The above mentioned four (4) Civil Rules have been heard together and therefore have been taken for decision as they are relating to examination of Drugs and Cosmetics Act, 1940 and the Rules, 1945 thereof and the Assam Drugs Control Organisation Service Rules, 1994 (Assam Rules). 2. Civil RuleNo.5458 of 1995 (Association of Inspector of Drugs vs. State of Assam) is the first case in which the petitioner Association of Inspector of Drugs claimed that in view of Rule 5 and 11 of the Assam Rules, 1994, the post of Drugs Controller, Assistant Drugs Controller and Senior Inspector of Drugs only and that relaxation be made under Rule 26 of the Assam Rules if and when the provisions of Rules causes undue hardship. 3. Civil Rule No. 144 of 1996 was preferred by the petitioner Shri Chandranath bhattacharjee, a B.Phama Degree holder joined the service under respondents authorities as a direct recruit as Inspector of Drugs on 7.7.88. He challenged the reemployment of C. Deb Roy (respondent No.4), Drugs Controller for a period of one year with effect from the date of his superannuation i.e. 1.2.95 to 31.1.96, as such reemployment had violated the mandatory provisions of Rule 11 of Assam Rules, 1994. It is submitted from the Bar that the said respondent No.4 subsequently reniewed his post before the expiry of the extended period and in that view of the matter as admitted bycounsel of both the parties the Civil Rule is infructuous and accordingly it is dismissed as infructuous. However as petitioner's prayer relates to the claim of promotion of the cadre under Rule 11 of the Assam Rules, this issue will be dismissed alongwith other writ petitions. 4. Writ petition No.444 of 1996 has been preferred by the Association of Inspector of Drugs challenging the appointment of respondent No.6 Shri PJ Gogoi as Drugs Analyst under section 20 of the Drugs and Cosmetics Act, 1940, vide notification No.HLA.321/93/17 dated 26.10.95 (Annexure A to the writ petition). The contention of the writ petitioner is that by the impugned notification, the respondent authority violated the mandatory provision of section 20 (1) of the Act, 1940 and the rules made thereunder in appointing the respondent No.6 who is not qualified to be appointed as Government Analyst for the entire State of Assam and therefore the appointment of respondent No.6 is liable to be set aside. Further the petitioner apprehends that the authority is making a move to appoint the respondent No.6 as Drugs Controller, who is not even otherwise qualified to be appointed as Government Analyst. Accordingly, it is contended, the petitioner Association has submitted a representation on 11.1.96 to the Commissioner and Secretary to the Government of Assam respondent No.2, in respect of filling up of the post of Drugs Controller Assam, which has been lying vacant since 1.2.96 under the provisions of the Assam Rules, 1994. 5. Civil Rule No. 1563 of 1996 has been filed by the petitioner Shri Partho Jyoti Gogoi, presently holding the post of Government Analyst for the entire State of Assam vide notification dated 26.10.95 (Annexure 7 to the writ petition). Before his appointment as Government Analyst petitioner was appointed as Chemist on 2.5.91 and thereafter, through Assam Public Service Commission, he was selected and appointed as Drugs Analyst on regular basis with effect Tom 15.3.93 (Annexure 4 to the writ petition). The contention of the petitioner is that he fulfills all the required qualification for the post of Government Analyst; that after completing his Post Graduate course in Pharmaceutical Science in 1989, was selected as Senior Research Scholar in September, 1989 and gained experience in the field manufacture, amifacture and testing of drugs both as Research Scholar as well as Chemist, Drugs Analyst and Government Analyst; that he has more than six years experience in the field of manufacture and drug testing; that under the guidance of his Research guide developed a number of products some of whom already been marketed by Pharmaceutical Companies, such as anti-inflamatory ointment, insuline etc. His grievance is that because of the provisions contained under Rule 11 (1) of the Assam Rules, he cannot be appointed on promotion to the post of Drugs Controller although he fulfills the requirements and eligibility for promotion to the said post under Rule 50A of the Drugs and Cosmetics Rules, 1945 (Rules 1945). Therefore, he invokes the Court's writ jurisdiction to strike down the impugned provisions of Rule 11(1) of the Assam Rules, 1994 as violative of Article 14 and 16 of the Constitution. 6. Therefore, he invokes the Court's writ jurisdiction to strike down the impugned provisions of Rule 11(1) of the Assam Rules, 1994 as violative of Article 14 and 16 of the Constitution. 6. In all the cases, respondent-State has not filed affidavits, and in Civil Rule No. 1563 of 1996, the Association of Inspector of Drugs through the Secretary have been impleaded as respondent who stand by the contentions made in the Civil Rule No. 144 of 1996 and444 of 1996 as counter to the writ petition (Civil Rule No. 1563 of 1996) wherein appointment of the writ petitioner as Government Drugs Analyst have been challenged. The respondent Union of India also did not file any affidavit and its counsel Mr. Choudhury submitted that he has no instruction to file affidavit. Both the Civil Rule No.444 of 1996 and Civil Rule No. 1563 of 1996 have been contested by respondent No.6 and respondent No.3, the Secretary of the Association (impleaded vide Misc Case No.716 of 1996 in Civil Rule No. 1563 of 1996) respectively. President of the Association also filed Misc Application No.715 of 1996 for modification/ cancellation of the interim order dated 28.3.96. 