# U.P.P.S.C v. Ashish Tyagi & Ors

- **Citation:** (2026) 4 ILRA 646
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-03
- **Case number:** Special Appeal No. 163 of 2021
- **Bench:** Rajan Roy, Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-p-s-c-v-ashish-tyagi-ors-54465
- **Pages:** 13

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646 INDIAN LAW REPORTS ALLAHABAD SERIES
of an order, or the authority has proceeded in a wrong presumption which is erroneous in law, as
in the present case, question of law arises and when the said contention is found to be correct, then
the order is perverse. A factual decision is perverse when it is without any evidence or when the
factual decision, in view of the fact on record, cannot be reasonably entertained. Finding based
upon surmises, conjectures or suspicion or when they are not rationally possible have to be struck
down. In CIT v. S.P. Jain (1973) 87 ITR 370 (SC) it has been observed that a factual conclusion is
regarded as perverse when no person duly instructed or acting judicially could upon the record
before him, have reached the conclusion arrived at by the tribunal/authority."

11. As a sequel to the aforesaid judgment of the Hon'ble Supreme Court and High Court, we
are of the view that unless there is perversity in the findings of fact, no substantial questions of law
would arise. Further more, as far as the present case is concerned, we find that findings of the
Tribunal are supported by cogent evidence brought on record and they are not in any manner
against law or suffers from any procedural irregularities.

12. Thus, we are unable to subscribe to the view of the learned counsel appearing for the
revenue and reject that there is any perversity in the impugned judgment of the Tribunal. We hold
that the findings are based on the available records that clearly indicates that the cash deposited in
the banks was only the cash in hand available with the assessee. In the judgment of a Co-ordinate
Division Bench of this Court one of us (Hon'ble Shekhar B. Saraf,J.) examined an identical issue
wherein the Bench after examining a catena of judgments of Hon'ble Supreme Court and High
Court categorically held in Pr. CIT, Bareilly, UP Vs. Dharam Singh; (2025) 342 CTR 653: 245
DTR 369 (Allahabad High Court) that unless there is perversity in findings of fact, no substantial
questions of law would arise.

13. In the present case, keeping in view the findings arrived at by the Tribunal to be in great
detail and based on evidence brought on record by the assessee, we do not find any perversity
whatsoever nor any substantial questions of law arises, which is required to be decided.

14. Accordingly, the appeal is dismissed.
----------
(2026) 4 ILRA 646
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.04.2026

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE MANJIVE SHUKLA, J.

Special Appeal No. 163 of 2021
With Writ A No. 8721 of 2021

U.P.P.S.C. ...Appellant
Versus
Ashish Tyagi & Ors. ...Respondents
4 All. U.P.P.S.C. Vs. Ashish Tyagi & Ors.
647
Issue for Consideration
(1) Competence of State government to make rules to prescribe the qualification for the post of Drug
Inspector under the Drugs and Cosmetics Act, 1940.
(2) Vires of the Rule 8 of the U.P. Food and Drug Administration Department Gazetted Officers (Drug) Service
(Third Amendment) Rules, 2015.

Headnotes
(A) Service law - Selection - Post of Drug Inspector - Qualification - Central government
prescribed the qualifications vide Rule 49 of the Rules, 1945 made u/s 33(2)(b) r/w S. 21(1) of
the Act, 1940 - However, the State government also framed the Rule 8 of the Rules, 2015
prescribing the qualification - Competence of State government to make rules and vires of Rule
8 was challenged - Writ court vide impugned judgment, quashed the selection - Validity
challenged: (E-1)
Held: The State of U.P. lacks the competence to prescribe qualification for the post of Drug Inspector in view
of Section 21(1) r/w Section 3(i) of the Act, 1940. Further, the Central Government, which is competent in this
regard, has already prescribed the qualifications vide Rule 49 of the Rules, 1945 made under Section 33(2)(b)
read with Section 21(1) of the Act, 1940. Apparently, under Rule 8, though, the essential qualifications as
mentioned in Rule 49 of the Rules, 1945 have been mentioned but the proviso to Rule 49, which is not part of
the essential qualifications prescribed by the Central Government, has been incorporated by the State
Government in Rule 8 as an essential qualification which it could not have done - We, accordingly, declare
Rule 8(ii)(a) to (c) of the Rules, 1945 as ultra vires. [Para 13 and 18]
Further held: Selection in pursuance to the said advertisement has already been completed and persons
have been appointed, we, therefore, do not find it reasonable to quash the advertisement and selection held
in pursuance thereof, especially as, those selected do possess the essential qualifications prescribed by the
Central Government, and in addition to it, they also fulfill the requirements in the proviso to Rule 49,
therefore, these reliefs are declined. [Para 19]

