Rajendra Prasad Mehta vs The State of Bihar and Another

B.P. Singh, J.—The Petitioner herein claims to be a public worker, and vitally interested in the maintenance of public health and supply of unadulterated food and drug in the State of Bihar. He is disturbed by the fact that rules and norms, which have been laid down for effective implementation of the policy to prevent supply of adulterated and substandard food and drug, not being followed by the State of Bihar, particularly on account of the fact that the work of analysing the food items and drugs sold in the State of Bihar to consumers is not done by persons duly qualified to do so and/or posts are lying vacant. In any event the indifference shown by the State authorities in making appointment to the posts when they fall vacant, and entrusting the same person with the responsibilities of several posts, results in ineffective administration of the policy. He has, therefore, prayed that Respondent No. 2, who is one such person holding several posts, even though not qualified to hold some of them, should be called upon by a writ of quo warranto to disclose the authority under which he holds so many posts, some of them being posts for which he does not possess the necessary qualification.

According to the writ Petitioner, Respondent No. 2 holds the following posts:

Public Analyst.

Joint Food Controller.

Deputy Director, Food.

Deputy Chemical Analyst.

Officer in charge of Food and Drug Laboratory, Agamkuan, Patna.

Discharging the duties of Senior Chemist in the Public Health Department of the Government of Bihar.

The case of the Petitioner is that Respondent No. 2 is holding all these posts and responsibilities simultaneously with the result that he is not in a position to render any service whatsoever in any of the capacities which he holds. The Petitioner states that Respondent No. 2 is a very resourceful person and manipulates things in such a manner that he has a stranglehold over the entire machinery in the State with regard to food and drug analysis.

It is the case of the Petitioner that one post of Medical Officer was surrendered with a view to create the post of Senior Chemist in the Department. The post of Senior Chemist was a promotional post for Assistant Chemical Analyst. An advertisement was issued for the appointment to the post of Senior Chemist in May, 1966, but surreptitiously an advertisement was issued in July, 1966 for the appointment of Senior Chemist on temporary basis. Even though Respondent No. 2 did not possess the requisite Post Graduate qualification in Food Analysis, he was selected for appointment to the post of Senior Chemist in temporary capacity. One Mr. Alam, who was at the relevant time holding the post of Assistant Chemical Analyst, should have been appointed as Senior Chemist, but his case was not considered. He resigned in protest. Thereafter Respondent No. 2 managed to get himself appointed as Deputy Chemical Analyst in the Food and Drug Laboratory, Agamkuan. This was done without following the procedure for appointment to a gazetted post. Thereafter, he was again appointed as Deputy Director, Food, again without following the legal procedure. In a like manner, he was also appointed as Joint Food Controller.

On 29th January, 1974, Respondent No. 2 was appointed Public Analyst u/s 8 of the Prevention of Food Adulteration Act along with one Dr. M.N. Saran. This was done despite the fact that there was only one post of Public Analyst and after retirement of the aforesaid Dr. Saran this post was continued to be held by Respondent No. 2.

On 12th February, 1988 Respondent No. 2 was appointed by promotion as Deputy Director of Food and Drug Analysis, and also held the post of Public Analyst. In this manner Respondent No. 2 has been holding the charge of several posts and runs the entire show in the Food and Drug Laboratory at Agamkuan. Persons who are qualified for being appointed against some of the posts held by him have been stagnating in lower posts, whereas Respondent No. 2 has been favoured with several appointments. It is, therefore, submitted that the Petitioner is an usurper of public post, and in law cannot hold several posts at one and same time. The State must take necessary steps to fill up the posts temporarily held by Respondent No. 2 in one or the other capacity.

Respondent No. 2 has filed a counter-affidavit controverting the allegations made in the writ petition. His case is that he was originally appointed as Senior Chemist in the year 1967, which is a Senior Class II gazetted post under the Health Department. This appointment was made on the basis of the recommendation of the Bihar Public Service Commission against Advertisement No. 117 of 1966. Respondent No. 2 has produced his letter of appointment as Annexure-A. He was confirmed in the said post with effect from 1.3.1969, and the notification confirming him has been produced as Annexure-B.