7. Before proceeding with the Civil Rule No. 144 of 1996, preferred by the Association, it is essential to scrutinise the Assam Rules, 1994 along with the provisions of Act, 1940 and Rules 1945 made thereunder and to give a decision whether impugned Rule 11 (1) is discriminatory and liable to be struck off as claimed by the writ petitioner in Civil Rule No. 1563 of 1996 (respondent No.6 in Civil Rule No.444 of 1996). 8. In order to regulate the import, manufacture, distribution and sale of drugs and cosmetics, Central Legislative Assembly enacted Drugs and Cosmetics Act, 1940, (the Act). The Act contains comprehensive measures for uniform control of manufacture and distribution of drugs throughout the country. The provisions contained in the Act are in addition to the laws made by the State Legislatures. 9. Under section 6,12 and 33 of the Act, 1940, the Central Government is authorised to make rules to give effect to the provisions of the Act and under the enabling power the Central Government has made the rules, namely the Drugs and Cosmetics Rules, 1945 (Rules 1945). Chapter V of the Rules, 1945 deals with the appointment and qualification, eligibility of Government Analyst, Inspectors, Licencing Authority and Controlling Authority. 10. Chapter V of the Rules, 1945 deals with the appointment and qualification, eligibility of Government Analyst, Inspectors, Licencing Authority and Controlling Authority. 10. In the Drug Control Organisation, there are two source of appointment e and under Rule 50A of the Rules, 1940, these two sources of appointment are: (i) Manufacturing and/or Testing of Drugs Wings; (ii) the Enforcement Wing. 11. Rule 44 relates to the qualification of Government Analyst which reads as follows: "(a) is a graduate in medicine or science or pharmacy or pharmaceutical chemistry of a University established in India by law or has an equivalent qualification recognised and notified by the Central Government for such purpose and has had not less than five years post graduate experience in the testing of drugs in a laboratory under control of (i) a Government Analyst appointed under the Act, or (ii) the head of an institution or testing laboratory approved for the purpose by the appointing authority, or (b) possesses a post graduate degree in medicine or science or pharmacy or pharmaceutical chemistry of a University established in India by law or has an equivalent qualification recognised and notified by the Central Government for such purpose or possesses the Associateship Diploma of the Institution of Chemists (India) obtained by passing the said examination with "Analysis of Drugs and Pharmaceuticals" as one of the subjects and has had after obtaining the said post graduate degree or diploma not less than three years' experience in the testing of drugs in a laboratory under the control of (i) a Government Analyst appointed under the Act or (ii) the head of an institution or testing laboratory approved for the purpose by the appointing authority." 12. Rule 49 of the Rules, 1945, also is reproduced as follows : "49. Qualification of Inspectors - A person who is appointed an Inspector under the Act shall be a person who -... Rule 49 of the Rules, 1945, also is reproduced as follows : "49. Qualification of Inspectors - A person who is appointed an Inspector under the Act shall be a person who -... (3) (a) has a degree in Pharmacy or Pharmaceutical Chemistry or a post graduate degree in Chemistry with Pharmaceuticals as a special subject of a University established in India by law or has an equivalent qualification recognised and notified by the Central Government for such purpose or the Associateship with "Analysis of Drugs and Pharmaceuticals" as one of the subjects; or (c) is a graduate in medicine or science of a University established in India by law or has an equivalent qualification recognised and notified by the Central Government for such purpose and has had at least one year's post graduate training in a laboratory under (i) a Government Analyst appointed under the Act, or (ii) a Chemical Examiner, or (iii) the head of an institution specially approved by the purpose by the appointing authority : 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 or at least one of the substances specified in Schedule C, in a laboratory approved for this purpose by the licensing authority, or (ii) who have gained experience of not less than three years in the inspection of firm manufacturing any of the substances specified in Schedue C during the tenure of their service as Drugs Inspectors shall be authorized to inspect the manufacture of the substances mentioned in Schedule C : Provided further that for a period of four years from the date of which Chapter IV of the Act takes effect in the States, person whose qualifications, training and experience are regarded by the appointing authority as affording, subject to such further training, if any, as may be considered necessary, a reasonable guarantee of adequate knowledge and competence may be appointed as Inspectors and authorized under the preceding proviso : Provided further that any person appointed as inspector in terms of the preceding proviso may be allowed to hold his post after the said period of four years, if the State Government is satisfied that he possesses adequate knowledge and competence as Inspector to inspect the manufacture of items mentioned in Schedule C." 13. Rule 50A of the Rules, 1940 provides for the qualification for appointment on promotion to the post of Drugs Controller, who has been encadered as the head of the Drugs Organisation and as contended by the writ petiitioner in Civil Rule No. 1563 of 1996 the promotion to the post of Drugs Controller is opened to the service personnel of both the wings of the organisation, namely, Enforcement as well as Drugs Testing Wing. 14. Rule 50A reads as follows : "50A. Qualification of a Controlling Authority - (1) No person shall be qualified to be a Controlling Authority under the Act unless : (i) he is a graduate in Pharmacy or Pharmaceutical Chemistry or in Medicine with specialisation in Clinical Pharmacology or Microbiology from a University established in India by law; and (ii) he has experience in the manufacture or testing of drugs or enforcement of the provisions of the Act for a minimum period of five years : Provided that the requirements as to the academic qualification shall not apply to those Inspectors and the Government Analysts who were holding those positions on the 12th day of April, 1989." 