# Ashish Tyagi & Ors v. State of U.P. & Anr

- **Citation:** (2021) 1 ILRA 724
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-08
- **Case number:** Service Single No. 262 of 2021
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-tyagi-ors-v-state-of-u-p-anr-46709
- **Pages:** 7

## Headnote

A. Drugs and Cosmetics Act, 1940 -
Sections 21 and 33 - Drugs and Cosmetics
Rules, 1945 - Rule 49 - Service law -
Recruitment - Essential qualification -
Changing - Repugnancy with the Central
law - Power of the State Government -
Central Government within its concurrent
domain of legislation has exhausted the
legislative
power
on
the
aspect
of
prescribing
the
essential
eligibility
qualifications for selection - There is no
scope open to the State Government for
fixing a different or additional recruitment
criteria
of
Drug
Inspectors
-
Held,
amended Rule 8 of the U.P. Food and Drug
Administration
Department
Gazetted
Officers'
(Drugs)
Service
(Third
Amendment) Rules, 2015 lacks authority
and being inconsistent with Rule-49 of the
Drugs and Cosmetics Rules, 1945, the
same is liable to be set aside. (Para 15 and
17)
B. Constitution of India - Article 254 -
Central legislation and State legislation -
Repugnancy - Legislative competence -
Held, Once the area of primary legislation
is exhausted by the Central Government
and
rules
are
made,
the
legislative
competence of the State or its rule making
authority stands eclipsed to the extent of
inconsistency - A contrary attempt made
by the State would be clearly repugnant to
the very objects of the law made by the
Central Government. (Para 15)
Writ Petition allowed. (E-1)
Cases relied on :-

## Text

724 INDIAN LAW REPORTS ALLAHABAD SERIES
substance, it is a scheme for recovery of
duty/indirect tax to unlock the frozen assets
and to recover the tax arrears at a
discounted amount. Thus, "Sabka Vishwas
Scheme", although a beneficial scheme for
a declarant, is statutory in nature, which has
been enacted with the object and purpose to
minimise the litigation and to realise the
arrears of tax by way of settlement at
discounted amount in an expeditious
manner. In other words the scheme is a step
towards the settlement of outstanding
disputed tax liability.

16. For all the reasons aforestated we
do not find any merit in this writ petition.

17. Consequently, the writ petition
fails and is hereby dismissed.
----------
(2021)01ILR A724
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.01.2021

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.

Service Single No. 262 of 2021

Ashish Tyagi & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Vineet Kumar Pandey, Pradeep Kumar
Tiwari

Counsel for the Respondents:
C.S.C., Ashok Shukla

A. Drugs and Cosmetics Act, 1940 -
Sections 21 and 33 - Drugs and Cosmetics
Rules, 1945 - Rule 49 - Service law -
Recruitment - Essential qualification -
Changing - Repugnancy with the Central
law - Power of the State Government -
Central Government within its concurrent
domain of legislation has exhausted the
legislative
power
on
the
aspect
of
prescribing
the
essential
eligibility
qualifications for selection - There is no
scope open to the State Government for
fixing a different or additional recruitment
criteria
of
Drug
Inspectors
-
Held,
amended Rule 8 of the U.P. Food and Drug
Administration
Department
Gazetted
Officers'
(Drugs)
Service
(Third
Amendment) Rules, 2015 lacks authority
and being inconsistent with Rule-49 of the
Drugs and Cosmetics Rules, 1945, the
same is liable to be set aside. (Para 15 and
17)
B. Constitution of India - Article 254 -
Central legislation and State legislation -
Repugnancy - Legislative competence -
Held, Once the area of primary legislation
is exhausted by the Central Government
and
rules
are
made,
the
legislative
competence of the State or its rule making
authority stands eclipsed to the extent of
inconsistency - A contrary attempt made
by the State would be clearly repugnant to
the very objects of the law made by the
Central Government. (Para 15)
Writ Petition allowed. (E-1)
Cases relied on :-
1. Civil Misc. Writ Petition No. 46079 of 2010,
Kuldeep Singh & ors. Vs St. of U.P. & anr.
decided on 10.04.2014
2. Writ Petition(c) 2475 of 2019, U.P.S.C. Vs
Nidhi Pandey & anr. decided on 18.02.2020
3. Jaspal Reddy Vs St. of A.P., (1994) 4 SCC
391
(Delivered by Hon'ble Attau Rahman Masoodi, J.)

"Heard
learned
counsel
for
the
petitioners.

It
is
strange
to
note
that
the
advertisement stated to have been issued on
10.08.2016 is in the teeth of full bench
judgment rendered by this Court in a bunch
of writ petitions leading case being
1 All. Ashish Tyagi & Ors. Vs. State of U.P. & Anr.
725
W.P.No.46079
of
2010
decided
on
10.04.2014.

