# Deepak Kumar & Ors v. State of U.P. & Ors

- **Citation:** (2026) 1 ILRA 905
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-01-08
- **Case number:** Writ A No. 82 of 2026
- **Bench:** Mrs. Sangeeta Chandra, Amitabh Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-kumar-ors-v-state-of-u-p-ors-54033
- **Pages:** 11

## Text

1 All. Deepak Kumar & Ors. Vs. State of U.P. & Ors.
905

30. It is further made clear that the trial court is not bound by the observations made by this
Court in this order and is free to form its opinion, in accordance with law, on the basis of pleadings
of the parties and evidence adduced by them during trial.

31. It is apparent that this Court vide order dated 31.3.2023 passed in the instant appeal, had
directed that no third party right shall be created over the property in question. In view of this, both
the parties are restrained from selling, alienating, transferring or creating third party rights in the
disputed property, till the disposal of the suit by the trial court on merits.

32. Office is directed to send back, the original record of the trial court, forthwith.
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(2026) 1 ILRA 905
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.01.2026

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE AMITABH KUMAR RAI, J.

Writ A No. 82 of 2026

Deepak Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Issue for Consideration
(1) Permissibility of requiring additional qualification for the post of Drug Inspector apart from the minimum
qualification prescribed under Rule 49.
(2) Binding effect of Kuldeep Singh's case (Full Bench), wherein, it was held that the experience referred to in
the first proviso to Rule 49 is not an essential qualification, particularly in view of third amendment of
18.11.2015, whereby the experience was made mandatory.

Headnotes
(A) Service law - Drug Inspectors - Qualification - Rule 49 of the Service Rules, 1995 provides
the qualification of Degree in Pharmacy etc. - However, the State Government, vide Third
Amendment of 18.11.2015, also made the experience mandatory - Vires of Third Amendment
was challenged - Kuldeep Singh's case (Full Bench) was relied upon by the petitioner, wherein it
was held that the experience referred to in the first proviso to Rule 49 is not an essential
qualification for appointment as a Drug Inspector - Permissibility. (E-1)
Held : The State Government while amending the U.P. Food and Drug Administration Department Gazetted
Officers' (Drugs) Service Rules, 1995 by the Third amendment introduced additional qualification, which in no
manner has violated the qualifications as prescribed in Rule 49 of the Rules of 1945 - The State Government
can always prescribe additional qualification apart from the minimum qualification prescribed under Rule 49 of
the Drugs and Cosmetic Rules, 1945 for the purpose of recruitment of Drug Inspectors in the Department of
Food Safety and Drug Administration while framing rules in exercise of power under proviso to Article 309 of
the Constitution. [Para 24 and 39]
Further held : The Judgement in the case of Kuldeep Singh is of 10.04.2014 and the Third amendment in
the U.P. Food and Drug Administration Department Gazetted Officers' (Drugs) Service Rules, 1995, is
906 INDIAN LAW REPORTS ALLAHABAD SERIES
subsequent to the decision of Full Bench incorporated by Notification No. 78/2015/1934/88-15-75Oshadhi/10
dated 18.11.2015 - The reliance placed on the Full Bench judgment by learned counsel for the petitioners is
misconceived and untenable in the eyes of law, as the interpretation of the then existing Rules by the Full
Bench cannot be imported to hold the substituted Rules as ultra vires. In fact, the judgment of the Full Bench
in Kuldeep Singh has lost its relevance after the Third Amendment to the Rules, 1995, introduced vide
notification dated 18.11.2015. [Para 19 and 35]

Case Law Cited
Civil Miscellaneous Writ Petition No. 46079 of 2010, Kuldeep Singh and others versus State of U.P. and
another decided on 10.04.2014 (Full Bench); S. Satyapal Reddy and others versus Government of Andhra
Pradesh and others, 1994 (4) SCC 391. - referred to.

List of Acts
Constitution of India - Article 309, proviso - Seventh Schedule, List II, Entry no. 41 - List III, Entry no. 19;
Drugs and Cosmetics Act, 1940 - Section 6(2), 12, 33 and 33N; Drugs and Cosmetics Rules, 1945 - Rule 49,
Proviso; U.P. Food and Drug Administration Department Gazetted Officers' (Drugs) Service Rules, 1995 - Rule
21(1) (a).

