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PETITIONER: DR. M.C. BINDAL

       Vs.

RESPONDENT: R . C . SINGH & ORS .

DATE OF JUDGMENT19/09/1988

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SEN, A.P. (J)

CITATION:  1989 AIR  134            1988 SCR  Supl. (3)  36  1989 SCC  (1) 136        JT 1988 (4)     6  1988 SCALE  (2)1542

ACT:     Constitution  of India 1950: Article 320-Public  Service Commission-Duty of-Recommend only candidates fulfilling  all requisite  qualifications-On enquiry candidate not found  to have relevant and required experience-Commission-Right to  - Withdrawal    of    candidature    and    cancellation    of recommendation.

HEADNOTE:     The U.P. Public Service Commission made an advertisement in various newspapers inviting applications for the post  of Food & Drug Controller, U.P. The requisite qualification for the said post were specified in the advertisement as: (l)  a degree     from     any     recognised     University     in Medicine/Science/Pharmaceutical    Chemistry,    and     (2) experience  of  five  years  in  Drug  Standardization   and problems  relating  to  control of Drug  standards  or  Drug manufacture or Drug testing in a renowned institution.     Pursuant to the said advertisement Dr. M.C. Bindal,  Dr. S.K.  Majumdar, the appellants in the two appeals  C.A.  No. 379/84  and C.A. No. 3926/84 respectively, and  Ram  Chander Singh. the respondent in the first appeal along with  others filed  applications. The Commission after holding  interview recommended  the  appointment of (a) in the  main  list-R.C. Singh   and  (b)  in  the  reserved  list-Dr.  M.C.   Bindal (Provisional) and made it clear that the word  ‘Provisional’ denoted that the recommendation was subject to the candidate meeting  the  necessary  qualification--experience  of  five years.     The State of Uttar Pradesh intimated the Commission that the candidature of R.C. Singh did not appear to be  suitable in  view of the vigilance enquiry against him, and that  Dr. Bindal  had the requisite experience of five years.  In  its reply the Commission intimated that the right to appoint  or not to appoint a candidate vested with the State of U.P. and it  was  for  the  State  Government  to  take  a   decision accordingly. On receipt of this letter, the State Government appointed Dr. M.C. Bindal as Food & Drug Controller.     Two writ petitions were filed in the High Court, one by                                                     PG NO 36                                                     PG NO 37

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R.C.  Singh  and another by S.K.  Majumdar  challenging  the appointment of Dr. M.C. Bindal on the ground that he had not the  requisite  experience.  The  High  Court  by  a  common judgment  allowed in part the writ petitions, and held  that though  Dr. Bindal is not per se unsuitable or  disqualified for  the  post, his appointment was to be  treated  as  only provisional  and subject to the final decision of the  State Government.     Dr.  Bindal appealed to this Court. In the meantime  the Service  Commission directed one of its officers  to  verify whether Dr. Bindal fulfilled the qualifications relating  to practical  experience of 5 years in Drug Standardization  or Drug testing in a renowned institution. The Deputy Secretary after  enquiry  sent  a  report that  the  total  period  of experience  of Dr. Bindal on the date of submission  of  his application was only 3 years 4 months and 9 days whereas the essential  qualification required was experience  should  be for  5 years. The Commission thereafter took  the  decision: ’that  the Commission withdraws and cancels the  provisional recommendation  and the candidature because Dr.  Bindal  did not possess the requisite qualification’s.     In the appeal and the writ petition it was contended  on behalf  of Dr. Bindal that the Service Commission was  wrong and patently in error in withdrawing the candidature of  the appellant and in cancelling its recommendation.     Allowing  C.A. No. 3926 of l986 filed by  Dr.  Majumdar, and  dismissing C.A. No. 3797 of l984, W.P. No. 756 of  19X6 filed  by Dr. Bindal and C.A. No. 3798 of l984 filed by  the State of l .P., the Court,     HELD:  1.  A  candidate in order to  be  considered  for appointment  for  the  post must have  to  comply  with  the requisite    qualification,    namely    the     educational qualification  as  well  as  experience.  If  any  of  these essential  qualifications  is  lacking  then  the  candidate cannot claim to be appointed in the said Post. [42E]     2.  Under Article 320(3)(a) and (b), it is the  duty  of the Public Service Commission to consider and to get  itself satisfied  as to which of the candidates has  fulfilled  the requisite  qualifications  specified in  the  advertisement. [42G]     3.  The  Commission  in the instant case  has  duly  got verified  the  certificates of Dr. Bindal in regard  to  his experience  of  five  years  in drug  testing  by  a  Deputy Secretary  of  the  Commission, and  after  considering  his report  as well as the certificates came to  the  conclusion that    the   appellant   though    fulfilled    educational                                                     PG NO 38 qualification,  lacked in the requisite experience  of  five years in drug testing. The Commission therefore, revised its earlier  decision  and  also  cancelled  the  recommendation earlier  given in favour of the appellant. The  decision  of the Public Service Commission, cannot be faulted. [42H; 43A- B]     4.  It  is the constitutional requirement  envisaged  in Article  320  that the Commission will have to  perform  the duty  of  recommending  the  candidate  fulfilling  all  the requisite qualifications for the post to the Government  for being  considered  for appointment to  the  post  concerned. [143B-C]

