# State of U.P v. Zunab Ali and others

- **Citation:** (2010) 3 ILRA 1171
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-29
- **Case number:** Special Appeal No. 804 of 2010
- **Bench:** Pradeep Kant, Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-zunab-ali-and-others-41739
- **Pages:** 4

## Text

3 All] State of U.P. V. Zunab Ali and others
1171
therefore, proper reasoning is foundation
of a just and fair decision. Reference can
be made to Alexander Machinery(Dudley)
Ltd. V Crabtree( 1974 ICR 120) in this
regard. ( Para 68)"

16. Copy of the transfer application
moved by the applicants before the court
below has been filed as Annexure 12 to
the affidavit accompanying the transfer
application. Even the most superficial
reading of the transfer application shows
that the transfer was sought on several
grounds which have already been referred
to by me hereinabove and which need not
be repeated. The learned Sessions Judge ,
refused the prayer for transfer without
making any effort to determine the
veracity of the grounds on which the
transfer was sought and rejected the
transfer application without assigning any
reason.

17. For the aforesaid reasons the order
passed
by
learned
Sessions
Judge,
Moradabad dated 17.9.2010(Annexure 15 to
the affidavit filed in support of the transfer
application), can not be sustained and is
accordingly set aside.

18. The matter is remitted back to the
learned Sessions Judge, Moradabad with a
direction to decide the transfer application
moved by the applicants afresh after
affording opportunity of hearing to all
concerned in accordance with law by a
speaking and reasoned order.

19. Necessary exercise in this regard
shall be completed by him within a period
of one month from the date of production
of certified copy of this order.
---------

APPELLATE JURISDICTION
CIVIL.SIDE
DATED: 29.11.2010 LUCKNOW

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE RITU RAJ AWASTHI, J.

Special Appeal No. 804 of 2010

State of U.P.

...Petitioner
Versus
Zunab Ali and others
 ..Respondents

Drugs and Cosmetics Rules, 1945-Rule
49-Recruitment of Drug Inspector-Post
advertised with minimum qualification
prescribed
under
Rule-Subsequent
corrigendum-modifying
the
original
advertisement deleting experience of 18
months-issued by Commission.-whether
corrigendum
issued
by
commission
without
justification?
held-"No"
experience can be there only after
appointment and not prior to that.

Held: Para 15 and 16

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.

(Delivered by Hon'ble Pradeep Kant, J.)

1. The delay in filing the special
appeal is condoned.

2. Heard learned counsel for the
appellant Sri Manjiv Shukla and Sri
Kapil Dev, learned Senior Advocate,
assisted by Sri Ashwani Kumar for the
1172 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
respondents.

3. 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.

4. 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.

5. 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.

6. Corollary to the aforesaid
argument is that the U.P. Public Service
Commission of its own could not have
changed the essential qualification.

7. 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.

8. 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
pecialization
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)."

9. 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
3 All] State of U.P. V. Zunab Ali and others
1173
State saying that the Commission has no
power
to
modify
the
essential
qualifications, as prescribed.

10. 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.

11. 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]"

12. 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.

13. 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.

14. The proviso attached to the
aforesaid Rule is only the prescription of
1174 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
experience
of
18
months
to
the
Inspectors already appointed for being
entrusted the job of inspection.

15. 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.

16. 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.

17. 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.

18. The U.P. Public Service
Commission since had incorrectly issued
the advertisement laying down subclause (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.

19. We thus, do not find any ground
to interfere with the orders passed by the
learned Single Judge.

20. The special appeal is dismissed.
---------

APPELLATE.JURISDICTION
CRIMINAL.SIDE
DATED: LUCKNOW 30.11.2010

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.

Case: - U/S 482/378/407 No. 810 of 2006

Jai Prakash Tripathi, Advocate and
others

 ...Petitioners
Versus
State Of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Chandra Bhushan Pandey,
Sri Rohit Tripathi

Counsel for the Respondents:
Govt. Advocate,
Sri U.C.Tripathi,
Sri Umesh Chandra Pandey

Criminal Procedure Code-Section 482application
for
quashing
order
of
summoning
offence
under
Section
420,467,468
CPC-on
allegation
no
offence made out-held the question be
raised at the time of framing chargedirection to consider bail application in
view of full bench decision of Amrawati
case-further clarified in Sheoraj Singh
Case.

Held: Para 7

However, in the circumstances of the
case,
it
is
provided
that
if
the
petitioners move an application for
surrender before the court concerned
within thirty days from today, the
Magistrate concerned shall fix a date
about two weeks thereafter for the
appearance of the petitioners and in the
meantime release the petitioners on
interim
bail
on
such
terms
and
conditions
as
the
court
concerned
considers fit and proper till the date
fixed for the disposal of the regular bail.
The court concerned shall also direct