List of Keywords
Minimum Qualification, Additional qualification, Essential eligibility criteria, Experience, Vires, Confirmation.

Case Arising From
Advertisement dated 22.12.2025 prescribing the additional qualifications for the post of Drug Inspector.

Appearances for Parties
Advs. for the Appellant : Shireesh Kumar and Utkarsh Kumar.
Advs. for the Respondents : S.C. and Raj Kumar Upadhyaya .

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.
&
Hon'ble Amitabh Kumar Rai, J.)

1. Heard learned Counsel for the petitioners, who are 33 in number, learned Standing Counsel,
who appears on behalf of the State respondents, and Sri Raj Kumar Upadhyaya, learned counsel
appearing on behalf of the respondent no.2.

2. This petition has been filed with the following main prayers:-

"(i) issue a writ order or direction in the nature of mandamus declaring ultra vires the
Rule 8 of "Uttar Pradesh Food and Drug Administration Department, Gazette Officers (Drugs)
Service Rules, 1995 introduced vide notification dated 18.11.2015 as contained in Annexure No.-
1_to this writ petition.

(ii) issue a writ order or direction in the nature of certiorari quashing the qualifications
prescribed under Clauses 2(a) to (c) of Serial No. 4 under the heading Academic Qualifications for
the post of Inspector of Drugs of the advertisement dated 22.12.2025, as contained in Annexure
No.-2 to this writ petition.
1 All. Deepak Kumar & Ors. Vs. State of U.P. & Ors.
907

(iii) issue a writ order or direction in the nature of mandamus commanding the opposite
parties to allow the petitioners to apply for appointment to the post of Drug Inspector in pursuance
to the advertisement no. No. D-6/E-1/2025 dated 22.12.2025

(iv) issue a writ order or direction in the nature of mandamus commanding the opposite
parties to make appointment to the post of Drug Inspectors on the basis of qualifications
prescribed by the Central Government under Rule 49 of the Rules the Recruitment Rules of 2025."

3. It has been submitted by the learned Counsel for the petitioners that the petitioners were
intending to apply for selection and appointment as Drug Inspectors and an advertisement in this
regard has been issued on 22.12.2025, describing the qualifications for the post. However, such
qualifications are in contradiction to the provisions of Section 33N(2)(b) of the Act and Rule 49 of
the Rules of 1945. Therefore, this petition has been filed with the aforementioned prayers.

4. Learned Counsel for the petitioners has submitted that under Section 33N of the Drugs and
Cosmetics Act, 1940 (hereinafter referred to as 'the Act of 1940'), the Central Government has the
power to make rules for the purpose of giving effect to the provisions of the Chapter and under subsection (2)(d), it can prescribe the qualifications and duties of Government Analysts and the
qualifications of Inspectors. The Central Government has made the Rules of 1945 with regard to
the qualifications of Inspectors.

5. Learned Counsel for the petitioners has referred to Rule 49, which provides that a person
may be appointed as an Inspector under the Act if he has a Degree in Pharmacy or a Degree in
Pharmaceutical Sciences or a Degree in Medicine with specialization in Clinical Pharmacology or
Microbiology from a University established in India by law.

6. In the proviso to the said Rule, the Drug Inspectors who may be authorized to inspect the
manufacture or may be authorized to test or inspect the firm's manufacturing substances in
Schedule C of the Act and the Rules have been given, which require 18 months' experience in the
respective domain.

7. It has been submitted by learned Counsel for the petitioners that a Full Bench of this Court
in Civil Miscellaneous Writ Petition No. 46079 of 2010: Kuldeep Singh and others versus State of
U.P. and another, along with the connected matters, was referred two questions by a Division
Bench. They being, 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.