JUDGMENT:      CIVIL  APPELLATE ORIGINAL JURISDICTION:  Civil  Appeal Nos. 3797-3798 of 84 and 3926 of 1986.

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   From  the  Judgment  and Order dated  2.12.1983  of  the Allahabad High Court in Writ Petition Nos. 2451 and 2155  of 1983.     Anil  Dev  Singh,  G.L.Sanghi,  M.K.  Ramamurthi,   Mrs. S.Dikshit, S.K. Mehta, M.K. Dua, Aman Vachhar and S.C. Birla for the Appellants/Petitioners.     S.N. Kacker and R. B. Mehrotra for the Respondents.     The Judgment of the Court was delivered by     RAY, J. We allowed the Civil Appeal No. 3926 of 1986 and dismissed  Civil Appeal No. 3797 of 1984 and  writ  petition No.3796  of 1986 filed by Dr. M.C. Bindal and  Civil  Appeal No. 3798 of 1984 filed by the State of Uttar Pradesh by  our order dated December 19, 1986 and we indicated therein  that the  reasons  for the above order would be given  later  on. Accordingly,   we   are   giving   the   reasoned   judgment hereinbelow.     The U.P. Public Service Commission made an advertisement in  various  newspapers  on  September  13,  1981   inviting applications  for the post of Food & Drug  Controller,  U.P. The  qualifications  for  this  post  stated  in  the   said advertisement are set out hereunder:    "Necessary   qualifications:     (1) A degree from any recognised University in Medicine Science/Pharmaceutical Chemistry.                                                     PG NO 39     (2)  Experience of 5 years in Drug  Standardization  and problems  relating to controlling of Drug standards or  drug manufacturing or drug testing in a renowned institution.     Pursuant to the said advertisement Dr. M.C. Bindal, I)r. S.K.  Majumdar,  Shri  Ram Chander Singh  and  others  filed applications.  The  appellant  Dr.  Bindal  stated  in   his application  that he has seven years’ experience as per  the advertisement.  He also stated that he had three and a  half years’  specific experience i.e. experience in the field  of drug   testing  and  four  years  other  experience   namely experience   in  the  field  of  teaching  Pharma   analysis including  testing of transfusion fluids in  the  hospitals, pharmacy  manufacturing  units  attached  to  LLRM   Medical College,  Meerut. It has also been stated that in  the  four years  of  teaching experience in addition to  his  teaching responsibility  he also conducted the laboratories in  which drug  testing was carried out. Of the applicants,  Dr.  S.K. Majumdar was not called for interview.     The   U.P.  Public  Service  Commission  after   holding interview  of  the  candidates  recommended  the   following candidates  for  appointment  to the post  of  Food  &  Drug Controller, U.P.:     (a)  In  the main list ... Shri R.C. Singh  (b)  In  the Reserve List ... Dr. M.C. Bindal (Prov.)     The Commission also recommended for relaxation of age of Shri R.C. Singh. The Commission also made it clear that "the word  ’Provisional’ denoted that the recommendation was  sub ject to the petitioner meeting the necessary  qualification- experience  of 5 years-for the appointment to the office  of the Drug Controller."     On  December  5,  l982,  the  State  of  Uttar   Pradesh intimated the Commission that the candidate Shri R.C.  Singh did not appear to be suitable in view of the fact that there had  been  a  vigilance enquiry against  him.  It  was  also pointed out in the said letter that the appointment of  Shri R.C. Singh as Food & Drug Controller would not be in  public interest. The State further pointed out that Dr. Bindal  had the  requisite  experience  of  5  years  and  he  had  al60 excellent academic and other qualifications.     In  reply  to  the said letter sent  by  the  Secretary,