15. The Assam Service Rules, 1994 has been made by the Governor of Assam in exercise of powers conferred by the proviso to Article 309 of the Constitution of India to regulate the recruitment and the condition of service of the persons appointed to the Assam Drugs Control Organisation Service. The Rules came into force on the date of its publication in Official Gazette dated 26th December, 1994. 16. The Rule 5, 6, 11 relate to the method of recruitment to the cadre of Drugs Controller, Assistant Drugs Controller and Senior Inspector of Drugs and these rules are having great bearing in all the four writ petitions. 17. As it is transpired prior to the coming into force of the Rules, 1994, the recruitment and promotion to the services and posts under the Assam Drags Control Organisation were regulated by the Assam Drags Control Organisation (Recruitment and Promotion) Order, 1990. In conformity with the Order, 1990 the Rules 1994 has been made with some variation regarding Class I service. In the Order, 1990 Class I service included- (a) Drags Controller, (b) Assistant Drags Controller, (c) Senior Inspector of Drags. In both the Order 1990 and Rules 1994 Class II Cadre included Inspector of Drags. 18. In conformity with the Order, 1990 the Rules 1994 has been made with some variation regarding Class I service. In the Order, 1990 Class I service included- (a) Drags Controller, (b) Assistant Drags Controller, (c) Senior Inspector of Drags. In both the Order 1990 and Rules 1994 Class II Cadre included Inspector of Drags. 18. The contention of petitioner Association in both the writ applications is that the post of Drags Controller in the Organisation of Drags is lying vacant and the same be filled under the provisions of Assam Rules, 1994. 19. In both the Civil Rule Nos.5458 of 1995 and 144 of 1996 the petitioner Association challenged the extension of service of the then incumbent after his retirement claiming to follow the Rules and give promotion to the next incumbent in the line. 20. Services of the Organisation of Drags Controller is governed by the provisions of Rules, 1994 after its application in December, 1994. The relevant provisions of Rules for the purpose of determination of the petitioner cases are as follows: "Rule 5 (i) provides for method of recruitment of Drugs Controller, Assistant Drugs Controller and Senior Inspector of Drugs and all these posts are to be filled up by promotion only (no direct recruitment). Rule 5 (2) provides recruitment to the cadre of Inspector of Drugs which have to be made by direct recruitment only. Rule 6 (ii) provides that the direct recruitment in the cadre of Inspector 01 Drugs shall be made as the basis of the recommendations made by the Assam Public Service Commission and also in accordance with the procedure laid down in the said Rules. Rule 11 of the Rules of 1994 provides for recruitment by promotion and Rule 12 provides the general procedure of promotion and Rule 13 provides the Constitution of Selection Board." 21. Further Rule 26 of the Service Rules, 1994 reads as under: "26. Where the Governor is satisfied that the operation of any of these rules causes undue hardship in any particular case, it may dispense with or relax the requirement of mat rule to such extent and subject to such conditions as it may considers necessary for dealing with the case in a just and equitable manner: Provided that the case of any person shall not be dealt with in any manner less favourable to him than that provided in these Rules." 22. From the reading of the relevant provisions of the Rules 1994, it is clear at in Class I the Drugs Controller's post is to be filled up by promotion only. 23. In Civil Rule No.444 of 1996, the petitioner Association challenges the appointment of respondent No.6 Shri PJ Gogoi, as Drugs Analyst, State Drugs Testing Laboratory to function as Government Analyst for the whole of the ate. Respondent No.6's appointment has been challenged as violation of the mandatory provisions of section 20 (1) of the Drugs and Consmetics Act, 1940 (Act, 1940). 24. Respondent No.6 in Civil Rule No.444 of 1996 has filed affidavit-in-opposition countering the contentions of the petitioner Association and further challenging the rules regarding recruitment and promotion of the persons in the service. As stated above respondent No.6 has also filed Civil Rule No. 1563 of 96 challenging the constitutional validity of the provisions of the Assam Rules, 94. 25. Taking the case of Association challenging the appointment of Mr. PJ Gogoi, Government Analyst, the Assam Rules, 1994 required to be examined, the said Assam Rules no provisions have been incorporated for inclusion of the appointment and service condition of the post of Government Analyst. As cussed above under the Rules, 1945, those are the source of recruitment/appointment such as (a) Manufacturing and Testing of Drugs Wings and (b) the enforcement Wing. 26. The Assam Rules, 1994 is silent about the source of appointment of persons in Manufacturing and Testing of Drugs Wings though Assam Drugs Control Organisations consists of persons of both the wings also. Admittedly there are posts for Chemist, Assistant Government Analyst and Government Analyst who are also direct recruits. Rule 3 of the Assam Rules provides for two classes i.e. Class I and Class II of which the post of Drugs Controller is the Apex t in the hierarchy of the Controller of Drugs