Respondent No. 2 further states that he was appointed as Public Analyst u/s 8 of the Prevention of Food Adulteration Act, 1954 with effect from 29.1.1974 in his capacity as Senior Chemist. In the year 1977 he was transferred to the post of Deputy Chemical Analyst since the posts of Senior Chemist and Deputy Chemical Analyst carried the same pay scale. Even while functioning as Deputy Chemical Analyst he was appointed as Public Analyst u/s 8 of the Prevention of Food Adulteration Act in his capacity as Deputy Chemical Analyst. The Petitioner was thereafter promoted to Class I pay scale with effect from 1.4.1981 by way of time bound promotion on the recommendation of the Bihar Public Service Commission. It is asserted that for some time he held the additional post of Chemical Analyst-cum-Public Analyst, but he is not holding that post any more. Thereafter on the recommendation of the Bihar Public Service Commission in the year 1988 he was promoted to the post of Deputy Director-cum-Public Analyst in Senior Class I pay scale. It is, however, admitted that he has been authorised to perform the duties of Joint Food Controller in addition to his own duties as a Deputy Director-cum-Public Analyst in his own pay scale. He claims that he is the only person in Bihar who holds the requisite qualification for the post of Joint Food Controller, and he is a considerably senior officer entitled to be considered for appointment against that post.

The Respondent No. 2 claims that he obtained a high second class in M.Sc. (Chemistry) from the Patna University. He also claims to have undergone training in technical subjects, and has acquired good experience to perform the duties pf the post to which he has been appointed. He has published scientific papers, which have been published in journals of repute. He, therefore, submits that the allegation made against him that he is holding several posts at the same time is not correct. He also submits that he is presently holding the post of Deputy Director-cum-Public Analyst, and has been authorised to perform the duties of Joint Food Controller in his own pay scale, in addition to his other responsibilities. This is a stop-gap arrangement since the post of Joint Food Controller is yet to be filled up in a regular way, and Respondent No. 2 being the senior most officer with requisite qualification has been authorised to perform the duties of that post till the post is filled up on regular basis. He also submits that his appointment to the posts held by him, whether by promotion or direct recruitment was done after following the normal procedure, and on the advice of the Bihar Public Service Commission wherever required. He cannot, therefore, be characterised as an usurper. He does not hold the post of Senior Chemist, which post he held initially till he was promoted to a higher post and, therefore, it is not correct to say that he is holding the post of Senior Chemist. The post of Public Analyst held by him is by reason of his being Deputy Director in the Health Department, Government of Bihar, The appointment u/s 8 of the Prevention of Food Adulteration Act is made having regard to the necessary qualification, and qualified officers of the Government are designated or appointed as Public Analyst. There is, therefore, no illegality/irregularity in the appointment of the Petitioner as Deputy Director-cum-Public Analyst. He further asserts that he is not in any manner concerned with the analysis of drugs, and it is the State Drug Controller, who is the concerned authority in regard to analysis of drugs. It is, therefore, submitted that though an impression has been sought to be created by the Petitioner that Respondent No. 2. is holding several posts at one and the same time, that is not correct. No doubt, the Petitioner started as a Senior Chemist, but after being granted due promotions from time to time he now holds the post of Deputy Director in the Department of Health, and haying regard to his qualifications he has been entrusted with the responsibilities and duties of the office of Public Analyst u/s 8 of the Prevention of Food Adulteration Act. He is no doubt discharging the duties of Joint Food Controller as a stop-gap arrangement till regular appointment is made to the said post.

In his rejoinder the Petitioner has, in fact, challenged the appointment of Respondent No. 2 as Senior Chemist, and has also questioned the time bound promotion granted to him. He has raised a further question as to why the post of Senior Chemist, which was at one time held by the Petitioner is not being filled up. It is not open to the Petitioner in this proceeding to question the appointment of Respondent No. 2 against the posts which he had held in the past on the ground that he did not possess the requisite qualification or that he was not suitable for appointment. From the counter-affidavit filed on behalf of Respondent No. 2, and also supported by the State, it is apparent that the statement of fact in the writ petition that he does not have the requisite post graduate qualification does not appear to be accurate, in any event, Respondent No. 2 was duly appointed and whenever necessary Bihar Public Service Commission was consulted. The Respondent No. 2 has produced his letter of appointment and, therefore, discharged the onus cast upon him. Respondent No. 2 has filed a reply to the rejoinder filed by the Petitioner to which the Petitioner has replied. It is not necessary to refer to these rejoinders, because they contain matters which are not relevant having regard to the scope of the instant writ petition.