Case Law Cited
State of Haryana vs. Krishan Kumar and others, 2026 INSC 63; S. Satyapal Reddy and Others vs. Government
of Andhra Pradesh and others, 1994 (4) SCC 391; Writ A No. 82 of 2026, Deepak Kumar & 32 others vs. State
of U.P. & another decided on 08.01.2026; Civil Appeal 10389 of 2024, Chandra Shekhar Singh vs. State of
Jharkhand decided on 28.03.2025 - referred to.

List of Acts
Constitution of India - Article 309, Entry 19 of the Concurrent List of the Seventh Schedule; Drugs and
Cosmetics Act, 1940 - Ss 3(i), 21 and 33; U.P. Food and Drug Administration Department Gazetted Officers
(Drug) Service (Third Amendment) Rules, 2015 - Rule 8.

List of Keywords
Selection, Essential qualification, Certiorari, Mandamus, Exercise of power, Recruitment, Condition of service,
Competence, Intra vires, Utra vires, Advertisement, Requirement, Inequitable, Unjust, Public employment,
Prejudice, Prescription of qualification.

Case Arising From
Judgment and order dated 08.01.2021 passed in Writ Petition No. 262 (S/S) of 2021.

Appearances for Parties
Advs. for the Appellant: Raj Kumar Upadhyaya, Nishant Shukla (ACSC).
Advs. for the Respondents: Anurag Shukla (Sr. Adv.), Vineet Kumar Pandey, Pt. S. Chandra, Purnima
Mayank.

(Delivered by Hon'ble Rajan Roy, J.
648 INDIAN LAW REPORTS ALLAHABAD SERIES
&
Hon'ble Manjive Shukla, J.)

1. Heard Shri Anurag Shukla, learned Senior Advocate assisted by Shri Vineet Kumar Pandey,
learned counsel for the respondent-petitioner, Shri R.K. Upadhyaya, learned counsel for the
Commission and Shri Nishant Shukla, learned Additional Chief Standing Counsel appearing on
behalf of the State.

2. There are two cases before us. One is Special Appeal No. 163 of 2021 filed by the U.P.
Public Service Commission challenging a judgment and order dated 08.01.2021 passed in Writ
Petition No. 262 (S/S) of 2021 by which the selection to the post of Drug Inspector which was
advertised on 10.08.2016 has been quashed. The other case is Writ A No. 8721 of 2022 filed by the
petitioners wherein the vires of Rule 8 of U.P. Food and Drug Administration Department Gazetted
Officers (Drug) Service (Third Amendment) Rules, 2015 (hereinafter referred to as 'the Rules,
2015') has been challenged apart from seeking a writ of Certiorari for quashing the advertisement
dated 18.05.2018 for the post of Drug Inspector. A Mandamus has also been sought for issuance of
fresh advertisement for direct recruitment to the aforesaid post as per essential qualifications
prescribed under the statutory rules i.e. Rule 49 of the Drugs and Cosmetics Rules, 1945. The
petitioners of this writ petition are respondents in the special appeal referred above, meaning
thereby, they were petitioners in the writ petition out of which the said special appeal arises.

3. First and foremost, we will consider the relief prayed in the writ petition, specially with
regard to the vires of Rule 8 of the Rules, 2015. Rule 8 of the Rules, 2015 reads as under:-

"8. Acadamic qualification

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 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 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.

