THE MAHARASHTRA PUBLIC SERVICE COMMISSION THROUGH ITS SECRETARY versus SANDEEP SHRIRAM WARADE AND OTHERS on 3 May 2019

1. Delay condoned. Leave granted.

2. The appellants are aggrieved by the orders of the High Courtholding that candidates possessing the requisite years of experience inresearch and development of drugs and testing of the same, are alsoGeligible to be considered for appointment to the post of AssistantCommissioner (Drugs) and Drug Inspectors under separateadvertisements dated 04.01.2012 and 31.03.2015.

3. Learned counsel for the appellants submitted that academicqualifications coupled with the requisite years of practical experience in H

the manufacturing and testing of drugs were essential qualifications forappointment. Research experience in a research and developmentlaboratory was a desirable qualification which may have entitled such aperson to a preference only. The latter experience could not be equatedwith and considered to be at par with the essential eligibility to beconsidered for appointment. The High Court erred in misreading theadvertisement to redefine the desirable qualification as an essentialqualification by itself.

4. Learned counsel for the respondents submitted that they werePost Graduates (M. Pharma) having more than three years experiencein research and development coupled with testing of drugs in a laboratory.They were also eligible to be considered for appointment and were calledfor selection after scrutiny of their documents by a Committee constitutedfor the purpose and which recommended them as eligible forconsideration. Once they were consciously permitted to participate inthe selection process, they could not be declared ineligible forconsideration. Reliance was placed on the definition of manufacturingprocess in Section 3(f) of the Drugs and Cosmetics Act, 1961 (hereinaftercalled “the Act”). No other grounds were urged by the parties.

5. The Maharashtra Administrative Tribunal (hereinafter referredto as “the Tribunal”) in O.A. No.820 of 2013 held that experience ofmanufacturing or testing in a research and development laboratory couldnot be termed as experience for the purposes of the present recruitment.The said experience only entitled the candidate for a preference subjectto possessing the basic eligibility and requisite experience in themanufacture and testing of drugs.

6. Reversing the conclusion of the Tribunal, the High Court inW.P. No.6637 of 2014 and analogous cases held that to deny opportunityto a candidate possessing research experience in synthesis and testingof drugs in a laboratory on the ground that such research experiencecannot be linked with manufacturing, would be a perverse interpretation.A candidate having research experience in synthesis and testing of drugsin a laboratory needed to be preferred and could not be denied opportunityby misreading the eligibility conditions. Research work carried out inwell reputed laboratories is for the purposes of manufacturing drugs.This order was followed by the High Court in W.P. No. 7960 of 2016instituted before the High Court directly.

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98SUPREME COURT REPORTS

A7. We have considered the respective submissions. It is consideredprudent to first set out Section 3(f) of the Act and the extract of theadvertisements.

“3(f) “manufacture” in relation to any drugs (or cosmetic) includesany process or part of a process for making, altering, ornamenting,Bfinishing, packing, labelling, breaking up or otherwise treating oradopting any drug or cosmetic with a view to its sale or distributionbut does not include the compounding or dispensing of any drugor the packing of any drop or cosmetic in the ordinary course ofretail business and to manufacture shall be construed accordingly.”

C8. The qualifications in the advertisement dated 04.01.2012 forAssistant Commissioner (Drugs) reads as follows:

“(b) Possess qualification and experience prescribed for as under: -

(i) Degree in Pharmacy or Pharmaceutical Chemistry or inmedicine with specialization in Clinical Pharmacology orDMicrobiology from a University established in India by law,and

(ii) Experience gained after acquiring qualification in themanufacture or testing of drugs or enforcement of theprovisions of the Act for a minimum period of five years.”

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9. The advertisement for Drug Inspectors, reads as follows: - “Clause 4.5 - Degree in Pharmacy or Pharmaceutical Chemistryor in medicine with specialization in clinical Pharmacology orMicrobiology from a University established in India by law; and FClause 4.6 – Practical experience gained after acquiringqualification [above in clause (i) in the manufacture or testing ofdrugs or enforcement of the provisions of the Act for a period ofnot less than three years; Clause 4.7 – Preference may be given to candidates having aGpost graduate degree in a subject mentioned in clause 4.5 orresearch experience in the synthesis and testing of drugs.”