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Medical and Health, U.P. Government. the U.P. Public Service Commission  by its letter dated February 23, 1983  intimated to  the  State of U.P. that the right to appoint or  not  to                                                     PG NO 40 appoint a candidate vested with the State of U.P. and it was for the State Government to take a decision accordingly.  On eceipt  on  this letter the State Government  appointed  Dr. M.C.  Bindal as Food & Drug Controller, U.P. by  its  letter dated April 6. 1983.     Thereafter  two  writ petitions were filed in  the  High Court  at Allahabad, Lucknow Bench; one by Shri  R.C.  Singh and another by Dr. S.K. Majumdar challenging the appointment of  Dr.  M.C.  Bindal  on the ground that  he  had  not  the requisite experience as required for the said post of Food & Drug Controller, U.P. These writ petitions are writ petition No.  2451 of 1983 and writ petition No. 2155  of  1983.These were  heard  together and were allowed in part by  a  common judgment on December 22, 1983. The relevant portions of  the findings are set out herein:    "To  sum up: ( I) The order appointing Dr. Bindal to  the post finally was premature (2) Before final decisions  taken in  the matter, the State Government has to take a  decision on:  (a)  whether  to  allow or reject  Shri  R.C.  Singh  s representation against the censure entry based on  vigilance report and then to consider the question of his  suitability for appointment. (b) Whether to relax the age limit for Shri R.C.  Singh (c) If Shri R.C. Singh was not to be  considered suitable,  then to consider in consultation with the  Public Service Commission the question whether Dr. Bindal fulfilled the requisite qualification relating to practical experience in  accordance  with law (d) If Dr. Bindal is found  not  to fulfil  the  qualification,  then to  consider  whether  the qualification  relating  to practical experience has  to  be modified or not (e) As Dr. Bindal is not perse unsuitable or disqualified for the post, he will continue to hold the post provisionally  till a decision is taken as above. The  final decision  should  however  be taken at an  early  date,  say within a period of three months from today.     Accordingly, the petitioners succeed in part. The matter will  have to be considered afresh by the State   Government in  some respects as set out above in consultation with  the Commission.  Dr.  Bindal’s appointment cannot,  however,  be held  to  be illegal because it is not in violation  of  any statutory provision. Indeed, ii an I.A.S. Officer could hold the  post for such a long time, Dr. Bindal  being  certainly better qualified can also hold the post.                                                     PG NO 41     However,  his  appointment  shall  be  treated  as  only provisional and will be subject to the final decision of the State Government as indicated herein above.     The writ petitions are, accordingly, allowed in part  to the extent indicated above. No order is made as to costs."     Aggrieved by the said judgment Dr. Bindal who was one of the  respondents in the said writ petitions filed a  special leave  petition  being SLP (C) No. 10330 of 1984  which  was numbered as Civil Appeal NO. 3797 of 1984 after the grant of special leave. The State of Uttar Pradesh also filed SLP (C) NO.9084/84  and  this  was numbered  subsequently  as  Civil Appeal  NO.3798  of 1984 after grant of special  leave.  The U.P.  Public Service Commission however, in the meantime  on March  15,  1984 directed one of its  officers  i.e.  Deputy Secretary  to  verify  whether  Dr.  Bindal  fulfilled   the qualifications  relating  to practical experience  in  drugs standardization  or drug manufacturing or drug testing in  a renowned  institution.  The Deputy Secretary  after  enquiry

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sent a report to the U.P. Public Service Commission  stating that  the  total period of experience of Dr. Bindal  on  the date  of  submission of his application was only 3  years  4 months  and  9  days  whereas  the  essential  qualification required  was  experience  should be for 5  years  from  any repute  concern. The U.P. Public Service Commission  took  a decision  on  April  17,  1984  to  the  effect  "that   the Commission    withdraws   and   cancels   the    provisional recommendation and the candidature because Shri Bindal  does not  possess the requisite qualifications" and the same  was sent to the Government on April 23, 1984. Dr. Bindal moved a writ  petition being writ petition No. 756 of  1986  against this  impugned order made by the Public  Service  Commission withdrawing the candidature of Dr. Bindal and cancelling its recommendation  of the petitioner for the post of  Food  and Drug Controller, U . P.     It  is necessary to mention in this connection  that  on September  21, 1984 this Court while granting special  leave made  an  order  of  stay of operation  of  the  High  Court judgment pending hearing of the appeal. But subsequently  on March  18,  1986  after hearing  the  learned  counsels  the interim  order of stay was recalled in consideration of  the fact  that  U.P.  Public  Service  Commission  had   already cancelled the candidature of the appellant and withdrawn the recommendation made in his favour for the reason inter  alia that  he  lacked in five years experience in  Drug  testing. This  Court also directed the State Government to appoint  a member  or one Indian Administrative Service to function  as the Food & Drug Controller, U.P.                                                     PG NO 42     It has been urged on behalf of the appellant, Dr. Bindal that   the  order  of  the  Public  Service  Commission   in cancelling the candidature of the appellant and  withdrawing the recommendation made in his favour is wholly illegal  and bad  in  as  much  as  the  Government  has  considered  the certificates  produced by the appellant and found  that  the appellant had the requisite experience of five years in Drug testing  and as such he was appointed by the  Government  as Food  and  Drug  Controller, U.P. The  U.P.  Public  Service Commission  was wrong and patently in error  in  withdrawing the  candidature  of  the appellant and  in  cancelling  its recommendation  without properly considering the opinion  of the  Government  to the effect that the  appellant  had  the requisite  experience of five years in drug testing. It  has been further contended in this connection that the Provision of  Article 320 of the Constitution of India  providing  for consultation  with  the Union Public Service  Commission  or providing  for  consultation with the State  Public  Service Commission  is not mandatory and as such the  recommendation of  the Commission was not binding on the State  Government. It   has  been  submitted that  the  recommendation  of  the Commission  is in the nature of advisory function and it  is for the State to take the ultimate decision. Some  decisions of this Court have been cited at the bar on this score.     In the instant case, the advertisement for the post  was made  at the instance of the U.P. Public Service  Commission and  the  requisite  qualification for  the  post  had  been specified  in the advertisement. It is therefore,  essential that  a candidate in order to be considered for  appointment for  the  said post must have to comply with  the  requisite qualification  namely the educational qualification as  well as the experience in drug testing etc. for a period of  five years.  If any of these essential qualifications is  lacking then the candidate cannot claim to be appointed in the  said post.  Undoubtedly, it is the Public Service Commission  who