The petitioners have asserted that
their
exclusion
from
the
zone
of
consideration has occasioned on account
of the incorporation of the condition of
experience
in
the
advertisement,
although except petitioner no.1 the other
petitioners have failed to apply. It is also
stated that the Commission on account
of this anomaly had not proceeded with
the process of selection for about four
years. The selection process through
interviews
adhering
to
the
same
conditions was reiterated and notified by
letter dated 24.12.2020. The petitioners
having come to know about the faulty
process have thus approached this Court.

It
is
well
settled
that
every
advertisement for recruitment in public
service
must
proceed
strictly
in
accordance with the statutory rules. In
the present case the full bench judgment
which ought to have been adhered to for
this purpose also seems to have been
side tracked for no valid reason and
thereby the zone of consideration is
sought to be frozen. All the petitioners
are
possessed
with
the
requisite
eligibility since prior to the date of
advertisement,therefore, it cannot be
said that the requisite qualification was
acquired by the petitioners after the date
of advertisement.

The delay in approaching this Court
is a circumstance unfavourable to the
petitioners but an illegality going to the
root of the process of selection cannot be
viewed lightly by this Court.

In the circumstances of the case, the
petitioners are permitted to make a
representation to the opposite party no.1
within a period of ten days' from today.
In case a representation is filed, the
same shall be decided by the opposite
party no. 1 passing a reasoned and
speaking order. The order so passed be
communicated to the petitioners without
any delay.

Until decision on the representation
filed by the petitioners, the selection
held, if any, may not be acted upon.

The writ petition is accordingly
disposed of."

1. Before the aforesaid order could be
signed, Sri Ashok Shukla, learned counsel
for U.P. Public Service Commission
brought to the notice to this Court an
amendment made in 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.
This amendment brought in the parent rules
has been promulgated in exercise of the
powers under Article 309 of Constitution of
India. The comparative position of the
relevant provision i.e. Rule-8 is reproduced
below.

COLUMN-1
Existing
Rule
COLUMN-2
Rule as substituted
8. Academic
qualification
A candidate
for
direct
recruitment
to the post of
Inspector of
Drugs
must
possess
the
following
qualification:

8. Academic qualification
A
candidate
for direct
recruitment to the post of
Inspector of Drugs must
possess such qualifications
as have been prescribed
under Rule-49 of the Drugs
and Cosmetics Rules, 1945
made
by
the
Central
Government in accordance
with
the
provisions
contained in section 21 of
the Drugs and Cosmetics
Act, 1940.
(i) Degree in Pharmacy or
Pharmaceutical
Sciences
726 INDIAN LAW REPORTS ALLAHABAD SERIES
or
Medicine
with
specialization in Clinical
Pharmacology
or
Microbiology or equivalent
from
a
recognized
University;
(ii) (a) Eighteen months
experience
in
the
manufacture of at least one
of the substances specified
in Schedule"C" to the Drug
and
Cosmetics
Rules,
1945; or
(b)
Eighteen
months'
experience in testing of
atleast
one
of
the
substances
specified
in
Schedule 'C' to the Drugs
and Cosmetics Rules, 1945
in a laboratory approved
for this purpose by the
licensing authority; or
(c) Three years experience
in the inspection of firms
manufacturing any of the
substances
specified
in
Schedule 'C' to the Drugs
and Cosmetics Rules, 1945
during the tenure of their
services as Drug Inspector
of any State Government or
Central Government

2. It may be noted 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 Rule 49
reads as under:

"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 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 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."

3. In the light of the statutory rule
reproduced above, the question that crops for
consideration is as to whether the power of
the State for prescription of essential
qualifications to fill up the posts of Drug
Inspector stands denuded otherwise than
what has been prescribed under Rule 49 of
Drugs and Cosmetics Rules, 1945 framed
under Section-21 read with Section 33 of the
Act, 1940.

4. A question to this effect previously
cropped up before this Court which on a
reference being made to the Full Bench was
1 All. Ashish Tyagi & Ors. Vs. State of U.P. & Anr.
727
decided in a bunch of writ petitions leading
case being Civil Misc. Writ Petition No.
46079 of 2010 (Kuldeep Singh and others
v. State of U.P. and another). The
questions referred to the Full Bench read as
under:

"(1) Whether the experience required
in the proviso to Rule 49 of the Drugs and
Cosmetics Rules, 1945 is only a bar of
authorization to inspect the manufacture of
substances, or is an essential qualification
under Rule 49 for direct appointment as
Drug Inspector under Rule 5 (4) of the U.P.
State Drug Control Gazetted Officers'
Service Rules, 1995.

(2) Whether the Division Bench
judgment in State of U.P. Vs. Zunab Ali &
Ors.1 has been correctly decided."

