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2015 DIGILAW 1545 (GAU)

Munindra Chandra Deka v. State of Assam

2015-12-18

UJJAL BHUYAN

body2015
JUDGMENT AND ORDER : Ujjal Bhuyan, J. Heard Mr. P. Pathak, learned Sr. Counsel for the petitioner, Mr. JMA Choudhury, learned Standing Counsel, Health Department and Mr. U.K. Nair, learned counsel for the respondent No. 6. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 24.12.2014 issued by the Commissioner and Secretary to the Govt. of Assam, Health and Family Welfare Department entrusting respondent No. 6 as Registrar of Assam Pharmacy Council. 3. Shorn of details essential facts may be briefly noted. 4. Petitioner is a registered Pharmacist having the degree of Bachelor of Pharmaceutical Sciences. He was initially appointed as Inspector of Drugs in the year 1983 and was ultimately appointed as Drug Controller of Assam in the month of December, 2013. On attaining the age of superannuation, he retired from service on 31.10.2014. Petitioner was also holding the post of Registrar of Assam Pharmacy Council since the year 2008. It is stated that his registration under the Pharmacy Act, 1948 is valid upto 31.12.2017. Therefore, notwithstanding his superannuation from service as Drug Controller, petitioner would have been entitled to continue as Registrar of Assam Pharmacy Council till 31.12.2017. However, by the impugned order dated 24.12.2014, Govt. of Assam has entrusted respondent No. 6 the duties of Registrar of Assam Pharmacy Council. Hence, the writ petition. 5. In his brief submission, Mr. Pathak, learned Sr. Counsel for the petitioner submits that such entrustment of respondent No. 6 as Registrar of Assam Pharmacy Council is absolutely contrary to the provisions of the Pharmacy Act and is therefore ex-facie illegal. Under Section 26(a), the appointing authority of Registrar is the Pharmacy Council, but before making such appointment previous sanction of the State Government would be necessary. The impugned order does not disclose that such a procedure was followed. He submits that Registrar of Assam Pharmacy Council is an important office entrusted with important functions. There are about 7000 registered pharmacists in the State of Assam out of which about 1300 are in service under the State Government and about 700 under the National Health Mission. Therefore, the Registrar is required to verify and monitor the activities of the Pharmacists. In the absence of a Registrar duly appointed, it would severely hamper the functioning of the Pharmacy Council. He therefore prays for interference in the matter. 6. Mr. Therefore, the Registrar is required to verify and monitor the activities of the Pharmacists. In the absence of a Registrar duly appointed, it would severely hamper the functioning of the Pharmacy Council. He therefore prays for interference in the matter. 6. Mr. JMA Choudhury, learned Standing Counsel, Health Department has produced the record and submits that he would go by the record of the case. He however submits that there is nothing unusual about the procedure adopted which practice was followed in the past. As a matter of fact, petitioner was also entrusted with the Office of Registrar of Assam Pharmacy Council in similar manner. 7. Similar submission has been made by Mr. U.K. Nair, learned counsel appearing on behalf of respondent No. 6. He further submits that having availed the benefit of the Office of Registrar in the similar manner, it would not be open to the petitioner to question the appointment of respondent No. 6 as untenable. He further submits that even if assuming that there was some deficiency in the initial order of entrustment, the same has been rectified by resolution No. 5 adopted by the Assam Pharmacy Council in its meeting held on 07.02.2015, proceedings of which have been placed on record. He also submits that respondent No. 6 has been appointed as Registrar by following the same procedure which had been consistently followed by the State in the past, including while appointing the petitioner. Therefore no interference is called for. 8. Submissions made by learned counsel for the parties have received the due consideration of the Court. Record produced by Mr. Choudhury, learned Standing Counsel has also been perused. 9. Subject matter of challenge in this writ petition is the appointment of respondent No. 6 as Registrar of Assam Pharmacy Council. Respondent No. 6 was entrusted with the Office of Registrar of Assam Pharmacy Council by the impugned order dated 24.12.2014 which as pointed out by Mr. Nair, learned counsel for respondent No. 6 has been confirmed by the Assam Pharmacy Council. At the outset impugned order dated 24.12.2014 may be referred to which is extracted hereunder for ready reference:- "orders By The Governor Of Assam Notification Dtd. Dispur the 24th December, 2014 No. HLA. 706/2014/82: The Governor of Assam is pleased to enthrust Sri Prasanna Kr. Nair, learned counsel for respondent No. 6 has been confirmed by the Assam Pharmacy Council. At the outset impugned order dated 24.12.2014 may be referred to which is extracted hereunder for ready reference:- "orders By The Governor Of Assam Notification Dtd. Dispur the 24th December, 2014 No. HLA. 706/2014/82: The Governor of Assam is pleased to enthrust Sri Prasanna Kr. Sarma, Office Assistant, Assam Pharmacy Council, Guwahati as Registrar of Assam Pharmacy Council (APC) as per provision of Section 26 (a) of the Pharmacy Act, 1948 with immediate effect and until further orders." 10. From a perusal of the impugned order, it is seen that it was an order passed by the State in the name of the Governor entrusting respondent No. 6 as Registrar of Assam Pharmacy Council as per provisions of Section 26(a) of the Pharmacy Act. 11. Section 26 of the Pharmacy Act deals with staff, remuneration and allowances. As per Section 26(a), the State Council may with the previous sanction of the State Government, appoint a Registrar who shall also act as Secretary and if so decided by the State Council, as the Treasurer of the State Council. Section 26 of the Pharmacy Act reads as under:- "26. Staff, remuneration and allowances-The [State] Council may, with the previous sanction of the [State Government]- (a) appoint a Registrar who shall also act as Secretary and, if so decided by the [State] Council, treasurer, of the [State] Council; (b) appoint such other officers and servants as may be required to enable the [State] Council to carry out its functions under this Act; (c) fix the salaries and allowances and other conditions of service of the Secretary and other officers and servants of the [State] Council; (d) fix the rates of allowances payable to members or the [State] Council. Provided that for the first four years from the first constitution of the [State] Council, the Registrar shall be a person appointed by the [State Government], who shall hold office during the pleasure of the [State Government]." 