# D.K. Joshi v. The State of U.P. and others

- **Citation:** (2001) 1 ILRA 287
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/d-k-joshi-v-the-state-of-u-p-and-others-39712
- **Pages:** 6

## Text

1All] D.K. Joshi V. The State of U.P. and others
287
prosecution witnesses. The petitioner is an
eye witness of the incident and he
happens to be real uncle of one of the
deceased. On facts, the case is entirely
covered by para 7 of the G.O. It is averred
in para 8 of the writ petition that
Superintendent of Police, Jaunpur has not
complied with the order passed by the
learned IIIrd Addl. Sessions Judge on
account of some oblique motive. Certain
allegations have also been made against
the Superintendent of Police but we do
not want to go into that question. In view
of the fact that the case of petitioner is
covered by para 7 of the G.O. and also
that there is direction given by the learned
IIIrd
Addl.
Sessions
Judge,
the
Superintendent of Police, Jaunpur ought
to have provided security to the petitioner.
The inaction of the authority in not
providing security to the petitioner in the
facts and circumstances of the case, is not
justified.

5. The record shows that the
petitioner has filed a transfer application
in this Court being Criminal Misc.
(Transfer) Application no.310 of 2000
seeking transfer of the case from Jaunpur
to some other place on the same ground
namely that there is apprehension to the
life of the petitioner. Sri Ranjit Saxena
learned counsel for the petitioner has
given an undertaking that in view of the
order which we propose to pass in the
present writ petition, the petitioner will
get the transfer application dismissed so
that the trial may proceed.

6. The writ petition is accordingly,
allowed. A writ mandamus is issued
commanding the respondents nos. 1,2,4,5
and 6 to provide two armed guards to the
petitioner
for
his
security
till
the
prosecution evidence in S.T. no.340 of
1998 pending in the court of learned IIIrd
Addl.
Sessions
Judge,
Jaunpur
is
concluded.

7. Office is directed to place a copy
of this order on the record of Criminal
Misc. (Transfer) Application no.310 of
2000.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$' '(&(0%(5
'$7(' $//$+$%$' '(&(0%(5
%()25(
%()25(
7+( +21·%/( %,12' .80$5 52< -
7+( +21·%/( %,12' .80$5 52< -
7+( +21·%/( $. <2* -
7+( +21·%/( $. <2* -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

'. -RVKL
«3HWLWLRQHU
9HUVXV
7KH 6WDWH RI 83 2WKHUV«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL 81 6KDUPD
6KUL 6XQHHW .XPDU
&RXQVHO IRU WKH 5HVSRQGHQWV
6KUL 6DEKDMHHW <DGDY
6&

'UXJV DQG &RVPHWLF 5XOHV ± WKRVH
SHUVRQV FDQ EH DSSRLQWHG DV /LFHQFLQJ
$XWKRULW\ DQG &RQWUROOLQJ $XWKRULW\ ZKR
DUH
KDYLQJ
UHTXLVLWH
TXDOLILFDWLRQV
LQ
WHUPV RI 5XOHV $ DQG $ RI WKH
5XOHV +HOG LQ SDUD
6XFK &KLHI 0HGLFDO 2IILFHUV ZKR KDYH
QRZ EHHQ FRQIHUUHG WKH DXWKRULW\ WR DFW
DV /LFHQFLQJ DQG &RQWUROOLQJ $XWKRULWLHV
XQGHU WKH 5XOHV ZKR GR QRW SRVVHVV WKH
UHTXLUHPHQWV
ODLG
GRZQ
E\
WKH
/HJLVODWXUH
FDQQRW
EH
DOORZHG
WR
IXQFWLRQ DV VXFK ,I WKLV LV DOORZHG WR
FRQWLQXH LW LV ERXQG WR HQGDQJHU WKH
KHDOWK RI WKH SHRSOH EHVLGHV EUHDFK RI
WKH
DYRZHG
REMHFW
IRU
ZKLFK
WKH
/HJLVODWXUH KDG SURFHHGHG WR HQDFW WKH
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
288
'UXJV DQG &RVPHWLFV $FW DQG WKH 5XOHV
IUDPHG
XQGHU
WKDW
$FW
7KLV
&RQVWLWXWLRQDO &RXUW LQ WKDW EDFNGURS
FRXOG QRW EHFRPH D VLOHQW VSHFWDWRU DQG
WKHUHE\ LQGLUHFWO\ EHFRPH D SDUW\ WR
DOORZ FRQWLQXDQFH RI WKH EUHDFK RI WKH
VDFUHG &RQVWLWXWLRQDO PDQGDWH HQVKULQHG
XQGHU $UWLFOH RI WKH &RQVWLWXWLRQ RI
,QGLD DQG WKH DYRZHG REMHFW RI WKH $FW
DQG WKH 5XOHV