8. Learned Counsel for the petitioners has read out paragraphs-16 and 17 of the said judgment
and also the operative portion wherein the Full Bench has observed that 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 substances specified in Schedule C to the Rules.
908 INDIAN LAW REPORTS ALLAHABAD SERIES

9. It has been submitted that only the Central Government is empowered to lay down the
eligibility criteria or to prescribe qualifications for appointment to the post of Drug Inspectors, and
it has already made Rules in this regard as aforesaid. This fact is also evident from the Notification
made by the Ministry of Health and Family Welfare dated 11.11.2025, notifying the Ministry of
Health and Family Welfare, Central Drugs Standard Control Organization, Drugs Inspector (Group
'B' Post) Recruitment Rules, 2025. The Central Government, in the Schedule to the said Rules, has
given the qualifications as a Bachelor's Degree in Pharmacy or Pharmaceutical Sciences or
Medicine with specialization in Clinical Pharmacology or Microbiology from a recognized
University or Institute.

10. However, the State Government has framed Rules by way of an amendment notified on
18.11.2015, which prescribe an additional qualification for appointment as Drug Inspector. Rule
8(a) mentions 18 months' experience given in the proviso of Rule 49 as an essential criteria for
appointment in addition to the possession of Bachelor's Degree in Pharmacy or Pharmaceutical
Sciences or Medicine with specialization in Clinical Pharmacology or Microbiology or equivalent
from a recognized University.

11. It has been submitted by the learned Counsel appearing for the petitioners that the
observations made by the Full Bench in Kuldeep Singh have been referred to and followed by two
High Courts, i.e., the Delhi High Court and the Patna High Court, and the first proviso has been
held by such High Courts to only prescribe the eligibility for authorization to inspect firm's
manufacturing Schedule C substances as mentioned in the Rules.

12. Learned Counsel for the respondents, on the other hand, has pointed out the judgment
rendered by the Hon'ble Supreme Court in S. Satyapal Reddy and others versus Government of
Andhra Pradesh and others, 1994 (4) SCC 391, wherein the Supreme Court has held that the State
can prescribe additional qualifications for services under it.

13. It has been argued that Public Services is a State subject and under Entry No. 41, List II it
is within the State List of the Seventh Schedule of the Constitution.

14. It has been submitted that only additional and higher qualification in terms of 18 months'
experience has been provided under the Rules and no lower qualification than what has been
prescribed under Rule 49 has been prescribed by the State Government for recruitment of Drug
Inspectors.

15. It has also been stated that several applications have already been received from persons
who possess the essential eligibility criteria and it is not as if there are no persons with 18 months'
experience. In the last two selections held by the respondents, they have selected only persons
having 18 months' experience.

16. Having gone through the judgment rendered by the Full Bench of this Court, we find that
the observations made in paragraph-26 should also be taken into account. Paragraph-26 of the said
judgment is being quoted hereinbelow:-
1 All. Deepak Kumar & Ors. Vs. State of U.P. & Ors.
909

"26. Finally, as we have noted earlier, we may clarify that it is always open to the
legislature or its delegate to suitably amend a statutory provision or, as in the present case,
subordinate legislation to make the holding of the requisite experience as a condition of eligibility
or a qualification for appointment but, that would have to be by an amendment of the subordinate
legislation. As a matter of fact, the attention of the Court has been drawn to a notification dated 27
October 201028, of the Ministry of Health and Family Welfare, Government of India, amending the
recruitment rules for the post of Drug Inspectors in the Central Drugs Standard Control
Organization under the Directorate General of Health Services by making the holding of the
requisite experience as an essential qualification for appointment. The relevant part of the
notification reads as follows:

"Essential : -

(i)Degree in Pharmacy or Pharmaceutical Sciences or Medicine with specialization in
Clinical Pharmacology or Microbiology from a recognized University or equivalent;

(ii)(a) Eighteen months' experience in the manufacture of at least one of the substances
specified in Schedule 'C' to the Drugs and Cosmetics Rules, 1945; or

(b) Eighteen months' experience in testing of at least 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 Drugs Inspector."

No such amendment has been made in Rule 49 of the Drugs and Cosmetics Rules, 1945.
The Rules, as we have interpreted them on their plain and natural meaning as they stand, do not
make the experience, which is stipulated in the first proviso, as a condition of eligibility."