12. Though the proviso to Section 26 empowers the State Government to appoint a person as Registrar within the first 4 years of constitution of the State Council, it is admitted at the Bar that the said proviso is not attracted in the present case because Assam Pharmacy Council was constituted more than 4 years ago. Though the proviso to Section 26 empowers the State Government to appoint a person as Registrar within the first 4 years of constitution of the State Council, it is admitted at the Bar that the said proviso is not attracted in the present case because Assam Pharmacy Council was constituted more than 4 years ago. That leaves Clause-(a) of Section 26 which as already noticed above empowers the State Council to appoint a Registrar with the previous sanction of the State Government. 13. A careful analysis of Section 26 would show that the appointing authority of Registrar is the Assam Pharmacy Council but before appointment is made, sanction of the State Government is required to be taken. A reading of the impugned order dated 24.12.2014 on the other hand shows that the State in the name of the Governor had entrusted respondent No. 6 as Registrar of Assam Pharmacy Council. Certainly, this is not as per the procedure laid down in Section 26 (a), though Mr. Nair, learned counsel for respondent No. 6 would like to contend that in view of resolution No. 5 of Assam Pharmacy Council dated 07.02.2015 appointment of respondent No. 6 stood confirmed and thereby there is substantial compliance with the requirement of Section 26(a). To appreciate the submission of Mr. Nair, learned counsel for respondent No. 6, the impugned resolution is extracted hereunder:- "Resolution No: 5 The appointment of P.K. Sarma as Registrar, U/S 26 (a) of Pharmacy Act, 1948 confirmed by the council." 14. A reading of the aforesaid resolution would show that the Assam Pharmacy Council had proceeded on the basis that the entrustment of respondent No. 6 as Registrar by the State was an appointment which had been confirmed by the said resolution. I am afraid such an interpretation, if accepted, would do violence to the clear and unambiguous language of the statute i.e., Section 26 (a). 15. At this stage, the record produced by Mr. Choudhury, learned Standing Counsel, Health Department may be perused. Note dated 07.11.2014 as contained in the note-sheet indicates that Smt. Anjali Sarma, wife of respondent No. 6 had made a request to the Hon'ble Chief Minister, Assam by a letter dated 18.10.2014 for appointment of her husband as Registrar of Assam Pharmacy Council. There is an endorsement of Hon'ble Chief Minister on the said application and thereafter the prayer of respondent No. 6 was processed. There is an endorsement of Hon'ble Chief Minister on the said application and thereafter the prayer of respondent No. 6 was processed. The record also discloses a note of the Agriculture and Parliamentary Affairs Minister dated 21.10.2014 requesting the Health Minister to release the petitioner from the post of Registrar and to entrust one Sri Sudhir Ch. Saha as Registrar of Assam Pharmacy Council. Prior to that the Agriculture Minister had also requested the Hon'ble Chief Minister on 15.09.2014 with a similar prayer. As noticed above, on the basis of the endorsement of Hon'ble Chief Minister the impugned order came to the issued. 16. It is trite that when a law requires a thing to be done in a particular manner, than it has to be done in the manner prescribed and in no other way. This salutary principle of administrative law has been consistently followed by the constitutional Courts of our country. In the present case, the manner of appointment of Registrar of Pharmacy Council is laid down in Section 26(a). There is no good reason to make a departure from the same in the present case. 17. Before parting with the record, it would be apposite to briefly highlight the importance of the office of the Registrar, Assam Pharmacy Council. Under Section 26 A, he is entrusted with the authority to verify any inspection carried out by Inspector of Drugs in premises where drugs are compounded or dispensed with. He is also vested with the authority to examine any report submitted by such Inspector regarding contravention of any provisions of the Pharmacy Act. The Registrar is also mandated to issue registration to and scrutinise applications for registration as Pharmacists. Under Assam Pharmacy Council Rules framed in exercise of powers conferred by Section 46(2) of the Pharmacy Act, it is provided that the Registrar shall be in direct charge of the management of all properties of the State Pharmacy Council. Thus it goes without saying that in so far the health sector of the State is concerned, Registrar of Assam Pharmacy Council plays a pivotal role. Therefore, it is of utmost importance that the statutory procedure prescribed for appointment of Registrar is scrupulously followed. The statutory procedure for appointment of Registrar shall therefore have to be complied with notwithstanding deviations made in the past. It goes without saying that two wrongs do not make a right. Therefore, it is of utmost importance that the statutory procedure prescribed for appointment of Registrar is scrupulously followed. The statutory procedure for appointment of Registrar shall therefore have to be complied with notwithstanding deviations made in the past. It goes without saying that two wrongs do not make a right. If a wrong was committed in the past the same cannot be a ground to continue with such wrong for all times to come. 18. That being the position, this Court is of the unhesistant view that impugned order dated 24.12.2014 is contrary to the provisions of Section 26(a) of the Pharmacy Act and is clearly unsustainable. It is accordingly set aside and quashed. 19. Matter is remanded back to the Assam Pharmacy Council to appoint a Registrar strictly in accordance with law. The procedure to be followed may be notified by the Assam State Council. It is expected that prompt steps shall be taken to fill up the resultant vacancy. 20. Record produced by Mr. Choudhury, learned Standing Counsel, Health Department is returned back. 21. Writ petition is accordingly allowed. No cost.