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has to receive the applications of the candidates and has to scrutinise  them and then to decide which of the  applicants have  got the requisite qualifications and so be called  for interview. It is the duty of the Commission with the help of experts  in the particular subject to hold interview and  to find  out  and select the candidates  having  the  requisite qualifications  and experience fit to be recommended to  the Government  for appointment to the said post of Food &  Drug Controller.  Therefore, under Article 320(3)(a) and (b),  it is the duty of Public Service Commission to consider and  to get  itself  satisfied  as to which of  the  candidates  has fulfilled  the  requisite qualifications  specified  in  the advertisement.  The Commission in this particular  case  has duly  got  verified  the certificate of the  Dr.  Bindal  in regard to his experience of five years in drug testing by  a Deputy Secretary of the Commission and after considering his                                                     PG NO 43 report  as well as the certificates came to  the  conclusion that    the   appellant   though    fulfilled    educational qualifications,  lacked in the requisite experience of  five years  in drug testing. The Commission,  therefore,  revised its  earlier  decision and withdrew the candidature  of  the appellant  and  also cancelled  its  recommendation  earlier given  in  favour  of the appellant. This  decision  of  the Public Service Commission, in our considered opinion  cannot be  faulted. It is the constitutional requirement  envisaged in Article 320 that the Commission will have to perform  the duty  of  recommending  the  candidate  fulfilling  all  the requisite qualifications for the post to the Government  for being  considered for appointment to the post concerned.  It is,  of course, a well settled legal position that the  duty to  consult the Commission in the matter of  appointment  to civil posts by the Government is not mandatory but directory and  as  such  the absence of consultation  with  the  State Public  Service Commission does not render  any  appointment made by the Government in Civil posts invalid or illegal. It cannot also be contended that since the duty to consult  the Public   Service   Commission  in  the  matter   of   making appointments to Civil Services of the State is directory and not mandatory, the appointment of Dr. Bindal as Food &  Drug Controller,  U.P. by the Government of Uttar Pradesh  cannot be  questioned or interfered in by the Court in as  much  as the candidature of the appellant, Dr. Bindal for the post in question  has already been withdrawn by the  Public  Service Commission   and  as  such  the  question  of  validity   or invalidity  of the appointment of the appellant. Dr.  Bindal to  the said post is no longer open to be considered by  the Court.     In  such  circumstances  the only course  open  for  the Government   is   to   re-advertise  the   post.   If   such advertisement is made the appellant. Dr. Bindal will be free to apply for the same. It has been brought to our notice  by a  subsequent affidavit sworn by Dr. S.K. Majumdar that  the said  post  with  a  changed name  as  Drug  Controller  was advertised  and  Dr. Bindal’s name was recommended  for  the said  post  by the U.P. Public Service  Commission  and  the deponant  was not called for interview. We do not  think  it proper to take notice of the subsequent fact and we  refrain from  expressing any opinion in this respect. It is open  to the  parties  to take appropriate steps in  accordance  with law.     For  the reasons aforesaid the Civil Appeal No. 3926  of 1986  is  allowed and Civil Appeal No. 3797  of  1984.  Writ Petition No. 756 of 1986 filed by Dr. M.C. Bindal and  Civil Appeal No. 3798 of 1984 filed by the State of Uttar  Pradesh

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are dismissed with costs.