17. The issue before the Full Bench in Civil Miscellaneous Writ Petition No.46079 of 2010:
Kuldeep Singh and others versus State of U.P. and others, was as to 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.

18. The U.P. Food and Drug Administration Department Gazetted Officers' (Drugs) Service
Rules, 1995 earlier provided the qualification for appointment of Drug Inspectors as under:-

"A candidate for direct recruitment to the post o Inspector of Drugs must possess such
qualifications as have been prescribed under rule-49 of the Drugs and Cosmetic Rules, 1945 made
by the Central Government in accordance with the provisions contained in section 21 of the Drugs
and Cosmetics Act, 1940."
910 INDIAN LAW REPORTS ALLAHABAD SERIES

After the third amendment in the year 2015, the said qualification has been substituted as
under:-

"A candidate for direct recruitment to the post of Inspector of Drugs must possess the
following qualifications;-

(i) Degree in Pharmacy or Pharmaceutical Sciences 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 Drgu and Cosmetic 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."

19. The Judgement in the case of Kuldeep Singh (supra) is of 10.04.2014 and the Third
amendment in the U.P. Food and Drug Administration Department Gazetted Officers' (Drugs)
Service Rules, 1995, is subsequent to the decision of Full Bench incorporated by Notification
No.78/2015/1934/88-15-75Oshadhi/10 dated 18.11.2015. The U.P. Food and Drug Administration
Department Gazetted Officers' (Drugs) Service Rules, 1995, have been framed under proviso to
Article 309 of the Constitution of India.20. The Drugs and Cosmetics Act, 1940, is a Central
legislature covered under Entry 19 of the Concurrent List (List III).

21. The Drugs and Cosmetic Rules, 1945, have been framed in exercise of powers conferred
by Sections 6(2), 12, 33 and 33(N) of the Drugs and Cosmetics Act, 1940. Rule 49 prescribes
qualification for appointment of Drug Inspectors and Rule 49 was interpreted by the Full Bench in
the case of Kuldeep Singh to hold that the experience referred to in the first proviso to Rule 49 of
the Drugs and Cosmetics Rules, 1945, is not an essential qualification for appointment as a Drug
Inspector and 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 the substances specified in Schedule 'C'
to the Rules of 1945.

22. The qualification of the Drug Inspector as prescribed in Rule 49 is a minimum
qualification which should have to be adhered to in the appointment of Drug Inspectors and cannot
be ignored.

23. The State Government while amending the U.P. Food and Drug Administration
Department Gazetted Officers' (Drugs) Service Rules, 1995, by the Third amendment issuing
Notification dated 18.11.2015 made the experience mandatory, which is an additional qualification
1 All. Deepak Kumar & Ors. Vs. State of U.P. & Ors.
911
to what Rule 49 of the Drugs and Cosmetic Rules, 1945 prescribes for appointment of a Drug
Inspector.

24. The State Government in its wisdom has introduced the additional qualification as the
Drug inspectors appointed by the State Government have to discharge their duties which also
includes inspection of firms & units manufacturing drugs and other related substitutes which cannot
be faulted upon by merely referring to Rule 49 of the Rules of 1945 as the State Government while
amending the U.P. Food and Drug Administration Department Gazetted Officers' (Drugs) Service
Rules, 1995 by the Third amendment introduced additional qualification, which in no manner has
violated the qualifications as prescribed in Rule 49 of the Rules of 1945.

25. The services under the State Government are the exclusive domain of the State legislature
and falls within Entry 41 of the State List (List II) and as such the State Government is fully
empowered to frame Rules with regard to the services in connection with the State Public Services.

26. The services of Drug Inspectors of the U.P. Food & Drug Administration Department
undisputedly belong to the State Public Services and as such the State Government is fully
empowered to prescribed qualification for the post of Drug Inspectors prescribing additional
qualification to that as provided in Rule 49 of the Rules of 1945.

27. We, therefore, find no reason to issue notice to the learned Advocate General only because
the vires of such amended Rules have been challenged. In fact, we find no merit in the writ petition
and we, therefore, refuse to show any interference as prayed for.

