Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 301 (GAU)

Jiban Chandra Chakraborty v. State of Tripura

2011-04-05

BIPLAB KUMAR SHARMA

body2011
JUDGMENT Biplab Kumar Sharma, J. 1. This writ petition has been filed, inter alia, with the following prayers:- (i) Issue Notice upon the Respondents to show cause as to why writ of Mandamus and any other Order/Direction of line nature should not be issued quashing and canceling the Memorandum No. F.10(9)DCA/02(SUB)/2971-83, dated, 19.12.2002, issued by the Deputy Drugs Controller. (ii) Issue rule upon the Respondents to Show cause as to why writ of Mandamus any other order/direction of like nature should not be issued, quashing and canceling the Memorandum No. F.10(9)DCA/02(SUB)/2971-83, dated, 19.12.2002, issued by the Deputy Drugs Controller. (iii) Issue notice upon the Respondent to show cause as to why writ of Mandamus and or any other Order/Direction of like nature should not be issued, where by commanding them that, on the basis of the Registration of the Petitioner with the Tripura State Pharmacy Council as Pharmacist, the Petitioner will be treated as competent person under Rule 64 of the Drugs and Cosmetics Rules 1945, without requiring to qualify the evolution test and or any other test exam or course. (iv) Issue Rule upon the Respondent to show cause as to why writ of Mandamus and or any other Order/Direction of like nature should not be issued, whereby Commanding them that on the basis of the registration of the Petitioner with the Tripura State Pharmacy Council as Pharmacist, the Petitioner will be treated as competent person under Rule 64 of the Drugs and Cosmetics Rules 1945, without requiring to qualify the evolution test and or any other test exam or course. 2. The Petitioner obtained diploma in Pharmacy in the year 1975 from the Health Training Institute, Agartala as per educational regulation provided under Pharmacy Act, 1948. He is a registered Pharmacist. Such registration certificate was issued by the Tripura State Pharmacy Council, which is dated 20.9.1978. 3. One Shri Abhijit Dutta Gupta, partner of Sarbamangala Retail Medicine Shop, Agartala desired to open a new retail medicine shop in the name and style of 'Sarbamangala' and consequently applied for issuance of drug license to the competent person to enable him to run the medicine shop. Said Shri Dutta Gupta has chosen the Petitioner as the competent person to take charge of the premises in respect of which the license is to be issued as provided for under Rule 64 of the Drugs and Cosmetics Rules 1945. Said Shri Dutta Gupta has chosen the Petitioner as the competent person to take charge of the premises in respect of which the license is to be issued as provided for under Rule 64 of the Drugs and Cosmetics Rules 1945. The Petitioner also agreed to act as the competent person and there has been an agreement by and between the parties. 4. The Petitioner also filled in all necessary documents indicating therein his intention to act as competent person in respect of the premises of Shri Dutta Gupta in respect of which he has made the prayer for issuance of retail drug license. As noted above, the Petitioner has given consent in writing to act as competent person along with another Pharmacist, Shri Prasun Bhowmik. 5. The Petitioner was asked to participate in the orientation training programme conducted by the Respondent No. 3. The said orientation training programme was of three days commencing from 17.12.2009 to 19.12.2009 (both the days inclusive). The Petitioner duly participated in the said programme, but when he was asked to sit in an evaluation test towards judging the suitability to be the competent person, he declined to do so on the ground that as per the provisions of Rule 64 of the aforesaid Rules of 1945, there is no requirement of further evaluation of a Pharmacist who is already a registered Pharmacist. 6. The Petitioner has put to challenge the Annexure-D memorandum, dated 19.12.2002, issued under the signature of the Deputy Drugs Controller on the subject of orientation training course for competent person/qualified person/licenses. For a ready reference, the memorandum is quoted below: It has been decided in consultation with the Tripura Chemists & Druggists Association to organize training programme on regular basis from January 2003 for considering candidates as competent person/qualified person under Rule 64 of the Drugs & Cosmetics Rules, 1945 as well as generating awareness amongst the retailers and wholesalers. 2. Content, duration of the courses: There shall be separate courses for retail and whole sale business. Courses have been designed to help candidates to perform his/her duties by observing good sales practices as per the law. The duration of the courses will be of 3 (three) days with an evaluation test (objective type) on the last day. 2. Content, duration of the courses: There shall be separate courses for retail and whole sale business. Courses have been designed to help candidates to perform his/her duties by observing good sales practices as per the law. The duration of the courses will be of 3 (three) days with an evaluation test (objective type) on the last day. A certificate of approval will be issued bay the Licensing Authority to the successful candidates, and a certificate of participation in the course to others. 