JUDGEMENT
ATTAU RAHMAN MASOODI,J. -
(1.)"Heard learned counsel for the petitioners.
It is strange to note that the advertisement stated to have been issued on 10.08.2016 is in the teeth of full bench judgment rendered by this Court in a bunch of writ petitions leading case being W.P.No.46079 of 2010 decided on 10.04.2014.
The petitioners have asserted that their exclusion from the zone of consideration has occasioned on account of the incorporation of the condition of experience in the advertisement, although except petitioner no.1 the other petitioners have failed to apply. It is also stated that the Commission on account of this anomaly had not proceeded with the process of selection for about four years. The selection process through interviews adhering to the same conditions was reiterated and notified by letter dated 24.12.2020. The petitioners having come to know about the faulty process have thus approached this Court.
It is well settled that every advertisement for recruitment in public service must proceed strictly in accordance with the statutory rules. In the present case the full bench judgment which ought to have been adhered to for this purpose also seems to have been side tracked for no valid reason and thereby the zone of consideration is sought to be frozen. All the petitioners are possessed with the requisite eligibility since prior to the date of advertisement,therefore, it cannot be said that the requisite qualification was acquired by the petitioners after the date of advertisement.
The delay in approaching this Court is a circumstance unfavourable to the petitioners but an illegality going to the root of the process of selection cannot be viewed lightly by this Court.
In the circumstances of the case, the petitioners are permitted to make a representation to the opposite party no.1 within a period of ten days' from today. In case a representation is filed, the same shall be decided by the opposite party no. 1 passing a reasoned and speaking order. The order so passed be communicated to the petitioners without any delay.
Until decision on the representation filed by the petitioners, the selection held, if any, may not be acted upon.
The writ petition is accordingly disposed of."
(2.)Before the aforesaid order could be signed, Sri Ashok Shukla, learned counsel for U.P. Public Service Commission brought to the notice to this Court an amendment made in the relevant Service Rules, 1995 notified on 18.11.2015 titled as U.P. Food and Drug Administration Department Gazetted Officers' (Drugs) Service (Third Amendment) Rules, 2015. This amendment brought in the parent rules has been promulgated in exercise of the powers under Article 309 of Constitution of India. The comparative position of the relevant provision i.e. Rule-8 is reproduced below.
JUDGEMENT_130_LAWS(ALL)1_2021_1.html
(3.)It may be noted that the Central Government, in exercise of the powers vested by virtue of Section 33 read with Section 21 of the Drugs and Cosmetics Act, 1940, had promulgated the statutory rules in the year 1945 known as Drugs and Cosmetics Rules, 1945 whereunder Rule 49 reads as under:
"49. Qualifications of Inspectors.--A person who is appointed an Inspector under the Act shall be a person who has a degree in Pharmacy or Pharmaceutical Sciences or Medicine with specialisation in Clinical Pharmacology or Microbiology from a University established in India by law:-
Provided that only those Inspectors--
(i) who have not less than 18 months' experience in the manufacture of at least one of the substances specified in Schedule C, or
(ii) who have not less than 18 months' experience in testing of at least one of the substances in Schedule C in a laboratory approved for this purpose by the licensing authority, or
(iii) who have gained experience of not less than three years in the inspection of firm manufacturing any of the substances specified in Schedule C during the tenure of their services as Drugs Inspectors;
shall be authorised to inspect the manufacture of the substances mentioned in Schedule C:
Provided further that the requirement as to the academic qualification shall not apply to persons appointed as Inspectors on or before the 18th day of October, 1993."
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