Maharashtra Public Service Commission vs Sandeep Shriram Warade

CIVIL APPEAL NO(s). 4597 OF 2019 (arising out of SLP (Civil) No(s). 8494 of 2018)

THE MAHARASHTRA PUBLIC SERVICE COMMISSION THROUGH ITS SECRETARY ...APPELLANT(S)

VERSUS SANDEEP SHRIRAM WARADE AND OTHERS ...RESPONDENT(S) WITH CIVIL APPEAL NO(s). 4598­4601 OF 2019 (arising out of SLP (Civil) No(s). 11626­29 of 2019) (Diary No.30422/2017)

THE MAHARASHTRA PUBLIC SERVICE COMMISSION THROUGH ITS SECRETARY ...APPELLANT(S) VERSUS SUHAS SUDHAKARRAO LAVHEKAR AND OTHERS ETC. ETC. ...RESPONDENT(S)

CIVIL APPEAL NO(s). 4602 OF 2019 (arising out of SLP (Civil) No(s). 11631 of 2019) (Diary No.20959/2018)

ASHOK TUKARAM BARDE ...APPELLANT(S) VERSUS THE MAHARASHTRA PUBLIC SERVICE COMMISSION THROUGH ITS SECRETARY AND OTHERS Signature Not Verified ...RESPONDENT(S) Digitally signed by NARENDRA PRASAD Date: 2019.05.03 17:08:56 IST Reason:

1 JUDGMENT

NAVIN SINHA, J.

Delay condoned. Leave granted.

2. The appellants are aggrieved by the orders of the High

Court holding that candidates possessing the requisite years of

experience in research and development of drugs and testing of

the same, are also eligible to be considered for appointment to

the post of Assistant Commissioner (Drugs) and Drug

Inspectors under separate advertisements dated 04.01.2012

and 31.03.2015.

3. Learned counsel for the appellants submitted that

academic qualifications coupled with the requisite years of

practical experience in the manufacturing and testing of drugs

were essential qualifications for appointment. Research

experience in a research and development laboratory was a

desirable qualification which may have entitled such a person to

a preference only. The latter experience could not be equated

with and considered to be at par with the essential eligibility to

be considered for appointment. The High Court erred in

2 misreading the advertisement to redefine the desirable

qualification as an essential qualification by itself.

4. Learned counsel for the respondents submitted that they

were Post Graduates (M. Pharma) having more than three years

experience in research and development coupled with testing of

drugs in a laboratory. They were also eligible to be considered

for appointment and were called for selection after scrutiny of

their documents by a Committee constituted for the purpose

and which recommended them as eligible for consideration.

Once they were consciously permitted to participate in the

selection process, they could not be declared ineligible for

consideration. Reliance was placed on the definition of

manufacturing process in Section 3(f) of the Drugs and

Cosmetics Act, 1961 (hereinafter called “the Act”). No other

grounds were urged by the parties.

5. The Maharashtra Administrative Tribunal (hereinafter

referred to as “the Tribunal”) in O.A. No.820 of 2013 held that

experience of manufacturing or testing in a research and

development laboratory could not be termed as experience for

3 the purposes of the present recruitment. The said experience

only entitled the candidate for a preference subject to

possessing the basic eligibility and requisite experience in the

manufacture and testing of drugs.

6. Reversing the conclusion of the Tribunal, the High Court

in W.P. No.6637 of 2014 and analogous cases held that to deny

opportunity to a candidate possessing research experience in

synthesis and testing of drugs in a laboratory on the ground

that such research experience cannot be linked with

manufacturing, would be a perverse interpretation. A candidate

having research experience in synthesis and testing of drugs in

a laboratory needed to be preferred and could not be denied

opportunity by misreading the eligibility conditions. Research

work carried out in well reputed laboratories is for the purposes

of manufacturing drugs. This order was followed by the High

Court in W.P. No. 7960 of 2016 instituted before the High Court

directly.

7. We have considered the respective submissions. It is

considered prudent to first set out Section 3(f) of the Act and the

extract of the advertisements.

4 “3(f) “manufacture” in relation to any drugs (or cosmetic) includes any process or part of a process for making, altering, ornamenting, finishing, packing, labelling, breaking up or otherwise treating or adopting any drug or cosmetic with a view to its sale or distribution but does not include the compounding or dispensing of any drug or the packing of any drop or cosmetic in the ordinary course of retail business and to manufacture shall be construed accordingly.”