5. On a consideration of the matter,
the Full Bench of this Court answered the
reference by observing as under:

"27. We, accordingly, answer the
questions referred to the Full Bench as
follows:

(i) The experience referred to in the
first proviso to Rule 49 of the Drugs and
Cosmetics Rules, 1945 has not been made
an essential qualification for appointment
as a Drug Inspector. 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.

(ii) The judgment of the Division
Bench in Zunab Ali (supra) has been
correctly decided.

28.
The
reference
is
answered
accordingly."

6. Learned counsel for the petitioner
has also placed before this Court a Division
Bench judgement of Delhi High Court
rendered in a bunch of writ petitions
instituted
by
Union
Public
Service
Commission, the leading case being Writ
Petition(c) 2475 of 2019 (Union Public
Service Commission v. Nidhi Pandey and
another).

7. In the controversy decided by the
Delhi High Court, the relevant Service
Rules providing for additional eligibility
criteria framed in exercise of powers under
Article 309 of the Constitution of India
being in conflict with the provisions of
Rule 49 of Drugs and Cosmetics Rules,
1945 came under consideration. The Delhi
High Court on an elaborate consideration
of the issue has clearly opined that the rule
making power of the Government under
Article 309 of the Constitution of India,
whether Central or State, is transitory and
the rules so framed cannot be interpreted in
a manner which may have a conflicting
impact of overreach as against the primary
legislation
made
by
the
Central
Government in furtherance of the objects of
Section 33 read with Section-21 of the
Drugs and Cosmetics Act, 1940. The
position of legislative exercise of powers
under Article 309 of Constitution of India
was thus clarified and this Court is in full
agreement with the opinion expressed by
the Delhi High Court on this aspect of the
matter.

8. A similar question has now come
up before this Court looking to the
advertisement made by the U.P. Public
Service Commission which has prescribed
eligibility qualifications as per the amended
Rule-8 reproduced above.

9. The rule making power in the
present case has also been exercised by the
State Government under Article 309 of the
728 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution of India. The precise question
is as to whether such a rule can be operated
by the U.P. Public Service Commission
insofar as the recruitment on the post of
Drug Inspector is concerned

10. It is true that the advertisement
was made as far back as on 10.8.2016 but
the selection, for the reasons best known to
the Commission, could not progress any
further. In furtherance of the advertisement
made, when the schedule of selection
through interview was notified by letter
dated 24.12.2020, the petitioners came to
know about the selection process and have
thus come up before this Court assailing the
advertisement and process of selection. The
ground that the advertisement made by the
Commission does not stand in conformity
with the eligibility qualifications prescribed
under Rule 49 of the Drugs and Cosmetics
Rules, 1945 is the main argument put forth
by the learned counsel for the petitioners.

11. On a close scrutiny of the
advertisement, it is gathered that the
experience postulated under the amended
rules w.e.f. 18.11.2015 framed under
Article 309 of the Constitution of India has
been set out. The prescription of such a
qualification is not sanctified under Rule 49
of Drugs and Cosmetics Rules, 1945, hence
a grievance excluding the petitioners from
the zone of consideration is thus manifested
on the face of advertisement. The petitioner
no. 1 who has applied for appointment is
excluded on account of the prescription of
qualifications and rest of the petitioners
have averred that they stood deprived of
applying against the posts due to the
untenable qualifications prescribed in the
advertisement.

12. It is argued that right of equal
consideration for selection in public service
is guaranteed under Article 14 of the
Constitution of India and such a right
cannot be taken away under the garb of a
principle which has no sanctity under law.
In support of the arguments advanced, the
petitioners have heavily relied upon the
Full Bench judgement rendered by this
Court as well as the Division Bench
judgement of Delhi High Court mentioned
above.

13. Per contra, Sri P.K. Singh and Sri
Ashok Shukla, learned counsel appearing
for the State and U.P. Public Service
Commission have argued that the State
Government, 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 and any
additional qualification prescribed in the
rules made under Article 309 of the
Constitution of India, unless challenged
before this Court, is bound to be complied
with by the Public Service Commission,
therefore, the advertisement issued by the
U.P. Public Service Commission stands
wholly in conformity with law. In support
of the argument put forth by the State
Government as well as by U.P. Public
Service
Commission,
the
judgement
rendered by the apex court in the case of
Jaspal Reddy v. State of Andhra Pradesh
reported in (1994) 4 SCC 391, has been
placed reliance upon.

14. This Court may note that the rule
making power for prescription of the
essential eligibility qualifications to appoint
Drug Inspectors is traceable to Section 21
read with Section 33(1) and (2)(b) of the
Drugs and Cosmetics Act, 1940, which for
ready reference may be reproduced below:

"21. Inspectors.--(1) The Central
Government or a State Government may,
1 All. Ashish Tyagi & Ors. Vs. State of U.P. & Anr.
729
by notification in the Official Gazette,
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.