4. These rules have been made by the State Government in exercise of its powers under the
proviso to Article 309 of the Constitution of India. Article 309 of the Constitution of India reads as
under:-

"309. Recruitment and conditions of service of persons serving the Union or a State -
Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the
4 All. U.P.P.S.C. Vs. Ashish Tyagi & Ors.
649
recruitment, and conditions of service of persons appointed, to public services and posts in
connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such person as he may direct in
the case of services and posts in connection with the affairs of the Union, and for the Governor of a
State or such person as he may direct in the case of services and posts in connection with the
affairs of the State, to make rules regulating the recruitment, and the conditions of service of
persons appointed, to such services and posts until provision in that behalf is made by or under an
Act of the appropriate Legislature under this Article, and any rules so made shall have effect
subject to the provisions of any such Act."

5. As would be evident from a bare reading of the aforesaid Article, recruitment and
conditions of service of persons appointed to public services and posts in connection with the
affairs of the Union or of any State are to be regulated by Acts of appropriate legislature, subject to
the provisions of the Constitution. It is not out of place to mention that the post of Drug Inspector is
covered within the meaning of the term "Public Services" and is a post in connection with the
affairs of the State of Uttar Pradesh. The proviso to Article 309 permits making of rules regulating
recruitment and conditions of service of such persons, as referred hereinabove, until provision in
that behalf is made by or under an Act of the appropriate legislature under Article 309 and any
rules so made shall have effect, subject to the provisions of any such act. Thus, the rule making
power vested with the State Government under the proviso to Article 309 is to be exercised, firstly,
when such recruitment and conditions of service are not regulated by any enactment of an
appropriate legislature. Secondly, such rules are subject to the provisions of any such enactment.
The law in this regard is very well settled that if recruitment and conditions of service have been
regulated by an enactment of an appropriate legislature and on the same subject there are rules
which are in conflict with the enactment, then the enactment will prevail. Further, if any rules have
been made under an enactment then they will prevail over a rule made under the proviso to Article
309, if the said rule has not been made under any enactment. We may in this regard refer to a recent
judgment of Hon'ble the Supreme Court rendered in Civil Appeal No. 1725-1731 of 2023 and
connected matters, State of Haryana Vs. Krishan Kumar.

6. Now, the contention of the counsel for the petitioner in the case at hand is that as regards
recruitment and conditions of service on the post of Drug Inspector is concerned, the post finds
mention in a central enactment i.e. Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the
Act, 1940') which is referable to Entry 19 of the Concurrent List of the Seventh Schedule of the
Constitution of India. Section 21 thereof, reads as under:-

"21. Inspectors. - (1) The Central Government or a State Government may, by
notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed
qualifications, to be Inspectors for such areas as ma 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.
650 INDIAN LAW REPORTS ALLAHABAD SERIES

(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."

7. On a reading of Sub-section 1 of Section 21, it is evident that the qualifications for the post
of Inspector i.e. Drug Inspector have to be such as are prescribed. Now, the word 'prescribed' has
been defined in Section 3(i) of the Act, 1940 to mean 'prescribed by rules made under the Act,
1940'. Reliance has then be placed upon Section 33 of the same act which mentions the power of
the Central Government to make rules. Section 33(2)(v) empowers the Central Government
specifically to make rules prescribing the qualifications of Inspector i.e. Drug Inspector. The
general powers are also vested in the Central Government under Sub-Section 1. It may be pointed
out at this stage that under the Act, 1940 there is no provision vesting any power in the State
Government for prescribing qualification of Inspectors. Section 38 of the Act, 1940 prescribes the
procedure as to how a rule made under Section 33 would be laid before the Parliament etc..

8. As, drugs and cosmetics is referable to Entry 19 of the Concurrent List of the Seventh
Schedule of the Constitution of India, the State also has power to legislate over the subject.
However, the State of Uttar Pradesh has not promulgated any such enactment pertaining to drugs
and cosmetics that is the subject matter over which a central enactment i.e. the Act, 1940, exists. As
already stated, the State Government has not been vested with any power to make Rules
prescribing qualification for the post of Drug Inspector which is vested under Section 21(1) read
with Section 33(2)(b) of the Act, 1940 in the Central Government. Reference may be made to the
rules made by the Central Government in exercise of its powers under Section 33(2)(b) read with
Section 21(1) of the Act, 1940 namely the Drugs & Cosmetics Rules, 1945. Rule 49 thereof 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
specialization 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 his 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 authorized 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."
4 All. U.P.P.S.C. Vs. Ashish Tyagi & Ors.
651