3. Persons holding prescribed qualification and experience as per Rule 64 and the licensees are eligible for attending the course. Tripura Chemists & Druggists Association will forward names of its members for training. 4. Training will be conducted free of cost, but other expenditure shall be borne by the candidates. The medium of instruction will be English, but discussion will be held in Bengali. The training programmes will be held in Aushadh Niyantran Bhawan, at Nehru Office Complex, Gorkhabasti, Agartala, between 11 a.m. to 4 p.m. Each batch will comprise of 25 (twenty five) candidates. 5. Persons who have already been treated as competent person/qualified persons shall also be required to undergo the training in the course of time. Sd/- illegible (A.K. Pal) Deputy Drugs Controller. 7. As per the aforesaid memorandum, the duration of the orientation course would of three days with an evaluation test (objective type) on the last day and that a certificate of approval would be issued by the licensing authority to the successful candidates, and a certificate of participation in the course to others. 8. According to the Respondents, although the Petitioner had participated in the aforesaid training course, but he having refused to sit in the evaluation test, he could not be declared successful in the orientation training course and consequently, a certificate of approval could also not be issued, which would have entitled him for the declaration that he is a person to act as the competent person under the licensee. On the other hand, it is the case of the Petitioner that he being a registered Pharmacist having all the qualifications to act as a Pharmacist, he cannot be subjected to an evaluation test based on a three days orientation programme for a further declaration that he is a competent person. 9. I have heard Mr. P. Roy Barman, learned Counsel for the Petitioner as well as Ms. 9. I have heard Mr. P. Roy Barman, learned Counsel for the Petitioner as well as Ms. AS Lodh, learned State counsel appearing for the Respondents. 10. During the course of their argument, learned Counsel have exclusively referred to the respective pleadings. While Mr. Roy Barman, learned Counsel for the Petitioner submits that on the basis of an executive instruction, the statutory provisions cannot be overridden, Ms. Lodh, learned State counsel submits that the impugned action on the part of the Respondents is on the basis of the power and jurisdiction vested by the provisions of the aforesaid Rules of 1945. She has also raised the question of estoppels inasmuch as the Petitioner having participated in the orientation training course cannot now turn around so as to question the validity of the evaluation test. In this connection, she has also placed reliance on the decision of the Apex Court reported in 2007 AIR SCW 5989 (Union of India and other vs. S. Vinod Kumar and other). 11. I have considered the rival submissions made by the learned Counsel for the parties as well as the materials available on record. In the counter-affidavit filed by the Respondents, it has been contended that irrespective of the provisions of Rule 64 of the aforesaid Rules of 1945, the authority is within its jurisdiction and competence to prescribe a particular qualification (in the instant case, the evaluation test) to judge the person as to whether he is fit to act as competent person as required under Rule 64 of the aforesaid Rules of 1945. It has also been stated that such orientation training course is being imparted ever since the memorandum of 2002 was issued. Further plea of the Respondents is that the Petitioner having duly participated in the orientation programme as an applicant ought to have sit in the evaluation test which was conducted on the last day of the training programme, but instead he declined to sit in the said evaluation test. Consequently, he could not be issued with the certificate of competence. It is the stand of the Respondents that the very conduct of the Petitioner has landed him in trouble in which he finds himself. 12. In S. Vinod Kumar (supra), the question involved was as to whether the participants having participated in the selection process could have challenged the methodology adopted in the selection. It is the stand of the Respondents that the very conduct of the Petitioner has landed him in trouble in which he finds himself. 12. In S. Vinod Kumar (supra), the question involved was as to whether the participants having participated in the selection process could have challenged the methodology adopted in the selection. It was held that the candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. 13. In the instant case, we are not concerned with any selection for appointment. The question involved herein is as to whether as per the requirement of the provisions of Rule 64 of the Rules of 1945, a qualified Pharmacist who is already in possession of the certificate of registration can be asked to sit in an evaluation test for the declaration that he is a competent person. Further, there cannot be any estoppels against law. As has been contended by Mr. Roy Barman, learned Counsel for the Petitioner the aforesaid office memorandum of 2002 being in a nature of executive instruction cannot override the statutory provisions. 