By the Court

1. The prayer of the petitioner is to
command the Respondents (I) to restrain
the Chief Medical Officers of this State to
act
as
Licencing
and
Controlling
Authority who are not qualified under the
Drugs & Cosmetic Rules, 1945 framed
under the Drugs & Cosmetics Act, 1940
(hereinafter referred to as the Rules and
the Act respectively for the sake of
brevity); (ii) to cancel the licences issued
to such persons who are not qualified
under the Rules after 12th April, 1989; and
(iii) to award costs to him.

2. The petitioner claims to be a
social worker and having interest in the
welfare of the public at large specially for
those of the District Agra who are being
subjected
to
consumption
of
drugs
distributed by such persons who are not
authorised to distribute the same under the
law; he has no rivalry - direct or indirect
-
against
the
Respondents
nor
is
connected in any manner with them; the
Act contemplates to regulate the import,
manufacture, distribution and sale of
Drugs & Cosmetics and for maintenance
of their high standard and its main object
is to prevent import etc. of the substandard drugs and intends to eradicate
such drugs; in the year 1945 the Rules
were framed under the Act; our State
Legislature passed an Amendment Act
No. 47 of 1975 amending the provisions
of (I) the Indian Penal Code, (ii) the Code
of Criminal Procedure, (iii) the Prevention
of Adulteration of Food and (iv) the
Drugs and Cosmetics Act for providing
deterrent punishment for offences relating
thereto; the State Government while
exercising its power under sub-rule (I) of
Rule 59 of the 1945 Rules vide
Notification No. 1022/XVI-X-XII(67)-76
dated March 24, 1977 was pleased to
appoint all the Chief Medical Officers of
the State in respect of whole of the
District in which they were posted
including Nagar Maha Palikas, Nagar
Palikas, Notified Areas and Town Areas
as Licencing Authority as per Part VI of
the Rules, as also the Controlling
Authority under Rule 50 of the Rules;
Vide Rule 49-A the qualifications for the
Licencing Authority were laid down to
the effect that no person shall be qualified
to be a Licencing Authority under the Act
unless he is a graduate in Pharmacy or
Pharmaceutical Chemistry or in Medicine
with
specialisation
in
clinical
Pharmacology or Microbiology from a
University established in Indian by law
and has experience in the manufacture or
testing of drugs or enforcement of the
provisions of the Act for a minimum
period of five years provided that the
requirements
as
to
the
academic
qualification shall not apply to those
Inspectors and Government Analysis,
who were holding those positions on the
12th day of April, 1989; vide Rule 50-A
the
qualification
of
a
Controlling
Authority was prescribed laying down
that no person shall be qualified to be a
Controlling Authority under the Act
unless he is a graduate in Pharmacy or
Pharmaceutical Chemistry or in Medicine
with
specialisation
in
Clinical
Pharmacology or Microbiology from a
1All] D.K. Joshi V. The State of U.P. and others
289
University established in India by law and
has experience in the manufacture or
testing of drugs or enforcement of the
provisions of the Act for a minimum
period of five years provided that the
requirements
as
to
the
academic
qualification shall not apply to those
Inspectors and the Government Analysts
who were holding those positions on the
12th day of April, 1989; Rules 49-A and
50-A aforementioned came into force
with effect from 12th April, 1989; the
aforesaid Rules have been accepted by
our State as no amendment to the contrary
has been made till date; Part VI of the
Rules lays down provisions for the sale of
drugs other than Homeopathic medicines,
conditions for grant or renewal of the
licences to sale, stock, exhibit or offer for
sale, or distribute drugs other than those
included in Schedule X which shall be
made in Form 19 or Form 19-A, as the
case may be, or in the case of drugs
included in Schedule X, shall be made in
Form 19-C to the Licencing Authority and
shall be accompanied by a fee of Rupees
Forty; Rule 59(1) states that the State
Government
shall
appoint
Licencing
