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2012 DIGILAW 558 (DEL)

V. K. MITTAL v. UOI

2012-02-14

RAJIV SAHAI ENDLAW

body2012
JUDGMENT RAJIV SAHAI ENDLAW, A.K. SIKRI, ACTING CHIEF JUSTICE: (ORAL) In this writ petition, filed by way of public interest, the Petitioner is challenging the recruitment rules for the post of Drug Controller of India. It may be mentioned at the outset that the main grievance of the Petitioner is that the aforesaid post of the Drug Controller, as per the relevant recruitment rules, is to be filled up by deputation only and submission is that having regard to the sensitive nature of the post and the importance of the functions which the drug controller is required to discharge as per the provisions of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as „the Act?), it is not in public interest that such a post is filled up 100% by deputation including short term contract. The Petitioner perceives so many dangers in filling up of the post in the said manner. 2. Learned counsel for the Petitioner referred to Sections 5, 17, 17A, 17B of the Act to highlight the sensitive nature of the post of Drug Controller. Referring to these provisions, it was argued that the post of Drug Controller is highly technical in nature as it is his duty to regulate the launch of new drugs, monitor the clinical trials and to supervise the import of drugs in the country and their related standards. In terms of the aforesaid provisions, the Drug Controller is both the licensing as well as the controlling authority and is empowered to issue, suspend or cancel licence with respect to manufacture of drugs and cosmetics, apart from the role of regulator. He acts as a key member of the Consultative Committee and Drug Technical Advisory Board, which are statutory in nature. It is, thus, argued that the Drug Controller has very important functions to discharge, which include laying down standard of drugs, cosmetics, diagnostics and devices. He also acts as a regulator by making amendments to the Acts and Rules and also regulates market and authorization of new drugs. The argument is that for such a post preference should be given to long tenure and appointment to this post, should be made on regular basis. He also acts as a regulator by making amendments to the Acts and Rules and also regulates market and authorization of new drugs. The argument is that for such a post preference should be given to long tenure and appointment to this post, should be made on regular basis. It is argued that by bringing the person as Drug Controller by means of deputation, the period whereof may not be certain, the very purpose of the post for which aforesaid important functions are to be discharged by the Drug Controller, is defeated. 3. At this stage, we would like to refer to the relevant recruitment rules for appointment to the post of Drug Controller of India. It is pertinent to state that the recruitment rules are made by the President in exercise of the powers conferred by the proviso to Article 309 of the Constitution which prescribe the method of recruitment to the post of Drug Controller (India). The Rules were made vide notification dated 14.6.2011 and are known as Central Drugs Standard Control Organization [Drugs Controller (India)] Recruitment Rules, 2011 in the Directorate General of Health Services. Rule 4 thereof mentions the „disqualification? and list out the persons who cannot be appointed as the Drug Controller. There is one post of Drug Controller (India) as per the schedule attached to these Rules. Method of recruitment is stated in column 11. As per column 11, the post is to be filled with 100% deputation including short-term contract. The qualifications are stated therein are to the following effect: “Deputation : (including short-term contract) : Officers under the Central/State Government/Union Territories/ Recognized Research Institutions/Public Sector Undertakings/Semi – Government/Autonomous/Statutory Organizations: (a)(i) holding analogous posts on regular basis in the parent cadre / department; or (ii) With 3 years? service in the grade rendered after appointment thereto on a regular basis in posts in Pay Band – 4 `37400-67000 with Grade Pay of `8700 or equivalent in the parent cadre / department; and (b) possessing the following educational qualifications and experience; (i) Graduate degree in Pharmacy or Pharmaceutical Chemistry or in Medicine with specialization in Clinical, Pharmacology or Microbiology from a recognized University established in India by law; (ii) Postgraduate degree in Pharmacy/Pharmaceutical Chemistry / Biochemistry / Chemistry / Microbiology / Pharmacology from a recognized University or equivalent; and (iii) 15 years? experience in manufacture or testing of drugs in a concern of repute or enforcement of the provisions of the Drugs and Cosmetics Act, 1940 and Rules. Desirable (i) : Two years? experience in dealing with problems connected with drugs standardization and control and – import and export of Drugs, and/or administration of the Drugs and Cosmetics Act and Rules. (ii) Ph.D. in Pharmaceutical Sciences “Period of deputation including period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some or other organization department of the Central Government shall ordinarily not to exceed five years. The maximum age-limit for appointment by deputation (including short-term contract) shall be not exceeding 56 years, as on the closing date of receipt of applications.” Note : For the purpose of appointment on deputation (including short term contract) basis, the service rendered on a regular basis by an officer prior to 1-1-2006 (the date from which the revised pay structure based on the 6th Central Pay Commission recommendations has been extended) shall be deemed to be service rendered in the corresponding grade pay / pay scale extended based on the recommendation of the Pay Commission except where there has been merger of more than one pre-revised scale of pay into one grade with a common grade pay / pay scale, and where this benefit will extend only for the post(s) for which that grade pay/pay scale is the normal replacement grade without up gradation.” 