IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.23871 of 2009 and M.P.Nos.1 and 2 of 2009 V.Ilamaran ... Petitioner Vs 1.The State of Tamil Nadu Rep. By its Secretary, Department of Health and Family Welfare, Fort ST.George, Chennai – 600009. 2.Union of India, Rep. By its Secretary to Government, Department of Health and Family Affairs, New Delhi. 3.The Director of Medical Services & Family Planning,Chennai – 600 018. 4.The Director of Drugs Control, Chennai – 600 006. 5.The Secretary, Tamil Nadu Public Service Commission, Omandurar Government Estate, Anna Salai, Chennai – 600 002. ... Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, Calling for the records of the 1st Respondent made in G.O. (Ms) No.74 dated 18.02.2009 and the consequent Notification No.198 of the 5th Respondent dated 18.04.2009 and quash the same and consequently direct the 1st respondent to recruit the Drug Inspectors in accordance with Rule 49 of Rules framed under Drugs and Cosmetics Rules 1945. For petitioner : Mr.M.Suresh Viswanath For Respondents : Mrs.E.Renganayaki,G.A. For R1,R3 and R4 Ms.C.N.G.Ezhilarasi for R5 O R D E R Heard both sides. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner has come forward with the present writ petition, challenging the order of the Government in G.O.Ms.No.74 Health Department dated 18.02.2009 and the consequential notification issued by the fifth respondent dated 18.04.2009 in respect of recruitment of Drug Inspectors and after setting aside the same seeking for a direction to the first respondent State to recruit the Drug Inspectors in accordance with Rule 49 of the Drugs and Cosmetics Rules, 1945. 3. By the impugned order of the State Government, the Special Rules under the Tamil Nadu Medical Service was amended and was also made to come into force from 18.02.2009. The amendment prescribed the qualification for the post of Drug Inspector, which is as follows: "Must possess a degree in Pharamacy or Pharamaceutical Sciences or Medicine with specialisation in clinical Pharmacology or Microbiology from a University or institution recognised by the University Grants Commission for the purpose of grant." 4. It is pursuant to the said amendment, the Tamil Nadu Public Service Commission (TNPSC) has given advertisement No.198. The said advertisement called for applications for the post of Drug Inspectors in respect of 24 vacancies. The educational qualification was also prescribed as per the amended Rules. 5. It is the case of the petitioner that the State Government cannot prescribe on their own any qualification and in so far as the Drug Inspectors is concerned, the qualification must conform to proviso to Rule 49 of the Drug and Cosmetics Rules, 1945. The amendment in so far as it is not in tune with Rule 49, the State Government lacks power in making such advertisement. Hence, the amendment to the Special Rules as well the consequential notification is invalid. It was also stated that the Drug and Cosmetics Act, 1940 is a central law and the State Government cannot in the guise of framing Service Rules go contrary to the requirement prescribed under the Central Act for the purpose holding the post of Drug Inspector. 6. Mr.Suresh Viswanath, learned counsel for the petitioner submitted that the Drug Inspectors are appointed in terms of Section 21 of the Drugs and Cosmetics Act, 1940. The qualification for the said post has been prescribed under Rule 49. Rule 49 prescribes a proviso. In respect of schedule 'c', the Drug Inspector must have proper experience. 7. In support of his contention, the learned counsel relied upon a judgment of the Supreme Court in Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and others reported in (2006) 4 SCC 327 for the purpose of stating that a subordinate legislation must conform to not only the provisions of the parent Act but also to the provisions of other Acts. 8. The questions raised in this writ petition are squarely https://hcservices.ecourts.gov.in/hcservices/ answered by this Court in P.Elango v. The State of Tamil Nadu and others in W.P.No.11973 of 2009 dated 06.11.2009. After considering elaborately, in paragraphs 24 and 26, it was observed as follows:- "24. In any event, this Court had already held that the present advertisement is only for the post of Drug Inspector and nowhere it is stated that such a Drug Inspector will also be sent to inspect the manufacture of the substances mentioned in Schedule ‘C’. That stage is yet to arrive in the present case. It must also be noted that the Central Act, 1940, viz., Drugs and Cosmetics Act, 1940 deals with many classes of drugs and also by a subsequent amendment even cosmetics have been brought into the provisions of the Act. Therefore, an Inspector under the Act has multifarious roles. Therefore, at this stage, this Court cannot presume that the Drug Inspectors appointed by the State Government will also perform the duties, which will be in conflict with proviso to Rule 49. Unless it is shown that a Drug Inspector will be sent to inspect a manufacturer, manufacturing ‘Schedule ‘C’ drugs, this Court cannot presume that any appointment of a Drug Inspector will lead to conclusion that they will perform all roles including inspection of ‘C’ Schedule manufacturers. 26. The other contention raised by the learned counsel that the State Government cannot amend its own service rules in terms of Article 309 of the Constitution and it has to be made only by the Central Government by an appropriate statutory amendment to the Rules, cannot be countenanced by this Court. An Inspector functioning under the Act also belongs to a State service. Therefore, it is open to the State Government to prescribe Rules under Article 309 of the Constitution and it cannot be compelled to go before the Central Government for making amendment even for appointment of Drug Inspectors. First of all in the present case, in respect of educational qualification, there is no violation of the statutory rule prescribed under the Drugs and Cosmetics Rules, 1945. What is pressed into service is the first proviso to Rule 49. As already stated, it is only with reference to empowering an Inspector to inspect Schedule ‘C’ manufacturers. Therefore, this court is unable to countenance the contentions raised by the petitioner." 9. The said matter was taken on appeal to a Division Bench by the aggrieved petitioner in W.A.No.1689 of 2009. The Division Bench presided by H.L.Gokhale, C.J. by a judgment dated 24.11.2009 dismissed the writ appeal. In paragraph 6, it was observed as follows: "6. ...In the facts of the present case, however, what is seen is that in view of paucity of candidates with https://hcservices.ecourts.gov.in/hcservices/ experience, the State had to enlarge the zone of consideration. The State, therefore, issued G.O deleting the requirement of experience. The government Pleader has pointed that under Section 21 of the Drugs and Cosmetics Act, 1940, it is for the State Government, as also the Central Government, to appoint such persons, as it thinks fit, having prescribed qualifications to be the Drugs Inspector. In the instant case, the qualification part is not altered. It is only the experience part, which is deleted for direct recruitment. It has been laid down by the Apex Court in Yogesh Kumar v. Govt. of NCT, Delhi, 2003 (3) SCC 548 that it is for the recruiting authority to decide the policy of recruitment, the source and the qualification, which it ought to prescribe for a particular post, and for which the advertisement is issued. In the instant case, there is a valid explanation given as to why the experience part has been postponed." 10. In the light of the above, the challenge made to the impugned order cannot be countenanced by this Court. Hence, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar svki To 1.The Secretary, The State of Tamil Nadu Department of Health and Family Welfare, Fort ST.George, Chennai – 600009. 2.The Secretary to Government, Union of India, Department of Health and Family Affairs, New Delhi. 3.The Director of Medical Services & Family Planning,Chennai – 600 018. https://hcservices.ecourts.gov.in/hcservices/ 4.The Director of Drugs Control, Chennai – 600 006. 5.The Secretary, Tamil Nadu Public Service Commission, Omandurar Government Estate, Anna Salai, Chennai – 600 002. + One CC to the Govt.Pleader SR 10058 W.P.No.23871 of 2009 JRG(CO) https://hcservices.ecourts.gov.in/hcservices/