IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.01.2009 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Writ Petition No.37869 of 2007 and M.P.No.2 of 2007 1.Dr.Janardhanan, M.D (s) Asst. Medical Officer, Primary Health Centre, Vaduganthangal, Vellore District. 2.Dr.V.Velpandian, M.D(s) Asst. Lecturer, Govt. Siddha Medical College, Arumbakkam, Chennai – 600 106. 3.Dr.Pitchia Kumar, M.D(s) Asst. Lecturer, Govt. Siddha Medical College, Arumbakkam, Chennai – 600 106. 4.Dr.Karolin Daisy Rani, M.D(s) Asst. Lecturer, Govt. Siddha Medical College, Arumbakkam, Chennai – 600106. ..Petitioners VS 1.The Secretary to Government, Health & Family Welfare Dept. Fort St. George, Chennai – 600 009. 2.The Special Commissioner of Indian Medicine and Homoeopathy, Chennai – 600 106. 3.Dr.Baskar Suresh Kumar, State Licensing Authority for Licensing of Ayurveda, Siddha and Unani Drugs, Arumbakkam, Chennai – 600 106. ..Respondents https://hcservices.ecourts.gov.in/hcservices/ Prayer:- Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified mandamus to call for the records relating to the impugned order G.O.(Ms) No.420 dated 07.11.2007 and issued by the Secretary to Government, Health & Family Welfare Dept, the first respondent herein and quash the same and consequently direct the Secretary to Government, Health & Family Welfare Dept, the first respondent herein, to consider and appoint any one of the petitioners especially the first petitioner as the Licensing Authority for licensing Ayurveda, Siddha and Unani Drugs for the whole State of Tamil Nadu. For Petitioners : Mr.J.Thilagaraj For Respondents For R1 and R2 : Mrs.Malarvizhi Udhayakumar Special Govt.Pleader ORDER By consent of the learned counsel for both parties, the writ petition is taken up for final disposal. 2.Challenging the appointment of the third respondent as Licensing Authority under the Drugs and Cosmetics Act, 1940 (hereinafter referred to as "the Act"), for Ayurvedha, Sidha and Unani drugs the petitioners have come forward with this writ petition. The petitioners claim that they are fully qualified to be appointed as Licensing Authority under the Act as they satisfy Rule 49-A of the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as "the Rules") whereas, according to the petitioners, the third respondent does not satisfy the qualifications prescribed in the said provision. 3.The contention of the respondents 1 to 3 is that in respect of Ayurvedic, Siddha and Unani drugs, one need not satisfy the qualifications prescribed in Rule 49-A of the Rules and instead the candidate should satisfy Rule 162-A of the Rules. Therefore, according to the respondents, since the third respondent satisfies the said requirements of Rule 162-A of the Rules, he was rightly appointed. 4.From the above rival stands taken, now the question is whether in respect of Ayurvedic, Siddha and Unani drugs, a candidate has to satisfy the qualifications prescribed in Rule 49-A of the Rules or Rule 162-A of the said Rules. 5.Prior to the amendment made in the year 1982, the Act did not embrace into its ambit Sidha, Ayurvedha and Unani drugs. By means of Amendment Act 68 of 1982 provisions were made in respect of drugs relating to Ayurveda, Siddha or Unani Tibb Systems of Medicines also. The definition of term "drug" was amended, so as to include Ayurveda, Siddha or Unani Tibb Systems of Medicines specified in the schedule. Prior to the said amendment, there was only one Board known as "the Drugs Advisory Board" constituted under Section 5 of https://hcservices.ecourts.gov.in/hcservices/ the Act. By means of amendment, in relation to Ayurvedic, Siddha or Unani drugs, "Ayurvedic, Siddha and Unanai Drugs Technical Advisory Board" was constituted under Section 33(C) of the Act. Similarly, in respect of Ayurveda, Siddha and Unani drugs, a separate Government Analyst is appointed by the Central Government or a State Government under Section 33-F of the Act and in respect of other drugs or cosmetics a Government Analyst is appointed by the Central Government or a State Government under Section 20 of the Act. In the same manner, "Inspector" in relation to Ayurveda, Siddha or Unani drug is appointed by the Central Government or State Government under Section 33-A of