Organisation and the promotional avenue to this post as provided under Rule 5 is open from the two cadres only namely, Class I and Class II. Apparently Rule 11 (1) of the Assam Rules which relates to recruitment by promotion to the hierarchy does not take into consideration the qualification of the other service personnel i.e. other wings of the organisation who are recruited for manufacturing or testing drugs. Apparently Rule 11 (1) of the Assam Rules which relates to recruitment by promotion to the hierarchy does not take into consideration the qualification of the other service personnel i.e. other wings of the organisation who are recruited for manufacturing or testing drugs. The statutory parent Rules, 1945 provides for two sources of recruitment and the Assam Rules also, it is contended by the respondent No.6 (writ petitioner), required to keep room for promotion of the persons of the manufacturing unit. 27. The parent Rules, 1945 keeps provisions under section 20 (1) of the Act regarding the appointment of the Government Analyst by the State Government. Rule 44 of the Rules, 1945 further provides for qualification of a Government Analyst and Rule 45 provides for duties. 28. Writ petitioner Association's objection regarding the appointment of respondent No.6, Mr. Gogoi as Government Analyst is that under Rule 44 of the Rules, 1945, the qualification for being appointed as Government Analyst five (5) years minimum experience in testing of drugs in a laboratory under the Control of Government Analyst is required for the person who is a graduate in Medicine or Science or Pharmacy etc. In respect of Master Degree holder such recruitment is of three (3) years. Respondent No.6 Mr. Gogoi though is a Master Degree holder but has no 3 years experience and from his own admission, it is contended, he has 5 months experience only. Further, it is contended, that the laboratory in Khanapara is not well equipped and the respondent No.6 cannot gather required experience by working in such a laboratory. The list of the objection, as insisted by the petitioner Association is that the provisions of section 20 of the Act only empowers the State Government to appoint Government Analyst, but without fulfilling the requirements under Rule 44 of the Rules, 1945, the State Government cannot appoint a Government Analyst whimsically and such appointment is made only with malafide design and in colourable exercise of power. Petitioner Association also alleges that the respondent No.6 has been shown favour by the respondents for the reasons best known to them. To prove the fact of inexperience the petitioner Association has pointed out that the petitioner was appointed as Chemist on 2.5.91 in the scale of Rs. 1635-3950 and on 20.8.92 appointed under Rule 3 (f) of the APSC (Limitation of Function) Regulation as Drugs Analyst. To prove the fact of inexperience the petitioner Association has pointed out that the petitioner was appointed as Chemist on 2.5.91 in the scale of Rs. 1635-3950 and on 20.8.92 appointed under Rule 3 (f) of the APSC (Limitation of Function) Regulation as Drugs Analyst. Respondent No.6's post was regularised by APSC on 15.3.93. Further, the writ petitioner Association points out that the respondent No.6 was sent for training outside the State i.e. in the Central Drugs Laboratory (CDL)from 1.11.91 to31.12.91 andfrom 1.5.92 to 30.6.92 when he was working under Shri VJ Thomas, the then Government Analyst, as such infrastructure for such training in the State Laboratory. In support of this contention petitioner has annexed Annexure I, II, III and IV in the additional affidavit. However, admittedly petitioner has taken trainings at the CDL, Kasauli from 16.8.93 to 10.10.93, at CDL, Calcutta from 7.2.94 to 29.3.94 and from 1.8.94 to 30.9.94 from April, 1994 onwards for 6 months at State Drugs Control Laboratory, West Bengal and that total length of training was for 15% months. By giving the details an attempt has been made by the petitioner to show that the Director of Health Services (DHS), who recommended the name of the respondent No 6 for the appointment was influenced by the fact that respondent No.6's mother was a Minister at the relevant time and this aspect influenced the respondent No.6's appointment; that respondent No.6 is not eligible to be appointed as Government Analyst under Rule 44 (b) from the fact that the certificates (Annexure 4 series to the additional affidavit of the petitioner) dated 31.3.93 (under No.DTL/ESTT/ 93-94) did nowhere specifically stated that the period of service that can be counted as experience for such appointment under the statute/rules. 29. In view of the allegations, it is to be seen whether appointment of respondent No.6 was made in compliance of the section 20 (1) of the Act and Rule 44 (1) of the Rules, 1945. 30. As the respondent No.6 in Civil Rule No.444 of 1996 and in the Civil Rule No. 1563 of 1996 is the same person, the stand taken by him in both the cases is same and similar. 31. From the discussion made hereinbefore, the main grounds of challenge of the appointment of respondent No.6 Mr. Gogoi emerges as (a) respondent No.6 Mr. 31. From the discussion made hereinbefore, the main grounds of challenge of the appointment of respondent No.6 Mr. Gogoi emerges as (a) respondent No.6 Mr. Gogoi is not experienced, (b) State Government has no power under section 20 of the Act to allow respondent No.6 to function as Government Analyst; and (c) the apprehension of the petitioner Association mat Government is making a move to appoint respondent No.6 as Drugs Controller of the State in violation of the provisions of Rules, 1994 (Assam Rules). 32. Taking the objections of the petitioner Association as stated above, it is necessary to examine in this context, the qualification of the respondent No.6 for the appointment as Government Analyst in compliance with the provisions of the Act and Rules. 