14. Rule 64 lays down the conditions to be satisfied before a license is granted or renewed. A license in the particular form shall not be granted or renewed to any person unless the authority empowered to grant the license is satisfied that the premises in respect of which the license is to be granted or renewed are adequate, equipped with proper storage accommodation for preserving the properties of the drugs to which the license applies and are in-charge of a person competent in the opinion of the licensing authority to supervise and control the sale, distribution and preservation of drugs. 15. Second proviso to Rule 64(2) requires the satisfaction of the licensing authority that the premises in respect of which the license is to be given or renewed are (i) of an area of not less than ten square meters; and (ii) in the charge of a competent person, who - (a) is a Registered Pharmacist, or; (b) has passed the matriculation examination or its equivalent examination from a recognized Board with the four years' experience in dealing with sale of drugs, or; (c) holds a degree of a recognized University with one year's experience in dealing with drugs. 16. 16. From the above, what is seen is that a registered Pharmacist is a competent person in consideration of which the licensing authority can derive the necessary satisfaction as reflected in Rule 64 of the aforesaid Rules of 1945. The Rule itself having not prescribed any further evaluation test and that too on the basis of a three days' orientation training course, in my considered opinion, the authority could not have and ought not to have insisted upon for a further evaluation test on the basis of the said training course with the condition that certificate of competence will be issued only on the basis of the said evaluation test. The Petitioner being already a registered Pharmacist and he having held the valid license in his possession could not have been asked to clear the evaluation test and that too on the basis of three days' orientation course. 17. While there cannot be any dispute that such orientation training course may be necessary for upgrading the awareness of the Pharmacists with relevant materials, but it cannot be said that a Pharmacist will be declared as a competent person only on clearing the evaluation test based on the said three days' orientation programme. 18. The impugned memorandum dated 19.12.2002 itself speaks of the orientation training course for "competent person". The memorandum itself having declared that the orientation training course is for competent person, it cannot be said that a certificate to that effect will be issued only on clearing the evaluation test to be conducted on the basis of the said orientation course. 19. In paragraph 9 of the counter-affidavit the Respondents have admitted that there is no specific provisions under Rule 64 of the aforesaid Rules of 1945 specifying the qualification for a person competent to deal with drugs in retail. However, it is the stand of the Respondents the expression "competent person" or "person competent" having not been defined in the Rules, it is within the domain and jurisdiction of the authority to make necessary evaluation to declare a person to be competent person as mentioned in Rule 64 of the aforesaid Rules. I am afraid, taking that plea the Respondents cannot exceed their jurisdiction and that too in violation of the provisions of Rule 64 of the Drugs & Cosmetics Rules 1945. 20. I am afraid, taking that plea the Respondents cannot exceed their jurisdiction and that too in violation of the provisions of Rule 64 of the Drugs & Cosmetics Rules 1945. 20. The Respondents in their counter-affidavit have also enclosed the Annexure-R/1 document in title INSTRUCTION FOR APPLICANT. In the said instruction, dealing with the clause "Approval of qualified/competent persons", it has been stated thus: Every qualified person/competent person shall undergo an orientation training programme for 02 (two) days followed by an evaluation test conducted by the office of the Licensing Authority from the Wednesday to Friday of the week after the 2nd Saturday of every month. However the exact dates should be confirmed from the office over Telephone number-2325868 21. In the aforesaid instruction there is nothing to indicate that for approval of qualified/competent person, a candidate will have to clear the evaluation test. Further, the instruction itself recognizes the fact that the orientation training programme is only for the qualified person/competent person. If that be so, it cannot be said that those qualified persons/competent persons will have to undertake an evaluation test to retain them as qualified person/competent person. In any case, the Respondents cannot act beyond the power and jurisdiction vested on them as per the provisions of the Drugs & Cosmetics Act, 1940 and the Drugs & Cosmetics Rules, 1945. 22. For all the aforesaid reasons, this writ petition is allowed directing the Respondents to act upon the application made by the Petitioner for grant of necessary license in respect of the premises aforementioned. So far the impugned memorandum dated 19.12.2002, relating to issuance of certificate of approval by the licensing authority only to the successful candidates undertaking the evaluation test, same is read down being in conflict with the provisions of Rule 64 of the aforesaid Rules. However, the orientation training course for competent person/qualified person is not interfered with. 23. The writ petition is allowed without, however, any order as to cost. Petition allowed.