Authority for the purposes of Part VI for
such areas as may be specified; Rule 65
lays down the conditions of licence; Rule
65(2) states that the supply, otherwise
than by way of wholesale dealing of any
drugs supplied on the prescription of a
Registered Medical Practitioner shall be
effected only by or under the personal
supervision of a qualified person; thus, it
is relevant that the supply of drugs by
retail sale of the prescription of the
Registered Medical Practitioner may be
done under the personal supervision of the
qualified person; Rule 65(15)(c)(ii) lays
down that the "qualified person" means a
person who (a) holds a Diploma or
Degree in Pharmacy or Pharmaceutical
Chemistry of an Institute approved by the
Licencing Authority, or (b) is a registered
Pharmacist, as defined in the Pharmacy
Act, 1948; it is thus evident from the
scheme of the Drugs and Cosmetics Act
and the Rules made thereunder that the
stock and sale of the drugs shall be strictly
under the supervision of a qualified
person and further the licences for the
retail sale and wholesale should be
granted by Licencing Authority for whom
the
Rule
specifically
provides
the
qualifications with a view that a person
having
knowledge
in
Drugs
and
Cosmetics should be a person who is
qualified under the Rules acting as a
Licencing Authority; in our State there are
such Licencing Authorities, who do not
possess the minimum qualification as
required under Rules 49-A and 50-A the
names and place of postings of such
persons are disclosed in Paragraph 20 of
this writ petition; in State of Agra there
were 167 registered Pharmacists in the
year
1984
and
approximately
200
registered Pharmacists are presently in the
city and approximately 1600 licences
have been granted to the retailers and it is
not understandable how such a few
qualified persons take the licence to the
extent of 10 times of the qualified
persons; similar is the position in the
remaining 62 Districts of the State; the
gravity of the situation became all the
more alarming when the demographic to
the population of the State is taken into
account, as per the latest census almost
50% of the population of this State are
living below the poverty line and are
illiterate, the illiteracy being 30% which
were highlighted by publication in various
News Papers viz. Amar Ujala dated
17.11.1992 and 19.12.1992, Jansatta
dated 15.1.1993, Dainik Jagran dated
19..1993 and Aaj dated 20.3.1993, copies
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
290
of which are Annexures 1 to 5; in Writ
Petition No. 00 of 1990, Vijai Kumar
Versus Inspector of Drugs, Range Chatiya
Azam Khan, Agra, filed in the year 1990,
this Court vide its order dated 9.2.1990
held that the Rules are applicable to the
Chief Medical Officers of this State, but
directed the petitioner Vijai Kumar to file
an Appeal under Rule 66 before the State
Government with a direction to decide it
within a reasonable times, pursuant to
which the State Government, vide its
order dated 17.2.1990, as contained in
Annexure-7, held that the Chief Medical
Officer, Agra does not possess the
minimum qualification under Rule 49-A
and is, thus, not competent to act as
Licencing
Authority,
which
is
also
applicable to other Chief Medical Officers
of the State; under Article 47 it is the duty
of the State Government to improve the
health and healthy life of the public which
means that the State Government cannot
subject the public health of such a large
number of persons and maintenance of
health which having being guaranteed
under Article 21 of the Constitution of
India and in the facts and circumstances it
would be expedient in the interest of
justice that the commands prayed for be
issued.

3. The record discloses that before
admission also this case was adjourned
time and again awaiting filing of Counter
Affidavit and ultimately taking into
account the non-filing of any Counter
Affidavit the Bench (comprising one of
us, Binod Kumar Roy, J.) proceeded to
admit this writ petition on 16.11.1998
giving liberty to the Standing Counsel to
file Counter Affidavit, if any, by 5th
January, 1999. No Counter Affidavit has
been filed till to date.