33. Respondent No.6 Mr. Gogoi, in his affidavit-in-opposition giving details of his qualification required for the post in question has averred that he is qualified and experienced to hold the post of Government Analyst. In support of his stand he has annexed the documents with his affidavit. 34. Respondent No.6 Mr. Gogoi completed B. Pharma in the year 1987 and appeared in Graduate Aptitude Test for Engineer (GATE) for permanent post Graduate in Pharmaceutical Science. It is averred that GATE is a competitive examination at all India level with tough standard. After its competetion, he was selected for M. Pharma course and passed M. Pharma in Pharmaceutical Technology from Dr. Harsing Gaur Vishwavidyalaya (former Sagar University) in 1989, securing First Division (Annexure 1 to the writ petition of CR 1563 of 1996). He was selected as Senior Research Scholar and was entrusted to carry out a project entitled as the "Target Oriented Immobilised Drugs Delivery System", sponsored by Ministry of Human Resources Development, Government of India. He has undergone number of inhouse training in manufacturing units of Multinational Company and some of the products, developed by Mr. Gogoi under the guidance of his Superiors, such as, anti inflamatory ointment, insulia, etc and those have already been marketed. His achievements have been accepted and published in the leading international journals. In support of this, he annexed relevant portions of the journals which are marked as Annexure 3. 35. It is further averred that at the request of then Commissioner and Secretary Mr. Monoharan, in 1991, when Mr. His achievements have been accepted and published in the leading international journals. In support of this, he annexed relevant portions of the journals which are marked as Annexure 3. 35. It is further averred that at the request of then Commissioner and Secretary Mr. Monoharan, in 1991, when Mr. Gogoi was undergoing fellowship course was motivated to serve the State decided to accept the offer to join State Drugs Laboratory at Khanapara, which was said to be in deplorable condition for want of technical knowhow. He was initially appointed as Chemist in the said laboratory and thereafter through the Assam Public Service Commission he was selected and appointed as Drugs Analyst. Admittedly Mr. Gogoi has undergone numerous courses and training in manufacturing and testing of drugs. 36. Further averment of Mr. Gogoi is that on the basis of his merit, he has been nominated for award of a World Health Organisation Fellowship outside the country for 3 months (Annexure 5 to the affldavit-in-opposition). That he is having much better qualification than the Enforcing Officer, who claims his promotion to the post of Drugs Controller. But, it is averred, due to the provisions contained in the Assam Rules, 1994, he cannot be promoted to the said post. 37. In view of these qualification and experiences, Mr. Gogoi claims that he is qualified to hold the post of not only Government Analyst but also the highest post of the hierarchy of the Controller of Drugs Organisation - the post of Controller of Drugs. 38. Taking this stand, as discussed above, Mr. Gogoi as writ petitioner in Civil Rule No. 1559 of 1996 challenges the provisions of the Assam Rules, 1994 and invokes writ jurisdiction of this Court to strike down provisions of Rule 11 (1) and to give a direction to make provisions for promotion of the other wing of the Drugs Organisation namely Manufacturing and Testing of Drugs Wing along with the Enforcement Wing to the highest post of the Organisation Drugs Controller. 39. Mr. Barthakur, learned Senior Advocate for the respondent No. 6, Mr. Gogoi (as well as petitioner in Civil Rule No. 1563 of 1996) has submitted that Mr. Gogoi is sufficiently qualified; both in qualification and experience, for the post of Govt Analyst and also for Controller of Drugs. That Mr. 39. Mr. Barthakur, learned Senior Advocate for the respondent No. 6, Mr. Gogoi (as well as petitioner in Civil Rule No. 1563 of 1996) has submitted that Mr. Gogoi is sufficiently qualified; both in qualification and experience, for the post of Govt Analyst and also for Controller of Drugs. That Mr. Gogoi fulfills the requirement for his appointment as Government Analyst under section 20/20 (b) of the Act, 1940 and he has also completed 5 years experience as required under the provisions of Rule 50A (ii) of the Rules, 1945. His further submission was that as Mr. Gogoi fulfills both the requirements under section 20 (i) (b) of the Act, 1940, he is entitled to be promoted/appointed as the Controller of Drugs under Rule 50A (ii) of the Rules, 1945 as the provisions under Rule 50A keeps provisions for Government Analyst also for such promotion/appointment. 40. As discussed above, the provisions of Rule 50A (ii) contemplates promotional avenue for the Government Analyst along with Inspectors and the highest post of hierarchy in the Organisation i.e. Controller of Drugs provides for two qualifications, such as, (I) experience in the field of enforcement of provisions of Drugs and Consmetics Act or (II) 5 (five) years experience in manufacturing and/or testing. From the note clarifying the application of newly added Rule 50A, it is seen that earlier, i.e. prior to 1989, also the post of Controller of Drugs was filled up from both the sources i.e. Enforcement Wing and the Manufacturing and Testing Wing and after 1989, Rule 50A saved the earlier appointment - providing that requirements to academic qualification shall not apply to those Inspector and the Government Analyst (underline supplied) who were holding those positions on 12th day of April, 1989. From this above circumstances it is seen that the provision of Rule 50A (ii) clearly makes scope for the promotion of the Government Analyst to the post of Controller of Drugs. Therefore, any provision of the Assam Rules, 1994 cannot supersede or deviate from the present statutory Rules, 1945, more so, when it prejudices the right and interest of a person, entitled to be considered for promotion/appointment. 