(2) The powers which may be
exercised by an Inspector and the duties
which may be performed by him, the
drugs or classes of drugs or cosmetics or
classes of cosmetics in relation to which
and
the
conditions,
limitations
or
restrictions subject to which, such powers
and duties may be exercised or performed
shall be such as may be prescribed.

(3) No person who has any financial
interest in the import, manufacture or sale
of drugs or cosmetics shall be appointed
to be an Inspector under this section.

(4) Every Inspector shall be deemed
to be a public servant within the meaning
of Section 21 of the Indian Penal Code
(45 of 1860), and shall be officially
subordinate to such authority having the
prescribed
qualifications,
as
the
Government appointing him may specify
in this behalf."

"33.
Powers
of
Central
Government to make rules. --(1) The
Central
Government
may
after
consultation
with,
or
on
the
recommendation of the Board and after
previous publication by notification in the
Official Gazette, make rules for the
purpose of giving effect to the provisions
of this Chapter:

Provided that consultation with the
Board may be dispensed with if the
Central Government is of opinion that
circumstances have arisen which render it
necessary to make rules without such
consultation, but in such a case the Board
shall be consulted within six months of
the making of the rules and the Central
Government shall take into consideration
any suggestions which the Board may
make in relation to the amendment of the
said rules.

(2)
Without
prejudice
to
the
generality of the foregoing power, such
rule may--

(a) ...........................

(b) prescribe the qualifications and
duties of Government Analysts and the
qualifications of Inspectors;"

15. A conjunctive reading of the
above provisions on its plain reading would
show 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.
There is no scope open to the State
Government for fixing a different or
additional recruitment criteria of Drug
Inspectors. Once the area of primary
legislation is exhausted by the Central
Government and rules are made, the
legislative competence of the State or its
rule making authority stands eclipsed to the
extent of inconsistency. A contrary attempt
made by the State would be clearly
repugnant to the very objects of the law
made by the Central Government. Section
33(1) and (2)(b) read with Section 21 of the
Act clearly postulate that the essential
conditions of recruitment i.e. qualifications
shall
be
prescribed
by
the
Central
Government and this power once exercised
in consultation with the Board leaves no
scope for the State Government to legislate
at variance. The State irrespective of the
powers under Article 246 read with Entry41 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
730 INDIAN LAW REPORTS ALLAHABAD SERIES
envisaged under Section 33(1) of the Act,
1940 cannot be done away with by the
State Government even if there existed a
scope.

16. This 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. The position of law put
forth on the strength of decision in Satpal
Reddy case is distinguishable for the
reason that in the case of Satpal Reddy,
the provisions of the Transport Act stood
at variance and left enough scope for the
State to legislate within the scope of
Section 213 mentioned therein. The
situation in the present case looking to
the mandate of Section 21 read with
Section 33 of the Act, 1940 is different.
In the present case, the Parliament has
firstly exhausted the legislative power on
the subject of prescription of eligibility
qualifications and secondly the law
makes
the
Central
Government
a
repository of such a power leaving no
scope for the State Government to step in
so long as Rule-49 is amended.

17. In my humble consideration,
therefore, the advertisement issued by the
U.P. Public Service Commission on
10.8.2016 as per amended Rule-8 of the
Service Rules lacks authority and being
inconsistent with Rule-49 of the Drugs
and Cosmetics Rules, 1945, the same is
liable to be set aside and is accordingly
set aside. The selection held in pursuance
thereof is also set aside with the liberty
open 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. The U.P.
Public Service Commission being the
selection body, is also expected to
proceed in accordance with law, as
applicable.

18. The writ petition is accordingly
allowed with no order as to cost.
----------
(2021)01ILR A730
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2021

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ -A No. 4577 of 2019

Sonu Yadav ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vijay Gautam, Sri Mohd. Fahad, Sri
Sanjeev Singh, Sri Suresh Bahadur Singh,
Sri Ved Prakash Mishra

Counsel for the Respondents:
C.S.C.

A. Service law - Indian Penal Code,1860-
Section 323/504- Selection on the Police
Constable post - Criminal case against the
candidate - Deliberate concealment of
fact - Effect - No case at the time of
online submission of application - After 2
years, an affidavit declaring pendency of
no criminal case filed - One month earlier
to this affidavit, a N.C.R. was filed against
the candidate, which was informed to the
District
Magistrate
through
second
affidavit after 11⁄2 months - N.C.R. filed
for petty offence under Section 323/504
I.P.C., which has been compounded too -
Held, Concealment of fact relating to the
filing of N.C.R. is not reflected - The
conduct of candidate is fair. (Para 4.05,
4.06 and 4.07)