Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 4597 OF 2019
(arising out of SLP (Civil) No(s). 8494 of 2018)
THE MAHARASHTRA PUBLIC SERVICE
COMMISSION THROUGH ITS SECRETARY ...APPELLANT(S)
VERSUS
SANDEEP SHRIRAM WARADE
AND OTHERS ...RESPONDENT(S)
WITH
CIVIL APPEAL NO(s). 45984601 OF 2019
(arising out of SLP (Civil) No(s). 1162629 of 2019)
(Diary No.30422/2017)
THE MAHARASHTRA PUBLIC SERVICE
COMMISSION THROUGH ITS SECRETARY ...APPELLANT(S)
VERSUS
SUHAS SUDHAKARRAO LAVHEKAR
AND OTHERS ETC. ETC. ...RESPONDENT(S)
CIVIL APPEAL NO(s). 4602 OF 2019
(arising out of SLP (Civil) No(s). 11631 of 2019)
(Diary No.20959/2018)
ASHOK TUKARAM BARDE ...APPELLANT(S)
VERSUS
THE MAHARASHTRA PUBLIC SERVICE
COMMISSION THROUGH ITS SECRETARY
AND OTHERS ...RESPONDENT(S)
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
Date: 2019.05.03
17:08:56 IST
Reason:
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JUDGMENT
NAVIN SINHA, J.
Delay condoned. Leave granted.
2. The appellants are aggrieved by the orders of the High
Court holding that candidates possessing the requisite years of
experience in research and development of drugs and testing of
the same, are also eligible to be considered for appointment to
the post of Assistant Commissioner (Drugs) and Drug
Inspectors under separate advertisements dated 04.01.2012
and 31.03.2015.
3. Learned counsel for the appellants submitted that
academic qualifications coupled with the requisite years of
practical experience in the manufacturing and testing of drugs
were essential qualifications for appointment. Research
experience in a research and development laboratory was a
desirable qualification which may have entitled such a person to
a preference only. The latter experience could not be equated
with and considered to be at par with the essential eligibility to
be considered for appointment. The High Court erred in
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misreading the advertisement to redefine the desirable
qualification as an essential qualification by itself.
4. Learned counsel for the respondents submitted that they
were Post Graduates (M. Pharma) having more than three years
experience in research and development coupled with testing of
drugs in a laboratory. They were also eligible to be considered
for appointment and were called for selection after scrutiny of
their documents by a Committee constituted for the purpose
and which recommended them as eligible for consideration.
Once they were consciously permitted to participate in the
selection process, they could not be declared ineligible for
consideration. Reliance was placed on the definition of
manufacturing process in Section 3(f) of the Drugs and
Cosmetics Act, 1961 (hereinafter called “the Act”). No other
grounds were urged by the parties.
5. The Maharashtra Administrative Tribunal (hereinafter
referred to as “the Tribunal”) in O.A. No.820 of 2013 held that
experience of manufacturing or testing in a research and
development laboratory could not be termed as experience for
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the purposes of the present recruitment. The said experience
only entitled the candidate for a preference subject to
possessing the basic eligibility and requisite experience in the
manufacture and testing of drugs.
6. Reversing the conclusion of the Tribunal, the High Court
in W.P. No.6637 of 2014 and analogous cases held that to deny
opportunity to a candidate possessing research experience in
synthesis and testing of drugs in a laboratory on the ground
that such research experience cannot be linked with
manufacturing, would be a perverse interpretation. A candidate
having research experience in synthesis and testing of drugs in
a laboratory needed to be preferred and could not be denied
opportunity by misreading the eligibility conditions. Research
work carried out in well reputed laboratories is for the purposes
of manufacturing drugs. This order was followed by the High
Court in W.P. No. 7960 of 2016 instituted before the High Court
directly.
7. We have considered the respective submissions. It is
considered prudent to first set out Section 3(f) of the Act and the
extract of the advertisements.
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“3(f) “manufacture” in relation to any drugs (or
cosmetic) includes any process or part of a
process for making, altering, ornamenting,
finishing, packing, labelling, breaking up or
otherwise treating or adopting any drug or
cosmetic with a view to its sale or distribution but
does not include the compounding or dispensing
of any drug or the packing of any drop or cosmetic
in the ordinary course of retail business and to
manufacture shall be construed accordingly.”
8. The qualifications in the advertisement dated 04.01.2012
for Assistant Commissioner (Drugs) reads as follows:
“(b) Possess qualification and experience
prescribed for as under:
(i) Degree in Pharmacy or Pharmaceutical
Chemistry or in medicine with
specialization in Clinical Pharmacology
or Microbiology from a University
established in India by law, and
(ii) Experience gained after acquiring
qualification in the manufacture or
testing of drugs or enforcement of the
provisions of the Act for a minimum
period of five years.”