9. The submission on behalf of the petitioners is that the qualification for the post of Inspector,
as prescribed by the Central Government under the said rules which have statutory force is a degree
in Pharmacy or Pharmaceutical Sciences or Medicine with specialization in Clinical Pharmacology
or Microbiology from a University established in India by law. The proviso to the said rule, as per
Shri Anurag Shukla, learned Senior Advocate appearing for the petitioners is referable to the duties
to be performed by the Inspectors and creates an embargo on inspection of manufacture of
substances mentioned in Schedule 'C' only by such Inspectors who fulfill the experience mentioned
in Clause 1, 2 and 3 of the proviso. The submission is that apart from the aforesaid, the Drug
Inspector performs many other functions and duties. Inspection of manufacture of substances
mentioned in Schedule 'C' is only one of the functions, for which, only such Inspectors are entitled
who fulfill the experience mentioned in Clause 1, 2 & 3 of the proviso, which does not mean that
this experience is an essential qualification prescribed under Rule 49. The proviso has specific
purpose in respect of a specific duty to be performed by the Drug Inspectors, which is only part of
all the duties performed by them. A reference has been made to Section 22 and 23 pertaining to
powers of Inspectors and procedure of Inspectors, as also, Rule 51 & 52 of the Rules, 1945
pertaining to duties of Inspectors.

10. Against the aforesaid background, it has been contended, firstly that in view of Section
21(1) read with Section 3(i) and Section 33(2)(b) of the Act, 1940, the Central Government alone is
empowered under the aforesaid enactment to prescribe qualifications for the post of Drug
Inspector, which has been done by the Rules, 1945. The State of Uttar Pradesh lacks competence to
make rules prescribing qualifications for the post of Drug Inspector under the Act, 1940, and as
there is an enactment i.e. the Act, 1940 and the Rules made thereunder i.e. the Rules, 1945 framed
by the Central Government, prescribing qualifications for the post of Inspector, therefore, the field
being covered by a Central enactment, there is no question of application of proviso to Article 309
to the subject at hand. Even otherwise, if any rule is made by the State Government under the
proviso to Article 309, it will, in the event of conflict, have to give way to these rules made by the
Central Government under an enactment. For this reason, he also referred to Article 254 of the
Constitution of India in this very context, as has been considered by Hon'ble the Supreme Court in
the case of State of Haryana Vs. Krishan Kumar and others, [2026 INSC 63]. For all these
reasons, he has submitted that Rule 8 of the Rules, 2015 is ultra vires Section 21(1) read with
Section 3(i) and Section 33(2) of the Act, 1940 read with Rule 49 of the Rules, 1945.

11. On being confronted with the aforesaid situation, learned State Counsel submitted that
Entry 41 of the State list dealing with public services, empowers the State of Uttar Pradesh to make
rules governing the terms and conditions pertaining to the services and posts connected with the
affairs of the State of Uttar Pradesh, therefore, the rules are referable to the said Entry and it cannot
be said that the State does not have the competence. However, on being confronted with the law as
elucidated by Hon'ble the Supreme Court in the case of Krishan Kumar (Supra), which was also
a case similar to the one at hand, wherein certain qualifications had been prescribed by the State of
Haryana, which were in conflict with the rules made by the Central Government and the same were
struck down by Hon'ble the Supreme Court, the State Counsel for obvious reasons could not
dispute this legal position. Reference may be made in this regard to Paragraph 42 to 46 of the
aforesaid dictum of Hon'ble the Supreme Court in this regard which reads as under:-
652 INDIAN LAW REPORTS ALLAHABAD SERIES

