Sinha further adopted the argument advanced on behalf of respondents Nos. 4 to 6 by Mr. Prasad as to the meaning of the word 'training' occurring in Rule 49 (c). He also urged that for the reasons stated above respondent No. 7 was duly qualified to be appointed as Drugs Inspector under Rule 49 (c) (i) or (iv) of the Rules. Not only that his qualification was such that he could have been appointed even Government Analyst a higher post as provided under Rule 44 (a) of the Rules,

14. In my opinion, considering various provisions of the Rules as well as the Act and its preamble, it will be difficult to give a different meaning of the word 'training' than 'systematic instruction'. According to the requirements of the qualifications, contemplated under Rule 49 fc) of the Rules, it was incumbent upon the respondents to have received systematic instruction in a laboratory where training is imparted. It may be noticed that the rules have been framed by the Central Government and are not confined only to the State of Bihar. If the State of Bihar had not made any specific provision of imparting training in any of its institutions, for that reason the word 'training' occurring in Rule 49 (c) cannot be liberally construed. Reference may be made to Buddhan Singh v. Nabi Bux, (AIR 1962 All 43) (FB) where it was held that if a word was capable of being understood in a narrow as also a broad sense then one has to look to the setting in which the word appeared in order to ascertain the sense in which the legislature used the word. In Ramesh Metal Works v. State, (AIR 1962 All 2271 (FB) it was observed that law was not an exercise in linguistic discipline. It was emerging as an important therapy in disorder of social metabolism. It was a complex process and could be fully understood only by an attentive regard to its thereapeutic function and its synthesis. There was accordingly growing recognition by Courts that a statute should be construed, rather than interpreted, with due regard to its avowed object and to its character.

15. In my opinion in construing the words in a section of an Act it is not to take those words in vacua so to speak and attribute to them what is sometime called natural and ordinary meaning. It has to read the statute as a whole and ask oneself the question in this context relating to the subject-matter what is true meaning of the word ?" Vide (1948) 2 All ER 995-998. It is also well settled that the words derive colour from those which surround them. (Vide (1967) 2 All ER 576-578). 'A word is not a crystal transparent and unchanged, it is skin of living thought and may vary greatly in colour and content according to circumstances and the time in which it is used' (Vide (1918) 245 US

418. 425). It may be noticed that in the instant case the preamble of the Act, under which the Rules have been framed, mentions, inter alia, 'to regulate the manufacture of drugs and cosmetics'. By reading the provision of the Act it is manifest that the main object of the Act is to prevent substandards in drugs presumably for maintaining high standard of medicinal treatment. It may also be noted that in Clause (a) of Rule 44 of the Rules the rule making authority has used the term "experience" whereas in the first proviso to the said rule the word 'training' has been used and in the second proviso both the words "training and experience" have been used. Therefore, it is obvious that the rule making authorities were aware with the difference in the meaning of the words 'training' and 'experience'. Being so aware the rule making authorities have chosen the word 'training' only to be used under Clause (c) of Rule 49 of the Rules. Therefore, it will be difficult for me to hold the word 'training', used in Clause (c) of Rule 49, to mean 'experience' also.

16. Duties of an Inspector are mentioned in Rules 51 and 52 of the Rules. It will be relevant to quote below Clause (3) of Rule 51 of the Rules:

"Subject to the instructions of the controlling authority, it shall be the duty of an Inspector authorised to inspect premises licensed for the sale of drugs-

(3) to procure and send for test or analysis, if necessary, samples of any drug which he has reason to suspect are being sold or stocked or exhibited for sale in contravention of the provision of the Act or Rules thereunder; From the above provisions it will appear that an Inspector is required to send for test or analysis, if any samples of any drug which he has reason to suspect are being sold or stocked or exhibited for sale in contravention of the provisions. This shows that it requires perfect knowledge in pharmacy and obviously it requires 'systematic instruction'. It may further be seen that Clause (2) of Rule 52 also requires trained instructions while discharging the duty. The said provision reads thus:

"Subject to the instructions of the controlling authority it shall be the duty of an Inspector authorised to inspect the manufacture of drugs-

(2) in the case of establishments li-censed to manufacture products specified in Schedule 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;" It will thus appear that an Inspector has to inspect a plant and process of manufacture etc. No doubt, in such cases Inspectors are specially authorised to inspect the manufacture of drugs but such Inspectors have to be appointed out of the Inspectors appointed under Rule 49 of the Rules.

17. The submission of Mr. Sinha also to the effect that respondent No. 7 had such qualification that he could have been appointed even Government Analyst as per qualifications required under Rule 44 of the Rules, which he submitted, was obviously higher post than that of the post of Inspector of Drugs, is not tenable. I have already examined Rule 44 wherein the word 'experience' has been used. Even if it is assumed that he was qualified to be appointed under Rule 44, it has to be tested as to whether he was qualified to be appointed under Rule 49 of the Rules. The certificate contained in Annexure A/1, granted to respondent No. 7, which I have quoted earlier, is also of no avail to him in order to establish that he had received the requisite training. It simply mentions that respondent No. 17 was working in the Bihar Drugs Control Laboratory. Patna since 1967 and therefore, in his opinion he had been trained for more than one year under a Government Analyst and thereby he had gained experience in analysis and testing of drugs. In other words, this certificate is also based on experience not on the fact that respondent No. 7 had acquired systematic instruction. It has already been stated that in the State of Bihar there is no provision in any institution for imparting such training nor any syllabus was published, which fact was also emphasised by Mr. Sinha.