4. The Rules also provide consultation with Union Public Service Commission. As per the Rules, it would be necessary to consult with Union Public Service Commission on each occasion when the appointment is to be made to the aforesaid post. A reading of the column relating to qualifications would reveal that there are essential qualifications which cannot be relaxed and then there are desirable qualifications which a candidate is required to possess. These qualifications are inconsonance with Rules 49A and 50A of the Drugs and Cosmetics Rules, 1945. It is also necessary to point out here that a person with the aforesaid qualifications though appointed on deputation, the deputation period is five years. These qualifications are inconsonance with Rules 49A and 50A of the Drugs and Cosmetics Rules, 1945. It is also necessary to point out here that a person with the aforesaid qualifications though appointed on deputation, the deputation period is five years. When we keep in mind the essential and desirable qualifications which are stipulated for this post and the tenure of five years fixed for a person who is appointed through deputation, almost all apprehensions of the Petitioner expressed in this petition are taken care of. The essential qualifications disclose that a candidate who is to be considered for this post is required to be holding analogous posts on regular basis in the present cadre/department. This would mean that a person who is already holding almost equivalent/similar posts on regular basis in the parent cadre/department is considered for appointment to this post on deputation. The prescription of minimum pay scale which is almost equivalent to that of Drug Controller, further fortifies this. Educational qualifications and experience mandate that such a candidate should have a graduate degree in Pharmacy or Pharmaceutical Chemistry or in Medicine with specialization in Clinical, Pharmacology or Microbiology from a recognized University established in India. He should also have a postgraduate degree in Pharmacy in the aforesaid disciplines from a recognized University or equivalent. Not only this, the eligibility condition further prescribes 15 years experience in manufacture or testing of drugs in a concern of repute or enforcement of the provisions of the Act and Rules contained therein. When we look into the desirable qualifications contained in these Rules, a candidate is expected not only to have two years experience in dealing with problems connected with drugs standardization and control but also the import and export of drugs and/or administration of the Act and Rules. A candidate with Ph.D. in Pharmaceutical Sciences is to be given preference. Thus, a person who possesses these essential and desirable qualifications would necessarily not only have requisite educational qualifications but experience in this very field for which he would take charge as Drug Controller. As mentioned above, the 15 years experience in manufacture or testing of drugs in a concern of repute or enforcement of the provisions of the Act and Rules as well as administration of the Act and Rules is also prescribed. 5. As mentioned above, the 15 years experience in manufacture or testing of drugs in a concern of repute or enforcement of the provisions of the Act and Rules as well as administration of the Act and Rules is also prescribed. 5. No doubt a person who is selected for this post comes on deputation but at the same time deputation period is five years. Once a person is appointed on deputation for a period of 5 years, the tenure is secured. We may note that one of the arguments of learned counsel for the Petitioner was that a person who comes on deputation can always be sent back prematurely and there is no security of tenure. However, it is necessary to state that if once a particular tenure of deputation is fixed, this tenure cannot be cut short prematurely without any justifiable cause. In Union of India v. V. Ramakrishnan, (2005) 8 SCC 394 the Apex Court has held thus: “32. Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post-haste manner also indicates malice. [See Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia, (2004) 2 SCC 65 , para 25]” 6. It is clear from the aforesaid that in case the tenure is shortened without any sufficient cause or in an arbitrary manner, such a deputationist has a right to challenge this action. Furthermore, merely because a person who is on deputation can be sent back at the will of the post department would not be a ground to hold that such a Rule is bad in law. Furthermore, merely because a person who is on deputation can be sent back at the will of the post department would not be a ground to hold that such a Rule is bad in law. It is for the employer to lay down the Rule for appointment to a particular post unless the Rules are found to be discriminatory or against the provisions of the Act/Constitution, this Court cannot sit in judicial review and determine as to whether such a Rule is bad or there could have been a better Rule for appointment. These matters are to be left to the expert bodies and/or the employer. We, thus, find no merit in this writ petition which is accordingly dismissed. We record here that learned counsel for the Respondent had argued that this writ petition in public interest is not maintainable as it is a service matter and further based on newspaper reports. Since we are dismissing the writ petition on merits, we leave the aforesaid question of law.