8. The qualifications in the advertisement dated 04.01.2012

for Assistant Commissioner (Drugs) reads as follows:

“(b) Possess qualification and experience prescribed for as under: ­

(i) Degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in Clinical Pharmacology or Microbiology from a University established in India by law, and

(ii) Experience gained after acquiring qualification in the manufacture or testing of drugs or enforcement of the provisions of the Act for a minimum period of five years.”

9. The advertisement for Drug Inspectors, reads as follows: ­

“Clause 4.5 ­ Degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in clinical Pharmacology or Microbiology from a University established in India by law; and

Clause 4.6 – Practical experience gained after acquiring qualification [above in clause (i) in the manufacture or testing of drugs or enforcement of the provisions of 5 the Act for a period of not less than three years;

Clause 4.7 – Preference may be given to candidates having a post graduate degree in a subject mentioned in clause 4.5 or research experience in the synthesis and testing of drugs.”

10. The essential qualifications for appointment to a post are

for the employer to decide. The employer may prescribe

additional or desirable qualifications, including any grant of

preference. It is the employer who is best suited to decide the

requirements a candidate must possess according to the needs

of the employer and the nature of work. The court cannot lay

down the conditions of eligibility, much less can it delve into the

issue with regard to desirable qualifications being at par with

the essential eligibility by an interpretive re­writing of the

advertisement. Questions of equivalence will also fall outside

the domain of judicial review. If the language of the

advertisement and the rules are clear, the Court cannot sit in

judgment over the same. If there is an ambiguity in the

advertisement or it is contrary to any rules or law the matter

has to go back to the appointing authority after appropriate

orders, to proceed in accordance with law. In no case can the

6 Court, in the garb of judicial review, sit in the chair of the

appointing authority to decide what is best for the employer and

interpret the conditions of the advertisement contrary to the

plain language of the same.

11. The fact that an expert committee may have been

constituted and which examined the documents before calling

the candidates for interview cannot operate as an estoppel

against the clear terms of the advertisement to render an

ineligible candidate eligible for appointment.

12. The plain reading of the advertisement provides that a

degree in Pharmacy or Pharmaceutical Chemistry or in medicine

with specialization in Clinical Pharmacology or Microbiology

from a University coupled with the requisite years of experience

thereafter in manufacturing or testing of drugs were essential

qualifications. Preference could be given to those possessing

the additional desirable qualification of research experience in

the synthesis and testing of drugs in a research laboratory.

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13. Manufacture has been defined as a process for making,

altering, ornamenting, finishing, packing, labelling, breaking up

or otherwise treating or adopting any drug or cosmetic with a

view to its sale or distribution. Therefore, the experience of

testing has to be correlated to the manufacturing process which

naturally will be entirely different from the testing carried out in

the research and development laboratory before the product is

released for manufacture and sale in the market. To say that

experience in testing of drugs in a research and development

laboratory would be at par with the testing done at the time of

manufacture before sale cannot be countenanced and has to be

rejected.

14. The preference clause in Clause 4.7 only means that if a

candidate with the required degree qualification and practical

experience in the manufacturing and testing of drugs for

stipulated period of years has an additional desirable attribute

of a research experience in a research laboratory, other things

being equal, preference could be given to such a candidate.

The term “preference” mentioned in the advertisement cannot

be interpreted to mean that merely because a candidate may

8 have had the requisite experience of testing in a research and

development laboratory he/she possessed the essential

eligibility and had a preferential right to be considered for

appointment.

15. The view taken by the Tribunal finds approval in

Secretary (Health), Department of Health & F.W. and

Another vs. Dr. Anita Puri and Others, 1996 (6) SCC 282,

observing as follows:­

“7. Admittedly, in the advertisement which was published calling for applications from the candidates for the posts of Dental Officer it was clearly stipulated that the minimum qualification for the post is B.D.S. It was also stipulated that preference should be given for higher dental qualification. There is also no dispute that M.D.S. is a higher qualification than the minimum qualification required for the post and Respondent 1 was having that degree. The question then arises is whether a person holding a M.D.S. qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person 9 automatically is entitled to be selected and appointed……. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a M.D.S. qualified person like Respondent 1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualification person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed.”

16. We are therefore unable to uphold the interpretation of the

terms of the advertisement as made by the High Court both with

regard to the posts of Assistant Commissioner (Drugs) and Drug

Inspectors. The impugned orders of the High Court dated

04.05.2017 and 17.07.2017 are set aside. The appeals are

allowed. There shall be no order as to costs.

.……………………….J. (Arun Mishra)

………………………..J. (Navin Sinha) New Delhi, May 03, 2019.

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