"Doctrine of Occupied Filed vis-a-vis Article 309 of the Constitution of India

42. The question of applicability of Article 309 of the Constitution of India in the context
of promotional rules arose in A.B. Krishna and Others Vs. State of Karnataka and Others. In this
case, the Mysore Fire Force (Cadre Recruitment) Rules, 1971 were framed by the State of
Karnataka under Section 39 of the Fire Force Act, 1964, being a State Act. The 1971 Rules
required qualifying an examination for the purpose of promotion. This Court upheld the
applicability of the 1971 Rules over an amendment made by the Governor of Karnataka to the
Karnataka Civil Services (General Recruitment) Rules, 1977 in exercise of powers under Article
309 of the Constitution of India. The observations made in this regard are necessary below for
ready reference:-

"8. The Fire Services under the State Government were created and established under the
Fire Force Act, 1964 made by the State Legislature. It was in exercise of the power conferred
under Section 39 of the Act that the State Government made Service Rules regulating the conditions
of the Fire Services. Since the Fire Services had been specially established under an Act of the
legislature and the Government, in pursuance of the power conferred upon it under that Act, has
already made Service Rules, any amendment in the Karnataka Civil Services (General
Recruitment) Rules, 1977 would not affect the special provisions Validly made for the Fire
Services. As a matter of fact, under the scheme of Article 309 of the Constitution, once a legislature
intervenes to enact a law regulating the conditions of service, the power of the Executive, including
the President or the Governor, as the case may be, is totally displaced on the principle of "doctrine
of occupied field". If, however, any matter is not touched by that enactment, it will be competent for
the Executive to either issue executive instructions or to make a rule under Article 309 in respect of
that matter.

9. It is no doubt true that the rule-making authority under Article 309 of the Constitution
and Section 39 of the Act is the same, namely, the Government (to be precise, the Governor, under
Article 309 and the Government under Section 39), but the two jurisdictions are different. As has
been seen above, power under Article 309 cannot be exercised by the Governor, if the legislature
has already made a law and the field is occupied. In that situation, rules can be made under the
law so made by the legislature and not under Article 309. It has also to be noticed that rules made
in exercise of the rule-making power given under an Act constitute delegated or subordinate
legislation, but the rules under Article 309 cannot be treated to fall in that category and, therefore,
on the principle of "occupied field", the rules under Article 309 cannot supersede the rules made by
the legislature."

43. In light of the facts of the present appeals and the judgment of this Court in A.B
Krishna (Supra), we are of the considered opinion that the Doctrine of Occupied Field is
applicable The D&C Act being a central law confers power to the Central Government to prescribe
the qualification for appointment of Inspectors, which has been exercised by framing the Drug
Rules. Thus, it is the primary legislation on the subject and occupies the field. The Drug Rules,
were framed by the Central Government in exercise of powers conferred by the D&C Act. The
Rules of 2018 framed by the State of Haryana under the proviso to Article 309 of the Constitution
of India cannot override the Drug Rules in so far as it relates to prescription of qualification for
appointment of Inspector Similar is the case in the State of Karnataka where the Rules of 2013
were framed in exercise of powers under Section 3(1)(b) of the KSCSA.
4 All. U.P.P.S.C. Vs. Ashish Tyagi & Ors.
653

44. It is therefore apposite to underscore the material distinction in the manner of
framing of the two sets of Rules. While the Rules of 2013 trace their authority to a State enactment,
the Drug Rules emanate from a central legislation enacted under the Concurrent List, wherein the
central law, along with the Rules framed thereunder, constitutes the primary and dominant
regulatory framework. Consequently, the Rules of 2013 cannot be construed so as to invalidate or
prevail over the central Drug Rules.

45. Additionally, Section 33(2)(b) read with Section 33(2)(n) of the D&C Act confer
exclusive jurisdiction upon the Central Government to frame rules for the purpose of appointment
of Inspector 'Expressio unius est exclusio alterius' means the "express mention of one thing
excludes others." This internal aid to statutory interpretation further reinforces the legislative
intent that the power to prescribe qualifications and conditions for appointment of Inspectors vests
exclusively with the Central Government under the D&C Act. Once the Centre has consciously and
expressly occupied the field by placing the Drug Rules framed under the D&C Act before both
Houses of the Parliament as provided under Section 38, any inconsistent exercise of power by the
State, even under the proviso to Article 309 of the Constitution of India, stands impliedly excluded.