4. Sri U.N. Sharma, learned counsel
appearing in support of the prayers made
in this public interest writ petition,
contended as follows :

In view of the amendments made in
the Rules, with effect from 12th April,
1989 only those persons can be appointed
as Licencing Authority and Controlling
Authority
who
are
having
requisite
qualifications in terms of rules 49-A and
50-A of the Rules and even though the
Government took a decision in relation to
Agra that the Chief Medical Officer, Agra
was lacking such qualifications, yet it has
adopted
a
callous
attitude
in
not
appointing
such
Licencing
and
Controlling Authorities as required under
the Rules rather had illegally proceeded to
appoint the Chief Medical Officers of
various Districts enumerated in paragraph
20 of the writ petition to function as
Licencing and Controlling Authorities
apparently contrary to the Rules and, thus,
it is a high time that the Government be
appropriately directed to conform the
standards prescribed, and abide by the
Rules.

In support of this submissions he
also referred to a common Judgment of
the Supreme Court dated September, 19,
1988 in Civil Appeal No. 757 of 1984,
Dr. M.C. Bindal Versus R.C. Singh and
others, Writ Petition No. 750 of 1986, Dr.
R.C. Bindal v. The U.P. Public Service
Commission, Allahabad & another, Civil
Appeal No. 3926 of 1986, Sadan Kumar
Majumdar v. The State of U.P. & others
and Civil Appeal No. 798 of 1984, State
of Uttar Pradesh v. Ram Chander Singh &
others and, yet another Judgment of the
Supreme Court dated August 25, 1999 in
Civil Appeal No. 3369 of 1997, Bhagwan
1All] D.K. Joshi V. The State of U.P. and others
291
Singh & another v. State of Punjab &
others.

5. Sri Sabhajeet Yadav, learned
Standing Counsel appearing on behalf of
the Respondents, on the other hand,
contended as follows :

This writ petition be thrown out on
the ground that such Chief Medical
Officers whose appointed as Licencing
and Controlling Authorities is under
challenge
do
not
possess
requisite
qualifications laid down by the rules have
not been impleaded as Party-Respondents.
While making this submission Sri Yadav
placed reliance on these decisions of the
Supreme Court - (i) Prabodh Verma v.
Dal Chand and others, A.I.R. 1985 S.C.
167, (ii) J. Joshe Dhanaplaul v. S.
Thomas, 1996 (3) S.C.C. 587 and (ii)
Ishwar Singh v. Kuldip Singh 1995
Supplement (1) S.C.C. 179. He has
informed that he has no instructions on
behalf
of
the
Respondents
except
Respondent No. 4 the Chief Medical
Officer, Agra, and that he is taking this
objection in regard to maintainability of
this writ petition on his behalf only.

6. The main prayer of the petitioner
is to command the Respondents to restrain
such Chief Medical Officers of this State
who have been authorised to act as
Licencing
and
Controlling
Authority
under the Act on the ground that they do
not possess requisite qualifications laid
down under the Rules so that the avowed
constitutional mandate enshrined under
Article 21 of the Constitution of India
under which this State is bound to
safeguard the health of the people of this
State and the objects of Act be achieved
and not to quash the appointments of
those unqualified Chief Medical Officers.
The facts state by the writ-petitioner have
not been countered by the Respondents by
filing
any
Counter
Affidavit.
The
Legislative intent, in the absence of any
contrary amendment by our State, has to
be followed in terms and spirit by all
concerned. The two decisions of the
Supreme Court relied upon by Sir Sharma
do support his submissions. Therefore,
such Chief Medical Officers who have
now been conferred the authority to act as
Licencing and Controlling Authorities
under the Rules, who do not possess the
requirements
laid
down
by
the
Legislature, cannot be allowed to function
as such. If this is allowed to continue it is
bound to endanger the health of the
people besides breach of the avowed
object for which the Legislature had
proceeded to enact the Drugs and
Cosmetics Act and the Rules framed
under that Act. This Constitutional Court,
in that backdrop could not become a silent
spectator and thereby indirectly become a
party to allow continuance of the breach
of the sacred Constitutional mandate
enshrined
under
Article
21
of
the
Constitution of India and the avowed
object of the Act and the Rules. We do
not see any merit in the preliminary
objection raised by Sri Yadav or legal
impediment so as to restrain ourselves in
not restraining the Respondents from not
abiding the Rules aforementioned. The
three decisions relied upon by Sri Yadav
do
not
apply
to
the
facts
and
circumstances of the instant writ petition.