28. Learned Counsel for the petitioners, at this stage, has stated that as per paragraph-26 of the
Full Bench decision of this Court, only the legislature can make amendment to the Rules and the
legislature in this case will be the Central Legislature as per Section 33N of the Drugs and
Cosmetics Act, 1940.

29. We have gone through Section 33N of the Act of 1940, which refers to the power of the
Central Government to make Rules under Chapter IV A. Chapter IV A of the Act refers to the
provisions relating to Ayurvedic, Siddha and Unani drugs and Inspectors relating to Ayurvedic,
Siddha and Unani drugs. Such provision under Section 33N is confined to Chapter IV A of the Act
of 1940. There is no mention in the said Rule or Chapter IV A of the Act of 1940 that the State
Government cannot make Rules for appointment of Drug Inspectors relating to Allopathic
medicine. Although the counsel for the petitioner has only referred to Section 33(N) of the Act of
1940, this Court finds reference of framing Rule with respect to the Allopathic medicine relating to
the appointment of Drug Inspectors under Section 33(2)(b). Thus, under the Drugs and Cosmetic
Rules, 1945 the prescription of minimum qualifications for appointment of Drug Inspectors is
traceable to Rule 33(2)(b) of the Act of 1940.

30. The reliance placed on the Full Bench judgment rendered by the Allahabad High Court in
Kuldeep Singh (supra) by learned counsel for the petitioners while challenging the vires of the
Uttar Pradesh Food and Drug Administration Department Gazetted Officers' (Drugs) Service
(Third Amendment) Rules, 1995, as amended by notification dated 18.11.1995, is also
912 INDIAN LAW REPORTS ALLAHABAD SERIES
misconceived. The issue before the Full Bench was with regard to the interpretation of the then
existing qualifications required for appointment to the post of Drug Inspector in the Food Safety
and Drug Administration Department, Government of U.P.

31. The Full Bench interpreted the then existing Rules and held that the experience required in
the first proviso to Rule 49 of the Drugs and Cosmetics Rules, 1945 was not an essential
qualification for appointment as a Drug Inspector. At that point of time, the Rules, 1995 provided
qualifications under Rule 8 akin to those specified in Rule 49 of the Drugs and Cosmetics Rules,
1945.

32. Subsequently, vide notification dated 18.11.2015, the Rules were amended and the
experience required under Rule 8(ii) was introduced as an additional qualification for appointment
to the post of Drug Inspector, while retaining the minimum qualifications prescribed under Rule 49
of the Drugs and Cosmetics Rules, 1945.

33. The Full Bench, while deciding the issue, took into consideration the then existing Rule
21(1)(a) of the Rules, 1995, which provided for confirmation of a probationer Drug Inspector only
if he had acquired 18 months' experience in testing Schedule C substances in an approved
laboratory, as indicated in paragraph 17 of the Full Bench judgment.

34. Rule 8 has been amended by notification dated 18.11.2015, and correspondingly, Rule 21
of the Rules, 1995, regarding confirmation has also been amended, which now reads as under:-

"21. Confirmation (1) Subject to the provisions of sub-rule (2), a probationer shall be
confirmed in his appointment at the end of the period of probation or the extended period of
probation if?

(a) his work and conduct are reported to be satisfactory;

(b) his integrity is certified; and

(c) the appointing authority is satisfied that he is otherwise fit for confirmation.

(2) Where, in accordance with the provisions of the Uttar Pradesh State Government
Servants Confirmation Rules, 1991, confirmation is not necessary, the order under sub-rule (3) of
Rule 5 of those Rules declaring that the person concerned has successfully completed the probation
shall be deemed to be the order of confirmation."