41. On behalf of Mr. Gogoi, it is contended that, on 15.12.95 Mr. Therefore, any provision of the Assam Rules, 1994 cannot supersede or deviate from the present statutory Rules, 1945, more so, when it prejudices the right and interest of a person, entitled to be considered for promotion/appointment. 41. On behalf of Mr. Gogoi, it is contended that, on 15.12.95 Mr. Gogoi filed a representation to the State of Assam for removal of the discriminatory rules and to provide equal opportunity to all the eligible service personnels who are qualified to be promoted/appointed as Drugs Controller under the Drug and Cosmetics Rules, 1945, which is pending for disposal. 42. Mr. Gogoi in his writ petition as well as in his affidavit-in-opposition challenges the provisions of Rule 11 as violative of Article 14 and 16 of the Constitution of India. 43. The provisions of Rule 3 only provides for inclusion of services of the Enforcement Officers and for its two cadre Class I and Class II. It is silent about the classification cadres in the other wing of manufacturing and testing within the organisation. From the nature of the appointment in this wing of the organisation there is provision to appoint Chemist, Drug Analyst and Government Analyst. 44. As discussed hereinbefore about the qualification of Government Analyst under Rule 44 and of Drugs Controller under Rule 50A of the Rules, 1945, it is clear that the officers who have experiences in manufacture or testing of drugs or enforcement of the provisions of the Act are eligible to be promoted/appointed as Controller of Drugs. In that view of the matter Rule 11 (1) of the Assam Rules, 1994 found silent in this aspect. As the appointment under the organisation has been made from two sources i.e. enforcement and manufacturing or testing. Rule 3 of the Rules 1994 ought to have kept room for this wing of the service and caderised accordingly and in consonance with the parent Rules, 1945 recruitment procedure ought to have found place for this wing as is done in the case of the other wing of the service under the State Drugs Organisation. Non inclusion of this important wing of the organisation in the Rules, 1994, leaves it incomplete and devoid of principles followed in service jurisprudence and therefore I hold it discriminatory and violates Articles 14 and 16 of the Constitution of India. Non inclusion of this important wing of the organisation in the Rules, 1994, leaves it incomplete and devoid of principles followed in service jurisprudence and therefore I hold it discriminatory and violates Articles 14 and 16 of the Constitution of India. It deprives the personnels of the wing of the organisation who are entitled to come into the zone of consideration along with Enforcement Wing personnel for the highest post of the organisation - Controller of Drugs. In the parent Rules there is no such bar that no Government Analyst can be considered for the post of Controller of Drugs on the contrary Rule 50A provides provisions for appointment of the Government Analyst to the post of Controller of Drugs. Examining the provisions regarding qualifications of a Controller of 8 Drugs and Government Analyst under Rule 44 and Drugs Controller under Rule 50A of the Rules, 1945, section 33F and 33G empowers the State Government and the Central Government to appoint Government Analysts and Inspectors respectively. Rule 44 and 50A (ii) provides for the qualification for the two appointments and this power has been given under section 33N (b) of the Act, 1940. The aforesaid provisions of the Act and the Rules postulates both the wings of the Drugs Organisation as two important components of the organisation and the Controller of Drugs being the highest heirarchy and in that view of the matter avenues of promotion required to be kept for the personnels of both the wings and only one wing of the organisation cannot be kept as feeder post to the highest rank. 45. This provisions of the Rules 1945 clearly indicates that a Government Analyst also can come into the zone of consideration for the highest post of Drugs Controller subject to five years experience. 46. Section 12 and 33 of the Act confers power of Central Government to make rules when the provisions of the Central Rules made under the Act the State Rules must keep consonance with the provisions of the parent Act and the Rules and any deviation, therefore make such State Rules, ultra vires, inoperative. When the Central statute keeps provision for consideration qualifications for a particular post, that statutory rights cannot be superseded by subsequent rules which is made beyond the scope of the parent Act/Rules. When the Central statute keeps provision for consideration qualifications for a particular post, that statutory rights cannot be superseded by subsequent rules which is made beyond the scope of the parent Act/Rules. The rule making power under section 33 of the Act, 1940 covers the power to make rules regarding appointment as contemplated under Rule 50A (ii) of the Rules, 1945. Therefore Rule 11(1) of the Assam Rules, 1994 in respect of promotion is ultra vires as it superseds the parent statute which is a Central Statute. Though the Assam Rules, 1994 has been framed under Article 309 of the Constitution it cannot deviate from the purpose and meaning of the parent Central Rules, 1945 which has not barred for consideration for the appointment of Government Analyst to the post of Constroller of Drugs providing similar qualification under Rule 50A (ii) of the Rules. 