18. The observation of their Lordships of the Supreme Court in the case of Mohammad Shujat Ali, (AIR 1974 SC 16311 (supra), on which reliance has been placed by Mr. Prasad, is not applicable on the facts and circumstances of the instant case. In that case, it may be seen that there was a committee of experts for proper assessment and evaluation of relevant academic standards and for interpreting the rules of equivalence, whereas in the instant case there was no such committee of experts for interpreting the rules in respect of equivalence. In the instant case Dr. J.K.P. Sinha was the expert only to assist the Commission by his expert opinion at the time of interview of the petitioner and the respondents. Besides the opinion of this expert was of no value in view of Annexures 2 and 3 referred to above. Similarly the observation of their Lordships in AIR 1966 SC 707 (Supra), relied upon by Mr. Prasad, is not applicable to the instant case. I have already observed that in the context in which the word 'training' is used and in the light of the object and the preamble of the Act training meant 'systematic instruction' and it was not capable of other construction. The submission of Mr. Prasad on the basis of the observation in AIR 1973 SC 964 (supra) is also not tenable. It may be noticed that in that case petitioner-appellant Dr. Uma Kant Saran was not qualified at all. In the instant case on the basis of the counter-affidavit filed on behalf of respondent No. 3, it cannot be said that the petitioner was not qualified at all. On the contrary, his qualification is in accordance with the requirement contained in Rule 49 (c) of the Rules. Mr. Prasad had submitted that he was not found suitable in spite of the qualification, in the interview by respondent No. 3. In my view the word 'unsuitable' used in the counter-affidavit would mean that he was not found suitable vis-a-vis respondents Nos. 4 to 7. It does not mean that he was not qualified at all or unqualified.

19. Mr. S. Shamsul Hasan, learned counsel appearing on behalf of respondent No. 3, has merely adopted the argument advanced by Mr. Prasad and Mr. Sinha. Therefore, nothing turns on his submissions.

20. Mr. Prasad in the alternative contended, that even if it was held that the word 'training' occurring in Rule 49 meant in the context 'systematic instruction', which the respondents Nos. 4 to 6 had not received in a laboratory under a Government Analyst, appointed under the Act, the appointments of these respondents should not be interfered with in view of the fact that the Patna Pharmacy School had no provision for imparting such training nor it has published any syllabus. He further submitted that the State of Bihar has not provided for imparting training in any of the institutions in the State and, therefore, it will amount to causing undue hardship to the respondents, if their experience as demonstrators or otherwise is not treated as training for the purpose of Rule 49 (c) of the Rules. In this connection, he referred to notification No. III/RI-2010/55A-11505 dated 28-11-1956, issued by the Government of Bihar, appointment Department, which reads as:

"Where the State Government are satisfied that the operation of any rule regulating the conditions of service of State Government servants or any class of such Government Servants, causes undue hardship in any particular case, they may by order dispense with or relax the requirements of that rule to such extent and subject to such conditions as they may consider necessary for dealing with the case in a just and equitable manner".

In my opinion, the above notification also is of no avail to the respondents Nos. 4 to 7. In the notification appointing them nothing has been mentioned to show that they were being appointed because there was no provision for imparting post-graduate training in any of the institutions in the State of Bihar and as such the provisions contained in Rule 49 (c) of the Rules were being relaxed in the case of appointment of those respondents. In Annexure A dated 18-9-1972, which is a note addressed to the Health Minister by Mr. Nagmani, the then Health Commissioner, it is mentioned that the advertisement (Annexure '1') required one year postgraduate training in a laboratory under Government Analyst but there is no provision for such training in any of the institutions in the State of Bihar. He has also mentioned therein that due to the fact that respondents 4 to 7 had acquired experience in the Pharmacy School as demonstrators that the Commission had found them suitable. He had, therefore, recommended to the Health Minister for their appointment as Drugs Inspectors.

21. In my opinion, no reliance can be placed on Annexure 'A'. Mr. Basudev Prasad had also at the very initial stage conceded that Annexure 'A' could not be looked into as it being a privileged and confidential document could not have been made available to respondents 4 to 6, In my opinion, therefore, it was unauthorised document. Besides, the provision contained in Rule 49 (c) could not have been relaxed by Annexure A. Under notification dated 28-11-1956, referred to above, the State Government alone, if satisfied, could have dispensed with or relaxed the requirements contained in Rule 49 (c) of the Rules by an order, but in the instant case no such order has been passed either separately or in the impugned notification. At any rate, such order, if any, passed by the State Government has not been placed on the record.

22. After careful consideration from different aspects. I am of opinion that the impugned notification, so far as it relates to the appointment of respondents 4 to 7, cannot be sustained as they did not have the requisite qualification as required under Rule 49 (c) of the Rules or under the advertisement (Annexure 1), and I accept the contention of learned counsel for the petitioner under point No. (1).

23. Learned counsel for the petitioner has not pressed other reliefs, as prayed for in the application. In that view of the matter, it will not be necessary to deal with the contentions of learned counsel for the petitioner under point Nos. (ii) and (iii).

24. In conclusion, this application is allowed in part and the notification dated 12-4-1973 (Annexure 4), so far as it relates to the appointment of respondents 4 to 7, is quashed. In the circumstances, however, there will be no order as to costs.

Birendra Prasad Sinha, J.

25. I agree.


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