35. Thus, the reliance placed on the Full Bench judgment by learned counsel for the
petitioners is misconceived and untenable in the eyes of law, as the interpretation of the then
existing Rules by the Full Bench cannot be imported to hold the substituted Rules as ultra vires. In
fact, the judgment of the Full Bench in Kuldeep Singh (supra) has lost its relevance after the Third
Amendment to the Rules, 1995, introduced vide notification dated 18.11.2015.
1 All. Deepak Kumar & Ors. Vs. State of U.P. & Ors.
913

36. Be that as it may, as we have already held above that the State Government while
exercising power under Article 309 with respect to the State Public Services can frame Rules which
cannot be in contravention of the minimum qualifications laid down in Rule 49 of the Drugs and
Cosmetic Rules, 1945, but certainly the State Government can always prescribe additional
qualification apart from the minimum qualification prescribed under the Drugs and Cosmetic
Rules, 1945.

37. The Hon'ble Supreme Court in the case of Dr. Preeti Srivastava and another Vs. State of
M.P. and others, reported in 1999 (7) SCC 120, while dealing with the issue of admission to the
Medical Colleges has noted the terms "Eligibility" and "qualifications" and has held that minimum
standards laid down by the Central statute have to be complied with by the State while making
admissions, however it may in addition lay down other additional norms for admission or regulate
admission in exercise of its powers under Entry 25 List III in a manner not inconsistent with or in a
manner which does not dilute the criteria so laid down by the Central Statute.

Paragraph-39 of the Judgement rendered by Hon'ble Supreme Court in Dr. Preeti Srivastava
(supra), is being quoted hereinbelow:-

"39. The respondents have emphasised the observation that admission has to be made by
those who are in control of the colleges. But, the question is, on what basis? Admissions must be
made on a basis which is consistent with the standards laid down by a statute or regulation framed
by the Central Government in the exercise of its powers under Entry 66 List I. At times, in some of
the judgments, the words "eligibility" and "qualification" have been used interchangeably, and in
some cases a distinction has been made between the two words ? "eligibility" connoting the
minimum criteria for selection that may be laid down by the University Act or any Central statute,
while "qualifications" connoting the additional norms laid down by the colleges or by the State. In
every case the minimum standards as laid down by the Central statute or under it, have to be
complied with by the State while making admissions. It may, in addition, lay down other additional
norms for admission or regulate admissions in the exercise of its powers under Entry 25 List III in
a manner not inconsistent with or in a manner which does not dilute the criteria so laid down."

38. The Hon'ble Supreme Court in the case of S. Satyapal Reddy and others Vs. Government
of Andhra Pradesh and others, reported in 1994 (4) SCC 391, while dealing with the issue
regarding prescription of qualifications for recruitment of officers in the Transport Department, has
held in paragraph-7 as under:-

"7. It is thus settled law that Parliament has exclusive power to make law with respect to
any of the matters enumerated in List I or concurrent power with the State Legislature in List III of
the VIIth Schedule to the Constitution which shall prevail over the State law made by the State
Legislature exercising the power on any of the entries in List III. If the said law is inconsistent with
or incompatible to occupy the same field, to that extent the State law stands superseded or becomes
void. It is settled law that when Parliament and the Legislature derive that power under Article
246(2) and the entry in the Concurrent List, whether prior or later to the law made by the State
Legislature, Article 246(2) gives power, to legislate upon any subject enumerated in the
Concurrent List, the law made by Parliament gets paramountcy over the law made by the State
914 INDIAN LAW REPORTS ALLAHABAD SERIES
Legislature unless the State law is reserved for consideration of the President and receives
his assent. Whether there is an apparent repugnance or conflict between Central and State
laws occupying the same field and cannot operate harmoniously in each case the court has
to examine whether the provisions occupy the same field with respect to one of the matters
enumerated in the Concurrent List and whether there exists repugnancy between the two
laws. Article 254 lays emphasis on the words "with respect to that matter". Repugnancy
arises when both the laws are fully inconsistent or are absolutely irreconcilable and when
it is impossible to obey one without disobeying the other. The repugnancy would arise
when conflicting results are produced when both the statutes covering the same field are
applied to a given set of facts. But the court has to make every attempt to reconcile the
provisions of the apparently conflicting laws and court would endeavour to give
harmonious construction.

The purpose to determine inconsistency is to ascertain the intention of Parliament which
would be gathered from a consideration of the entire field occupied by the law.