47. In view of above reasons I hold that, under the provisions of Rule 3, 5 and 11 of the Assam Rules, 1994 personnels of another wing of the Organisation of the Drugs have been deprive for consideration of promotion to the highest post of the organisation under the State. Further the Assam Rules is silent about the classification, recruitment and promotional avenue of the other wings, namely manufacturing and testing wings. Being an wing of the organisation Government cannot make rules, depriving its other part of the organisation at the cost of the similarly situated personnel of the same organisation and take a discriminatory view. Rule making authority should not change its mind to the vested right of one set of personnel to the advantage of others. A statute should not be construed to take away a vested right. In a number of judicial pronouncements the Courts of law in India held that, the right of all parties stand to be measured by the Acts and Rules dealing therewith and that it is not permissible to have any preferential interpretation or adjustment of rights flowing from statute. 48. In the Assam Rules, 1994 non inclusion of the other wing is violative of the principle of service jurisprudence as well as Article 14 and 16 of the Constitution. 49. From the above reasons discussed above, I hold that the provisions of Rule 11 is ultra vires, discriminatory and violates Article 14 and 16 of the Constitution of India. 48. In the Assam Rules, 1994 non inclusion of the other wing is violative of the principle of service jurisprudence as well as Article 14 and 16 of the Constitution. 49. From the above reasons discussed above, I hold that the provisions of Rule 11 is ultra vires, discriminatory and violates Article 14 and 16 of the Constitution of India. Therefore, that provisions of the Rule is struck off accordingly. It is also held that Rule 3 and 5 of the Rules 1994 have to include the Manufacturing and Testing Wing of the organisation and make provisions for classification recruitment and promotion along with the personnels of Enforcing Wing and the rule requires to be amended keeping avenues for promotion of the Government Analysts keeping consistency with the statutory a provisions of Rule 50A (ii), is required to amend the Rules, 1994 keeping provisions for the recruitment classification and promotion of the personnel from the two wings of the Organisation of Drugs of the State Government and keep avenues for promotion to the highest post of the organisation for both the Senior Inspector/Assistant Drugs Controller and Government Analyst. Therefore, respondent-Government is directed to amend the Rules, 1994 accordingly. 50. Next point for consideration is whether respondent No.6 Mr. Gogoi is qualified under the provision of section 20 (1) to be appointed as Government Analyst. Apparently regarding Mr. Gogoi's academic qualifications required under Rules, 1945 fulfill the requisite qualifications. Writ petitioner Association alleges that he has no required experience of 3 years and therefore is not eligible to be appointed as such. From the discussion made hereinbefore, respondent No.6 Mr. Gogoi has more than 3 years experience in the testing of drugs in the laboratory under the control of a Government Analyst appointed under the Act and also under the head of Institution, testing laboratory. Writ petitioner's other allegations such as non equipped laboratory at Khanapara to get the status of Central Drugs Laboratory are not sustainable as the State Drugs Testing Laboratory is functioning under the Health and Family Welfate Department of the State Government and the Directors of Health Services. Mr. Banarjee, learned Government Advocate has informed and submitted that the purpose of establishing State Drugs Testing Laboratory is for testing drugs samples, sent by the Enforcement Officers. It is further submitted by Mr. Banarjee that there is only one State Drugs Testing Laboratory at Khanapara, Guwahati. Mr. Banarjee, learned Government Advocate has informed and submitted that the purpose of establishing State Drugs Testing Laboratory is for testing drugs samples, sent by the Enforcement Officers. It is further submitted by Mr. Banarjee that there is only one State Drugs Testing Laboratory at Khanapara, Guwahati. The e Enforcement Officers i.e. the Drugs Inspectors including the President of the writ petitioner Association, who is also a Senior Drug Inspector sending sample of drugs and food for testing to the said State Laboratory and Mr. Banarjee has submitted by insisting that the present laboratory is well equipped for functioning. 51. Mr. Banarjee, learned Government Advocate has further submitted that for the entire State of Assam, there is only one State Laboratory with a sole Government Analyst is made for the entire State and in respect of all the drugs which are seized by the Inspector of Drugs, the purpose of having a State Laboratory would be defeated inasmuch as in absence of such appointment, the report of Government Analyst would be inadmissible in the eye of law. It is seen that from the provisions of section 20, it does not put bar that Government has no power to appoint Government Analyst for the whole of the State. For the entire NE Region the Assam State Government Laboratory has been catering the need regarding tastes and analysis. To establish a full fledged well equipped laboratory under the Act is a matter of huge investment and therefore a Central Laboratory for the State under one Government Analyst is workable. Mr.Banarjee also apprised this Court that the State Drugs Testing Laboratory at Khanapara has been run under the management and guidance at respondent No.6, Mr. Gogoi and there is proposal from the Government of India to convert the State Laboratory into Regional Drugs Testing Laboratory under the respondent No.6 to cater the need of entire NE Region. 