In its counter-affidavit it has been stated by the State that Respondent No. 2 holds the substantive post of Deputy Director-cum-Public Analyst (Food), and has been authorised to perform the duties of Joint Food Controller on the basis of seniority, in addition to his own duties in his own pay scale till such post is filled up on regular basis. A copy of the notification to this effect has been annexed as Annexure-A to the counter-affidavit. The allegation that the Respondent No. 2 interferes with the work of Chemical Analyst is not true, because the work of Chemical Analyst has been entrusted to the Senior Chemist, who is not under Respondent No. 2. So far as the Assistant Chemical Analyst is concerned, that is a non-gazetted post under Respondent No. 2 and obviously, therefore, the incumbent of that post has to work under Respondent No. 2. The case of Respondent No. 2 with regard to his appointment against the post of Senior Chemist on the recommendation of Bihar Public Service Commission has been supported by the State. The State has also supported the case of Respondent No. 2 in regard to his appointment as Deputy Chemical Analyst-cum-Public Analyst, and thereafter his subsequent promotion as Deputy Director-cum-Public Analyst. It has also been reiterated that drug analysis is not within the charge of Respondent No. 2, and the Petitioner at the instance of interested parties appears to have made an incorrect statement.

In the supplementary affidavit filed on behalf of the Petitioner on 7.2.1994 it was stated that in several documents Respondent No. 2 was described as Deputy Director-cum-Public Analyst, Food and Drug Laboratory, Agamkuan, Patna, and at some places he was described as Public Analyst-cum-Chemical Analyst, Combined Food and Drug Laboratory. Respondent No. 2 has also been signing documents as officer in charge, Bihar State Drug Control Laboratory.

Respondent No. 2 has filed an affidavit on 25.8.1992 clarifying that he holds the substantive post of Deputy-Director-cum-Public Analyst with effect from 12.2.1988. In such capacity he has to supervise the work of other Analysts, and at times has to analyse the samples himself and send reports. In case of doubt food samples analysed by the Public Analyst in the district laboratories are sent to the Combined Food and Drug Laboratory, Agamkuan, Patna. The Deputy Director is, therefore, also appointed Public Analyst u/s 8 of the Prevention of Food Adulteration Act. The post has been redesignated as Deputy Director-cum-Public Analyst. The designated sanctioned posts are in the lower pay-scale of Rs. 2000/- to Rs. 3800/-. but the post of Deputy Director-cum-Public Analyst is in the pay scale of Rs. 3,000/-. to Rs. 4,500/- The posts, which were sanctioned previously are designated as Chemical Analyst, Deputy Chemical Analyst and Senior Chemist. Such officers were appointed as Public Analyst under the Prevention of Food Adulteration Act. Later on, new posts were created and designated as Public Analyst. There were 12 sanctioned posts of Public Analyst in the scale of Rs. 2000/- to Rs. 3800/-. Persons who hold the posts of Chemical Analyst and Deputy Chemical Analyst are also Public Analyst in view of the powers vested in them u/s 8 of the Prevention of Food Adulteration Act. Out of 12 posts of Public Analyst, 9 are lying vacant, and 8 posts were in the process of being advertised through the Bihar Public Service Commission. As regards the remaining vacant posts, the recommendation of the Bihar Public Service Commission has already been obtained. The post of Deputy Chemical Analyst has been lying vacant since long and the proposal for filling up the said post is under active consideration of the Government for which the recommendation of the Bihar Public Service Commission has already been obtained. Respondent No. 2 does not hold that post. There is no such post as officer in charge, Combined Food and Drug Laboratory. It is further stated that no post of Senior Chemist exists at present in the Combined Food and Drug Laboratory, Agamkuan, Patna. The post of Senior Chemist as well as other posts exist in the Principal Health Laboratory under the Director, Public Health Institute, Patna, though there is no sanctioned post of Officer in Charge in the Combined Food and Drug Laboratory, Agamkuan, Patna, the seniormost officer is loosely described as Officer in Charge. Food Laboratory and Drug Control Laboratory are two sections of the Combined Food and Drug Laboratory at Agamkuan, Patna.