9. The advertisement for Drug Inspectors, reads as follows:
“Clause 4.5 Degree in Pharmacy or
Pharmaceutical Chemistry or in medicine
with specialization in clinical Pharmacology
or Microbiology from a University
established in India by law; and
– Practical experience gained
Clause 4.6
after acquiring qualification [above in
clause (i) in the manufacture or testing of
drugs or enforcement of the provisions of
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the Act for a period of not less than three
years;
Clause 4.7 – Preference may be given to
candidates having a post graduate degree in
a subject mentioned in clause 4.5 or
research experience in the synthesis and
testing of drugs.”
10. The essential qualifications for appointment to a post are
for the employer to decide. The employer may prescribe
additional or desirable qualifications, including any grant of
preference. It is the employer who is best suited to decide the
requirements a candidate must possess according to the needs
of the employer and the nature of work. The court cannot lay
down the conditions of eligibility, much less can it delve into the
issue with regard to desirable qualifications being at par with
the essential eligibility by an interpretive rewriting of the
advertisement. Questions of equivalence will also fall outside
the domain of judicial review. If the language of the
advertisement and the rules are clear, the Court cannot sit in
judgment over the same. If there is an ambiguity in the
advertisement or it is contrary to any rules or law the matter
has to go back to the appointing authority after appropriate
orders, to proceed in accordance with law. In no case can the
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Court, in the garb of judicial review, sit in the chair of the
appointing authority to decide what is best for the employer and
interpret the conditions of the advertisement contrary to the
plain language of the same.
11. The fact that an expert committee may have been
constituted and which examined the documents before calling
the candidates for interview cannot operate as an estoppel
against the clear terms of the advertisement to render an
ineligible candidate eligible for appointment.
12. The plain reading of the advertisement provides that a
degree in Pharmacy or Pharmaceutical Chemistry or in medicine
with specialization in Clinical Pharmacology or Microbiology
from a University coupled with the requisite years of experience
thereafter in manufacturing or testing of drugs were essential
qualifications. Preference could be given to those possessing
the additional desirable qualification of research experience in
the synthesis and testing of drugs in a research laboratory.
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13. Manufacture has been defined as a process for making,
altering, ornamenting, finishing, packing, labelling, breaking up
or otherwise treating or adopting any drug or cosmetic with a
view to its sale or distribution. Therefore, the experience of
testing has to be correlated to the manufacturing process which
naturally will be entirely different from the testing carried out in
the research and development laboratory before the product is
released for manufacture and sale in the market. To say that
experience in testing of drugs in a research and development
laboratory would be at par with the testing done at the time of
manufacture before sale cannot be countenanced and has to be
rejected.
14. The preference clause in Clause 4.7 only means that if a
candidate with the required degree qualification and practical
experience in the manufacturing and testing of drugs for
stipulated period of years has an additional desirable attribute
of a research experience in a research laboratory, other things
being equal, preference could be given to such a candidate.
The term “preference” mentioned in the advertisement cannot
be interpreted to mean that merely because a candidate may
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have had the requisite experience of testing in a research and
development laboratory he/she possessed the essential
eligibility and had a preferential right to be considered for
appointment.
15. The view taken by the Tribunal finds approval in
Secretary (Health), Department of Health & F.W. and
Another vs. Dr. Anita Puri and Others , 1996 (6) SCC 282,
observing as follows:
“7. Admittedly, in the advertisement which was
published calling for applications from the
candidates for the posts of Dental Officer it was
clearly stipulated that the minimum qualification
for the post is B.D.S. It was also stipulated that
preference should be given for higher dental
qualification. There is also no dispute that M.D.S.
is a higher qualification than the minimum
qualification required for the post and
Respondent 1 was having that degree. The
question then arises is whether a person holding
a M.D.S. qualification is entitled to be selected
and appointed as of right by virtue of the
aforesaid advertisement conferring preference for
higher qualification? The answer to the aforesaid
question must be in the negative. When an
advertisement stipulates a particular qualification
as the minimum qualification for the post and
further stipulates that preference should be given
for higher qualification, the only meaning it
conveys is that some additional weightage has to
be given to the higher qualified candidates. But
by no stretch of imagination it can be construed
to mean that a higher qualified person
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automatically is entitled to be selected and
appointed……. In this view of the matter, the
High Court in our considered opinion was wholly
in error in holding that a M.D.S. qualified person
like Respondent 1 was entitled to be selected and
appointed when the Government indicated in the
advertisement that higher qualification person
would get some preference. The said conclusion of
the High Court, therefore, is wholly unsustainable
and must be reversed.”
16. We are therefore unable to uphold the interpretation of the
terms of the advertisement as made by the High Court both with
regard to the posts of Assistant Commissioner (Drugs) and Drug
Inspectors. The impugned orders of the High Court dated
04.05.2017 and 17.07.2017 are set aside. The appeals are
allowed. There shall be no order as to costs.
.……………………….J.
(Arun Mishra)
………………………..J.
(Navin Sinha)
New Delhi,
May 03, 2019.
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