The proper test would be whether effect can be given to the provisions of both the
laws or whether both the laws can stand together. Section 213 itself made the distinction of
the powers exercisable by the State Government and the Central Government in working
the provisions of the Act. It is the State Government that operates the provisions of the Act
through its officers. Therefore, sub-section (1) of Section 213 gives power to the State
Government to create Transport Department and to appoint officers, as it thinks fit. Sub -
section (4) thereof also preserves the power. By necessary implication, it also preserves
the power to prescribe higher qualification for appointment of officers of the State
Government to man the Motor Vehicles Department. What was done by the Central
Government was only the prescription of minimum qualifications, leaving the field open to
the State Government concerned to prescribe if it finds necessary, higher qualifications.
The Governor has been given power under proviso to Article 309 of the Constitution,
subject to any law made by the State Legislature, to make rules regulating the recruitment
which includes prescription of qualifications for appointment to an office or post under the
State.

Since the Transport Department under the Act is constituted by the State Government and
the officers appointed to those posts belong to the State service, while appointing its own officers,
the State Government as a necessary adjunct is entitled to prescribe qualifications for recruitment
or conditions of service. But while so prescribing, the State Government may accept the
qualifications or prescribe higher qualification but in no case prescribe any qualification less than
the qualifications prescribed by the Central Government under sub-section (4) of Section 213 of the
Act. In the latter event, i.e., prescribing lesser qualifications, both the rules cannot operate without
colliding with each other. When the rules made by the Central Government under Section 213(4)
and the statutory rules made under proviso to Article 309 of the Constitution are construed
harmoniously, there is no incompatibility or inconsistency in the operation of both the rules to
appoint fit persons to the posts or class of officers of the State Government vis-a-vis the
qualifications prescribed by the Central Government under sub-section (4) of Section 213 of the
Act."
1 All. State of U.P. & Ors. Vs. Ramesh Kumar Singh & Ors.
915

39. In view of the above proposition of law as laid down by Hon'ble Supreme Court, as
applied in the present case, we are of the view that the State Government can always prescribe
additional qualification apart from the minimum qualification prescribed under Rule 49 of the
Drugs and Cosmetic Rules, 1945 for the purpose of recruitment of Drug Inspectors in the
Department of Food Safety and Drug Administration while framing rules in exercise of power
under proviso to Article 309 of the Constitution.

40. Consequently, we hold that Rule 8 of the U.P. Food and Drug Administration Department
Gazetted Officers' (Drugs) Service Rules, 1995 introduced vide Notification No.78/2015/1934/8815-75Oshadhi/10 dated 18.11.2015 is intra vires.

41. The writ petition stands dismissed.

42. No order as to Costs.
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(2026) 1 ILRA 915
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2026

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE ARUN KUMAR, J.

Special Appeal No. 213 of 2025
alongwith other cases

State of U.P. & Ors. ...Appellants
Versus
Ramesh Kumar Singh & Ors. ...Respondents

Issue for Consideration
(1) Scope of Article 21-A of the Constitution of India in reference to the obligation of State to provide financial
aid to the recognized private basic schools and further in reference to the entitlement of the Teachers and
non-teaching staffs of the same schools to claim salary from the State Exchequer.
(2) Binding effect of the law laid down by the Hon'ble Apex Court in Pawan Kumar Dwivedi's case and and by
the Allahabad High Court in Paripurna Nand Tripathi's case in reference to the entitlement of recognized
private Primary School to receive grant-in-aid.

Headnotes
(A) Education law - Grant in aid - Entitlement of private recognized primary school having more
than 50% students belonging to S.C./S.T. - Ground of Article 21-A of Constitution making
obligation on the State to provide free and compulsory education to all children of the age of 614 years was taken - Principal of law laid down by Supreme Court in Pawan Kumar Dwivedi's
case and by Allahabad High Court in Paripurna Nand Tripathi's case was also relied upon in
support of entitlement - Permissibility - Writ Court directed the State to accord grant-in-aid -
Validity challenged by the State. (E-1)
Held : The obligation of the State to provide free and compulsory education, now enacted as fundamental
right, is not to be enforced through such schools for giving recurring grants to meet the expenses of the