46. Reverting to the issue as raised regarding inconsistency between the laws made by
the Parliament and the laws made by legislature of the State is also a point which requires
consideration. As discussed, the power for appointment to the post of DI/DCO is co-extensive with
the Central and State Governments, and they may assign the duties as they think fit. As analysed
above, under the D&C Act, the power to prescribe the qualification of Inspectors is the domain of
the Central Government. In the previous paragraphs, it is also said that the provisions of the D&C
Act regarding power of the Central Government to prescribe the qualification has not been
amended by the respective States. Since the subject matter is under Entry No. 19 by Concurrent
List of List III, therefore, on the subject occupied by the Central Legislation, the power of State
legislation does not flow to the State on the subject so occupied."

12. Learned counsel for the Commission, though he does not have much of a locus in the
matter, as the rules under challenge have been made by the State Government and Commission is
only the recruiting authority, nevertheless, argued on the same lines as the State Counsel, and the
said arguments are also not acceptable for obvious reasons.

13. We find merit in the submission of Shri Shukla, as regards Rule 8 of the Rules, 2015
framed by the State Government under the proviso to Article 309 of the Constitution of India being
ultra vires Section 21(1) read with Section 3(i), Section 33(2)(b) of the Act, 1940 and Rule 49 of
the Rules, 1945. The matter is squarely covered by the decision of Hon'ble the Supreme Court in
Krishan Kumar's case, (Supra) relevant extracts of which have already been quoted hereinabove.
The State of U.P. lacks the competence to prescribe qualification for the post of Drug Inspector in
view of Section 21(1) read with Section 3(i) of the Act, 1940. Further, the Central Government,
which is competent in this regard, has already prescribed the qualifications vide Rule 49 of the
Rules, 1945 made under Section 33(2)(b) read with Section 21(1) of the Act, 1940. Apparently,
under Rule 8, though, the essential qualifications as mentioned in Rule 49 of the Rules, 1945 have
been mentioned but the proviso to Rule 49, which is not part of the essential qualifications
prescribed by the Central Government, has been incorporated by the State Government in Rule 8 as
an essential qualification which it could not have done, firstly for the reason, it lacked competence
to do so, which in fact, is an error so fundamental and fatal that no other reason is required for
654 INDIAN LAW REPORTS ALLAHABAD SERIES
declaring the same as ultra vires but, additionally, it is also in conflict with Rule 49 of the Rules,
1945.

14. As regards, reliance placed by learned counsels appearing for the State and Commission
on the decision of Hon'ble Supreme Court in the case of S. Satyapal Reddy and Others Vs.
Government of Andhra Pradesh and others, 1994 (4) SCC 391, the same has already been
considered by Hon'ble the Supreme Court in the case of Krishan Kumar (Supra) in Paragraph 47
and 48 which reads as under:-

"47. Learned Additional Solicitor General, Mr. Vikramjeet Banerjee appearing on behalf
of the State of Haryana has heavily placed reliance on the judgment of S. Satyapal Reddy (Supra)
wherein the qualification for appointment on the post of Assistant Motor Vehicles Inspector in the
State of Andhra Pradesh as per State rules was an issue. In the facts of the said case, the Central
Government framed the rules in exercise of power under Section 213(4) of the Motor Vehicles Act,
1988 vide S.O 443(E) dated 12.06.1989 prescribed a diploma in Mechanical Engineering as the
'minimum qualification' for appointment to the said post. The Government of Andhra Pradesh in
exercise of powers under proviso to Article 309 of the Constitution of India, framed the Andhra
Pradesh Transport Subordinate Service Rules, 1984 and enhanced the qualification of diploma into
degree as qualification for appointment. In the said context, this Court held as under:

"5. It is seen that marginal note in Section 213 for "appointment of Motor Vehicles
Officers" indicates the subject-matter of the section. Sub-section (1) says that the State Government
may, for the purpose of carrying into effect the provisions of this Act, establish Motor Vehicles
Department and "appoint as officers thereof such persons as it thinks fit". The power of
appointment includes the power to select a fit and competent person who it thinks fit to hold the
post and would discharge efficiently the functions assigned under the Act. It includes the power to
prescribe qualifications to select suitable officers. The Parliament preserved that power to the
State Government under Section 213(1) itself by allowing it to appoint the officers whom it finds fit
to carry into effect the provisions of the Act. Sub-section (4) gives power to the Central
Government, having regard to the object of the Act, by a notification in the Official Gazette "to
prescribe minimum qualification" which the officers or class of officers thereof shall possess for
being appointed as such officer or to the cadre belonging to the State Government. Under Entry 41
of List II (State List) of VIIth Schedule to the Constitution, the public service includes the services
of the officers to be appointed under sub-section (1) of Section 213 of the Act. No doubt, as
contended by the learned counsel for the appellants that the Act receives paramountcy, since under
Entry 35, the subject under the Act covers the concurrent field. Sub-section (4) of Section 213 also
preserves the power to prescribe qualifications higher than that "minimum qualification"
prescribed by the Central Government to appoint the "said officers or any class thereof shall
possess for being appointed as such."

48. In light of the said observations, if we examine the scheme of the Mother Vehicle Act,
1988, Section 213 deals with the appointment of Assistant Motor Vehicle Inspectors. Sub-section
(iv) therein confers power on the Central Government to prescribe the 'minimum qualification'
which the said officers or any class thereof shall possess for being appointed as such. However,
prescribing the 'minimum qualification' i.e., holding a diploma in Mechanical Engineering was
'minimum' Section 213(iii) of the Motor Vehicles Act, 1988 also confers powers on the State
Government to make rules for regulating the discharge of functions by officers of the motor vehicle
4 All. U.P.P.S.C. Vs. Ashish Tyagi & Ors.
655
department and in particular, and without prejudice to the generality of forgoing power, prescribe
the uniform to be worn by them, the authorities to which they shall be sub-ordinate, the duties to be
performed by them, the powers (including the powers exercisable by police officers under this Act)
to be exercised by them and the conditions governing the exercise of such power Therefore, to
sustain the discharge of the duties of the powers were given to the State Government. In the said
case, the State Government by its rules under the proviso to Article 309 of the Constitution of India
prescribed the educational qualification as a degree in Mechanical Engineering for the post of
Assistant Motor Vehicle Inspector However, the said qualification was above that prescribed by the
Central Government ie, a diploma in Mechanical Engineering which was the minimum
qualification. This Court while dealing with the issue has observed 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
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 the 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 a office or post under
the State. Since the Transport Department under the Act is constituted by the State Government and
656 INDIAN LAW REPORTS ALLAHABAD SERIES
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, ie.. 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."

15. Therefore, the reliance placed on the said decision is of no avail.

16. At this very stage, we may consider a Co-ordinate Bench Judgment dated 08.01.2026
rendered in Writ-A No. 82 of 2026, Deepak Kumar & 32 others Vs. State of U.P. & Another,
wherein the similar issue, as has been considered herein, was involved and the rule was held to be
intra vires, however, this judgment was rendered prior to judgment of Hon'ble the Supreme Court
in the case of Krishan Kumar (Supra), which has been rendered subsequently on 13.01.2026,
therefore, the Co-ordinate Bench did not have the benefit of the aforesaid Supreme Court's
decision. In view of this, there is no need to refer the matter to a larger Bench, as, the issue
involved is directly covered by a Supreme Court decision which has been recently pronounced,
which for obvious reasons, prevails, and by which, we are bound.

17. In fact, we find that in context of the Food Safety Act, 2006 also, a similar controversy
arose where rules were made by the Government of Jharkhand in conflict with rules made by the
Central Government and Hon'ble the Supreme Court in a recent decision dated 28.03.2025
rendered in Civil Appeal 10389 of 2024, Chandra Shekhar Singh Vs. State of Jharkhand, held
that the State lacked the competence to make the rules, as the field was covered by the provisions
of a central enactment and rules made by the Central Government.

18. We, accordingly, declare Rule 8(ii)(a) to (c) of the Rules, 1945 as ultra vires.
Consequences shall follow accordingly as per law.

19.