10. The essential qualifications for appointment to a post are forthe employer to decide. The employer may prescribe additional ordesirable qualifications, including any grant of preference. It is the H

employer who is best suited to decide the requirements a candidate mustpossess according to the needs of the employer and the nature of work.The court cannot lay down the conditions of eligibility, much less can itdelve into the issue with regard to desirable qualifications being at parwith the essential eligibility by an interpretive re-writing of theadvertisement. Questions of equivalence will also fall outside the domainof judicial review. If the language of the advertisement and the rules areclear, the Court cannot sit in judgment over the same. If there is anambiguity in the advertisement or it is contrary to any rules or law thematter has to go back to the appointing authority after appropriate orders,to proceed in accordance with law. In no case can the Court, in the garbof judicial review, sit in the chair of the appointing authority to decidewhat is best for the employer and interpret the conditions of theadvertisement contrary to the plain language of the same.

11. The fact that an expert committee may have been constitutedand which examined the documents before calling the candidates forinterview cannot operate as an estoppel against the clear terms of theadvertisement to render an ineligible candidate eligible for appointment.

12. The plain reading of the advertisement provides that a degreein Pharmacy or Pharmaceutical Chemistry or in medicine withspecialization in Clinical Pharmacology or Microbiology from a Universitycoupled with the requisite years of experience thereafter inmanufacturing or testing of drugs were essential qualifications.Preference could be given to those possessing the additional desirablequalification of research experience in the synthesis and testing of drugsin a research laboratory.

13. Manufacture has been defined as a process for making,altering, ornamenting, finishing, packing, labelling, breaking up or otherwisetreating or adopting any drug or cosmetic with a view to its sale ordistribution. Therefore, the experience of testing has to be correlated tothe manufacturing process which naturally will be entirely different fromthe testing carried out in the research and development laboratory beforethe product is released for manufacture and sale in the market. To saythat experience in testing of drugs in a research and developmentlaboratory would be at par with the testing done at the time of manufacturebefore sale cannot be countenanced and has to be rejected.

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A14. The preference clause in Clause 4.7 only means that if acandidate with the required degree qualification and practical experiencein the manufacturing and testing of drugs for stipulated period of yearshas an additional desirable attribute of a research experience in aresearch laboratory, other things being equal, preference could be givento such a candidate. The term “preference” mentioned in theBadvertisement cannot be interpreted to mean that merely because acandidate may have had the requisite experience of testing in a researchand development laboratory he/she possessed the essential eligibility andhad a preferential right to be considered for appointment.

15. The view taken by the Tribunal finds approval in SecretaryC(Health), Department of Health & F.W. and Another vs. Dr. AnitaPuri and Others, 1996 (6) SCC 282, observing as follows:-

“7. Admittedly, in the advertisement which was published callingfor applications from the candidates for the posts of Dental Officerit was clearly stipulated that the minimum qualification for thepost is B.D.S. It was also stipulated that preference should begiven for higher dental qualification. There is also no dispute thatM.D.S. is a higher qualification than the minimum qualificationrequired 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 byvirtue of the aforesaid advertisement conferring preference forhigher qualification? The answer to the aforesaid question mustbe in the negative. When an advertisement stipulates a particularqualification as the minimum qualification for the post and furtherstipulates that preference should be given for higher qualification,the only meaning it conveys is that some additional weightage hasto be given to the higher qualified candidates. But by no stretch ofimagination it can be construed to mean that a higher qualifiedperson automatically is entitled to be selected and appointed…….In this view of the matter, the High Court in our considered opinionwas wholly in error in holding that a M.D.S. qualified person likeRespondent 1 was entitled to be selected and appointed when theGovernment indicated in the advertisement that higher qualificationperson would get some preference. The said conclusion of theHigh Court, therefore, is wholly unsustainable and must bereversed.”

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16. We are therefore unable to uphold the interpretation of theterms of the advertisement as made by the High Court both with regardto the posts of Assistant Commissioner (Drugs) and Drug Inspectors.The impugned orders of the High Court dated 04.05.2017 and 17.07.2017are set aside. The appeals are allowed. There shall be no order as tocosts.

Kalpana K. Tripathy

Appeals allowed.

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