Hon'ble Ritu Raj Awasthi, J.
The delay in filing the special appeal is condoned.
Heard learned counsel for the appellant Sri Manjiv Shukla and Sri Kapil Dev, learned Senior Advocate, assisted by Sri Ashwani Kumar for the respondents.
The State challenges the order passed by the learned Single Judge dated 27.8.2010 by means of which, the learned Single Judge has issued a writ in the nature of mandamus commanding the appellant to issue the appointment orders to the respondents, in pursuance of the selection held by the U.P. Public Service Commission on the post of Drug Inspector within a period of one month.
The State instead of complying with the orders aforesaid and issuing appointment orders on the recommendation made by the U.P. Pubic Service Commission, has chosen to challenge the said order passed by the learned Single Judge by filing the present special appeal.
The ground of attack to the order is that the U.P. Public Service Commission was not authorized legally to modify the essential qualifications for the post in question, for which they had issued a corrigendum, dispensing away with one of the essential qualifications, as prescribed in the advertisement already issued and, therefore, the learned Single Judge could not have issued any such direction for issuance of appointment orders to the respondents, who obviously were not having the said essential qualification, which was mentioned as Number-2 qualification in the advertisement already issued.
Corollary to the aforesaid argument is that the U.P. Public Service Commission of its own could not have changed the essential qualification.
The argument aforesaid, at the first instance, appears to be impressive, but a little scrutiny of the record proves that it is a totally misconceived argument.
Five backlog vacancies of reserved class category for the post of Drug Inspector were advertised by the Commission on 28.12.07 in the news papers. This advertisement notified the following essential qualifications:
"(1) A degree in Pharmacy or Pharmaceutical Science or Medicine with specialization in clinical Pharmacology or Microbiology from a University established in India by Law; (2) Not less than 18 months experience in the manufacture of at least one of the substances specified in schedule "c" or 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 not less than three years experience in the inspection of firms manufacturing any of the substances specified in schedule "c". Preferential Qualification- A candidate who has (i) Served in the territorial Army for a minimum period of two years; or (ii) Obtained a "B" certificate of National Cadet Corps, shall other things, being equal be given preference in the matter of direct recruitment. Age- 21 to 35 years (Upper age limit relaxable to the candidates of U.P., as per rules)."
Later on, the Commission issued a Corrigendum on 23.5.09, saying that the qualification no.2 mentioned in the advertisement relating to 18 months experience was not required and it has been done away. It is this corrigendum, which, in fact, is being challenged by the State saying that the Commission has no power to modify the essential qualifications, as prescribed.
It is not the case of the appellant-State that in the requisition, the said essential qualification was mentioned by the State Government nor it is the case of the State that the essential qualifications advertised did tally to the statutory rules i.e. Rule 49 of the Drugs and Cosmetics Rules, 1945.
For appointment on the post of Drug Inspector, statutory essential qualifications have been prescribed under Rule 49 of the Drugs and Cosmetics Rules, 1945.
Rule 49 prescribes as under:
"Qualifications of Inspectors- A person who is appointed as 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]"
Thus, for being eligible for being considered for appointment as Drug Inspector, neither the State Government can require any additional essential qualification to be prescribed for the purpose nor any such advertisement can be issued nor the Commission would be at liberty to issue any advertisement prescribing the essential qualification, which are not inconformity with the aforesaid rules. If any such advertisement is issued or has been issued, which is contrary or so to say not in accordance with the aforesaid rules, the same is necessarily to be corrected and for that purpose, corrigendum has to be issued.
A bare reading of the aforesaid rules shows that the essential qualification for appointment on the post of Drug Inspector is of having a degree in Pharmacy or Pharmaceutical Sciences or Medicine with specialization in Clinical Pharmacology or Microbiology from a University established in India by law. This is the essential qualification for being appointed on the post of Inspector.
The proviso attached to the aforesaid Rule is only the prescription of experience of 18 months to the Inspectors already appointed for being entrusted the job of inspection.
The proviso does not lay down any essential qualification for being appointed as Inspector, but only speaks about the period of experience, when such an Inspector may be authorized for inspection.
Unless a person is appointed as Inspector, as envisaged in Clause (i), there would be no occasion for him to entrust the work of inspection and for making such authorization, 18 months' experience is necessary.
In case the government wanted to introduce some period of experience for appointment on the post of Inspector, it could be done only by making or amending the rules, as may be permissible under law.
The U.P. Public Service Commission since had incorrectly issued the advertisement laying down sub-clause (ii) of Rule 49 as an essential qualification for recruitment to the post of Inspector, which was governed by sub-rule (i), if has clarified the aforesaid position by issuing the corrigendum for correcting the mistake committed by it, there cannot be any exception nor it can be said that the Commission lacked competence.
We thus, do not find any ground to interfere with the orders passed by the learned Single Judge.
The special appeal is dismissed.
Dated: 29.11.2010 Sachin