7. We presume that the Government
must be having complete dates to find out
objectively as to which of those Chief
Medical Officers are duly qualified under
the Rules or not and, accordingly, over
ruling the preliminary objection as being
of without any substance, command the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
292
Respondents
to
restrain
such
Chief
Medical Officers of this State, who do not
possess the qualifications aforementioned
to act as Licencing and Controlling
Authority under the Rules, besides to
cancel the licences issued after 12th April,
1989 to those persons who are not
qualified under the Rules. Let a writ of
mandamus issued accordingly.

8. As award for costs to the
petitioner was not pressed by Sri U.N.
Sharma, we do not grant it.

9. The office is directed to hand over
a copy of this order to Sri Sabhajeet
Yadav, learned Standing Counsel, by 23rd
December, 2000 for its intimation to and
follow up action at once by the State by
the appropriate authority.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7('7+( $//$+$%$'
'$7('7+( $//$+$%$'
%()25(
%()25(
7+( +21·%/( 90 6$+$, -
7+( +21·%/( 90 6$+$, -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

6UL 6KUL 3DO
«3HWLWLRQHU
9HUVXV
6WDWH RI 83 RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL <RJHVK .XPDU 6D[HQD
&RXQVHO IRU WKH 5HVSRQGHQWV
6&

$UWLFOH RI WKH &RQVWLWXWLRQ RI ,QGLD
PHUHO\
EHFDXVH
SHUPLVVLRQ
KDV EHHQ
JUDQWHG WR WHDFK VRPH VXEMHFWV LQ WKH
LQVWLWXWLRQ
LW
ZRXOG
QRW
DPRXQW
WR
FUHDWLRQ RI SRVW WKHUHIRUH XQOHVV WKH
SRVW LV FUHDWHG XQGHU VHFWLRQ RI WKH
6DODULHV $FW QR VDODU\ FRXOG EH
SDLG WR WKH DVVLVWDQW WHDFKHU +HOG LQ
SDUD
7KH SRVW RI DVVLVWDQW WHDFKHU KDG
QRW EHHQ FUHDWHG LQ WKH LQVWLWXWLRQ XQGHU
VHFWLRQ RI WKH 6DODULHV $FW ,Q DEVHQFH
RI DQ\ FUHDWLRQ RI SRVW WKH SHWLWLRQHU
FRXOG QRW EH SDLG DQ\ VDODU\ IURP WKH
JUDQW LQ DLG UHFHLYHG E\ WKH LQVWLWXWLRQ
(YHQ WKRXJK SHUPLVVLRQ WR RSHQ D QHZ
VHFWLRQ ZDV JUDQWHG LQ EXW WKDW E\
LWVHOI
ZDV
QRW
VXIILFLHQW
,W
ZDV
LQFXPEHQW RQ WKH PDQDJHPHQW WR KDYH
DSSOLHG WR WKH 'LUHFWRU IRU FUHDWLRQ RI
SRVW ,Q WKH DEVHQFH RI DQ\ FUHDWLRQ RI
SRVW LW FRXOG QRW EH GHHPHG WKDW D SRVW
RI DVVLVWDQW WHDFKHU KDV EHHQ FUHDWHG LQ
WKH
LQVWLWXWLRQ
0HUHO\
EHFDXVH
SHUPLVVLRQ KDV EHHQ JUDQWHG WR WHDFK
VRPH VXEMHFWV LQ WKH LQVWLWXWLRQ LW ZRXOG
QRW
DPRXQW
WR
FUHDWLRQ
RI
SRVW
WKHUHIRUH XQOHVV WKH SRVW LV FUHDWHG
XQGHU VHFWLRQ RI WKH 6DODULHV $FW
QR VDODU\ FRXOG EH SDLG WR WKH DVVLVWDQW
WHDFKHU

By the Court

1. Sri Raghuvar Singh Samta
Vidyalay, Auraiya is a recognised and
aided
institution
under
the
U.P.
Recognised Basic School (Junior High
School Recruitment and Conditions of
Service of Teachers) Rules, 1978 (in brief
Rules 1978). The institution is managed
by a private committee of management
and is not maintained by the Board.
Therefore, the provisions of U.P. Junior
High School (Payment of Salaries of
Teachers and other Employees) Act, 1978
(in brief Salaries Act) is applicable. The
service condition of teachers working in
the institution are governed by Rules
1978.

2. The institution was granted
permission on 30.7.1988 to open a new
section. But no posts were created or
sanctioned by the Director, as provided by