52. Prior to the appointment of Mr. Gogoi as Government Analyst, State Government appointed Government Analyst from outside the State on contract basis at organised emoluments. Mr. VJ Thomas, retired Drugs Controller of Kerala was appointed on contract basis and during his contract tenure Mr. Gogoi was appointed as Chemist in the State Laboratory. At that time Mr. Gogoi was doing Research work on new formula for various Multinational Company. Mr. Barthakur, learned senior counsel on behalf of Mr. Mr. VJ Thomas, retired Drugs Controller of Kerala was appointed on contract basis and during his contract tenure Mr. Gogoi was appointed as Chemist in the State Laboratory. At that time Mr. Gogoi was doing Research work on new formula for various Multinational Company. Mr. Barthakur, learned senior counsel on behalf of Mr. Gogoi has submitted that despite haying better prospects for future career, outside the State Mr. Gogoi was motivated to serve his State and left his job as Senior Research Fellow and joined as Chemist under the organisation and before appointment as Government Analyst, respondent No.6 had undergone 3 years training under Government Analyst and Head of the Institutions. 53. From the above discussion, the allegation of the writ petitioner Association is not sustainable that respondent No.6 is not an experienced person and that his appointment under section 20 of the Act is illegal. Except the allegation, the writ petitioner Association fails to prove that the respondent No.6 is inexperienced and not qualified. I hold that, respondent No.6 is qualified and experienced to be appointed as Government Analyst and therefore his appointment for the whole State of Assam is legal and the appointment is made in compliance with the provisions of section 20 of the Act. 54. In summing up the cases, it transpires that the petitioner Association and the petitioner Shri CN Bhattacharjee in Civil Rule No. 144 of 1996 invoke Court writ jurisdiction to fill up the post of Controller of Drugs, lying vacant after the retirement of respondent No.4 in this Civil Rule, under the provisions of the Assam Rules, 1994. 55. In view of the reasons stated above the provisions of Rule 11 is struck off and the respondent State is directed to amend the same keeping avenues for promotion to the post of Controller of Drugs by the Government Analyst, as the Act, 1940 and Rules, 1945 have not put any embargo for consideration of the appointment of Government Analyst as Drugs Controller which transpires from provisions of Rule 50A (ii). Apparently, the intention of the legislature is to keep promotional avenues for promoting to the post of Controller of Drugs for both Government Analyst as well as for Inspectors. Accordingly the State Government shall keep provisions to include in concerned provisions of Rules such as Rule 26, to the post of Government Analyst. 56. Apparently, the intention of the legislature is to keep promotional avenues for promoting to the post of Controller of Drugs for both Government Analyst as well as for Inspectors. Accordingly the State Government shall keep provisions to include in concerned provisions of Rules such as Rule 26, to the post of Government Analyst. 56. The allegation of malafide and arbitrariness and favouratism in the appointment of Mr. Gogoi has not been established by the writ petitioner Association with specific proof except the allegations in the petitions. In that view of the matter the allegations are rejected. 57. Writ petitioner Association, in both their petitions, contends that the Assam Drugs Control Organisation Service Rules, 1994 is a rules made under Article 309 of the Constitution and the Government of Assam made such similar rules in respect of many other departments, such as Assam Planning Service Rules, 1990 and therefore in the absence of any illegalities in the rules, the same shall remain valid in the eye of law and the promotion/appointment of person in the cadres mentioned in Rule 3 of the Assam Rules shall be governed by this service rules. In view of my discussions and reasons given hereinbefore, I hold that this contention is not sustainable on the ground that all the provisions of the Act, 1940 and Rules 1945 govern the Drugs Organisation of the State of Assam and no deviation can be made bringing analogy from other statute/rules which may govern the given case only by such State Rules. 58. After discussion made hereinbefore, I also hold that the respondent No.6 Mr. Gogoi is qualified under the provisions of Act and Rules to be appointed as Government Analyst and accordingly his appointment has been upheld. 59. But regarding the promotion of the writ petitioner Mr. CN Bhattacharjee, or any other incumbent, I hold that, the petitioner or any other person of the organisation if he fulfills the requirements under the provisions of Rule 50 and 50A of the Rules, 194.5, respondent-Government can consider his case accordingly. But their promotion cannot be considered under the provisions of Rule 1 of the Assam Rules, 1994 as this provision is struck off as discriminatory and violative of Article 14 and 16 of the Constitution and also for supersedding the statutory provisions of Rule 50A (ii) of the Rules, 1945 which has been enacted under the provisions of the Act, 1940. 60. In view of the above discussion, I hold that a Government Analyst is entitled to come to the zone of consideration for promotion/appointment of Drugs Controller as no bar has been imposed upon by the provisions of the Act and the Rules, 1945. As the provisions of Rule 11 of Assam Rules is silent in regards the classification, recruitment and promotion of the other vital wing of the organisation, the Rules, 1994 suffer with the vice of discrimination and deprivation of legitimate right of some personnel of the organisation. 61. In the result the Civil Rule No. 5458 of 1995 is dismissed as infructuous, Civil Rule No. 144 of 1996 and 444 of 1996 are dismissed on the ground stated above and the Civil Rule No. 1563 of 1996 is allowed. 62. Considering the circumstances parties shall bear their own costs.