the Act and in relation to all the other drugs and cosmetics an "Inspector" is appointed by the Central government or State Government under Section 21 of the Act. 6.Correspondingly, the Rules were also amended and separate provisions have been made in respect of Ayurveda, Siddha or Unani drugs. Part V of the Rules deals with Government Analysts, Inspectors, Licensing Authorities and Controlling Authorities in respect of drugs and cosmetics other than homeopathic medicines and Ayrveda, Siddha or Unani drugs. In respect of Homeopathic medicines separate provisions have been made in Part VI-A of the Rules. Similarly, in respect of Ayurvedic, Siddha or Unani drugs Part XVI has been introduced in the Rules. Under Rule 49 of the Rules which falls within Part V, qualifications of Inspectors have been provided for. Similarly, in Rule 49-A of the Rules which also falls in the same Part of the Rules, qualifications of a Licensing Authority have been prescribed. Since these two provisions fall within Part V, there can be no difficulty in holding that the qualifications of the Licensing Authority prescribed in Rule 49-A of the Rules relate only to the Licensing Authority in relation to Drugs and Cosmetics other than Aurvedic, Siddha, Unani or Homeopathic. 7.In relation to Homeopathic medicines, a Licensing Authority is to be appointed under Section 67-A of the Act whose qualifications have not been separately given. Therefore, the qualifications prescribed in Rule 49-A of the Rules are applicable for appointment of Licensing Authorities appointed under Rule 67-A of the Rules. 8.In respect of Ayurvedic, Siddha or Unani drugs, Rule 152 speaks of the power of the Government to appoint Licensing Authorities which is to the following effect:- "152.Licensing authorities:- For the purpose of this Part the State Government shall appoint such licensing authorities and for such areas as may be specified in this behalf by notification in the Official Gazette." (Emphasis applied) 9.Rule 162-A speaks of the qualifications for State Drug Licensing Authority for licensing of Ayurveda, Siddha and Unani drugs which reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "162-A.Qualifications for State Drug Licensing Authority for licensing of Ayurveda, Siddha and Unani drugs.(a) The Ayrvedic/ Siddha/ Unani qualifications as per Schedule II of Indian Medicine Central Council Act, 1970 (84 of 1970) B.Pharma (Ayurveda) of a recognised University. (b)At last 5 years experience in the Aurveda/Siddha/Unani drug manufacturing or testing of Ayurvedic, Siddha and Unani drugs or enforcement of provisions of Chapter IV-A of the Drugs and Cosmetics Act, 1940 and rules made thereunder or teaching/research on clinical practice of Aurveda/ Siddha/Unani System." This provision has been specifically made in relation to Licensing Authority in respect of Ayurvedic, Siddha and Unani drugs. 10.A close analysis of the entire scheme of the Act and Rules would make it clear that separate provisions have been made to deal with Ayurvedic, Siddha and Unani drugs which are different from the other drugs. As I have already stated, Rule 49-A of the Rules deals with Licensing Authority in respect of drugs other than Ayurvedic, Siddha and Unani only. In respect of Ayurvedic, Siddha and Unani drugs, Rule 162-A of the Rules alone is applicable. 11.In the case on hand, there is no controversy that the third respondent satisfies the qualifications prescribed in Rule 162-A of the Rules. Therefore, I have to hold that there is no infirmity in the order appointing the third respondent as Licensing Authority for Ayurvedic, Siddha and Unani drugs. 12.In the result, the writ petition fails and accordingly, the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar jbm To 1.The Secretary to Government, Health & Family Welfare Dept. Fort St. George, Chennai – 600 009. 2.The Special Commissioner of Indian Medicine and Homoeopathy, Chennai – 600 106. https://hcservices.ecourts.gov.in/hcservices/ 3.The State Licensing Authority for Licensing of Ayurveda, Siddha and Unani Drugs, Arumbakkam, Chennai – 600 106. + 1 c.c. to The Government Pleader. S.R.No.4368. Order made in W.P.No.37869 of 2007 NTK (CO) GSK 06.02.2009. https://hcservices.ecourts.gov.in/hcservices/