I may observe that large number of affidavits have been filed by the Petitioner as well as Respondent No. 2 with the result the real issue involved in the writ petition has got blurred on account of so many other disputes raised by the Petitioner and replied to by Respondent No. 2. This writ petition is mainly concerned with two issues. Firstly, whether Respondent No. 2 is holding a large number of posts simultaneously without having the requisite, qualification for some of the posts held by him. Secondly, whether Respondent No. 2 has lawful authority to hold the post held by him.

So far as these two questions are concerned, having gone through the pleadings of the parties which is rather confusing, it is at least clear that the Petitioner (sic) presently holds the post of Deputy Director-cum-Public Analyst, Food. He has been duly appointed to the said post. He has produced necessary proof of his appointment duly in accordance with law. There is, therefore, no question of issuance of quo warranto against Respondent No. 2. It has also been clarified that though he had held lower posts in the past, he has been promoted from time to time and does not hold all the posts simultaneously. In the past he had held the posts of Senior Chemist and Deputy Analyst, but upon promotion as Deputy Director-cum-Public Analyst he does not hold those posts. Only for a short duration he had held the post of Chemical Analyst-cum-Public Analyst, but he does not hold that post any more. He is only additionally performing the duties of Joint Food Controller in his own pay scale pending regular appointment to that post.

However, having noticed the facts which have been brought on record, I consider it necessary to make some observations with regard to the continuance of vacancies for long in the Departments of the Government. Very often the same officer is burdened with the responsibilities of other posts till a person or persons are appointed to hold those posts. This practice is clearly contrary to public interest. Where posts have been sanctioned by the State Government it must be presumed that the State having considered the necessity of creating a post on whole time basis, created such a post. If the same person is required to hold additional charge of several posts, obviously he is not in a position to discharge effectively and efficiently the duties of any of the posts field by him. This obviously affects public interest, particularly in cases like the present one where technical qualification and skill are needed to perform the duties of the office. Any lapse on the part of the Department may adversely affect public health. It is, therefore, not desirable that in such institutions person should be asked to hold charge of any other post for a sufficiently long period. Administrative reasons and exigencies of the situation may at times compel the Government to make stop-gap arrangement, but such stop-gap arrangement should not be continued too long and should not become the rule. In the instant case for instance the Petitioner has been holding additional charge of the post of Joint Food Controller. It is not in dispute that the post of Joint Food Controller has not been filled up in regular manner. It may be, as contended by Respondent No. 2, that he is eligible and qualified for appointment to the post. If that is so, when regular appointment is made, he may also be considered for appointment, but that does not justify his continuance for such a long period as Joint Food Controller. The process of appointment does consume considerable time, but should be taken into account by the concerned authorities, who should initiate the process of appointment much earlier so that the appointment is made by the time the incumbent of the post retires. Similarly, a grievance has been made in the instant writ petition that since the year 1977 the post of Senior Chemist has been lying vacant. Respondent No. 2 has asserted that there is no such post under him, and that such post exists in a different organisation. If it is true that the post of Senior Chemist has been lying vacant since 1977, this is most unfortunate. Similarly, from the affidavit of Respondent No. 2 we find that as many as 9 posts of Public Analyst have been lying vacant, but it is also stated that steps have been taken for filling up those posts. The continuance of vacancies for long periods is somewhat paradoxical in a society where large number of educated persons with high qualification seek employment. It also disturbs the morale of the officers holding inferior posts, who cherish the hope of being promoted to higher posts in due course. Vacancies exist in higher posts, but are not filled, up and consequently they continue to stagnate in lower cadres. Apart from these consequences, public interest obviously suffers if a post remains vacant for long. Even if a person is put in additional charge of the post, public interest still suffers because a person. In charge of more than one post may not be able to discharge the duties either efficiently and effectively. The practice, therefore, of continuing vacancies for long periods and providing stop-gap arrangement by putting other officers in charge of such posts temporarily must be discontinued. If necessary, rules should be framed for regulating the exercise of such power by the State authorities. No officer should hold additional charge of any other post for a period exceeding three months. Similarly, no vacancy should be permitted to exist for more than a reasonable period, much depending on the nature of the post and the procedure for appointment.

In these circumstances, this writ petition is disposed of with a direction to the Respondent-State of Bihar to take immediate steps, if not already taken, for appointment to the post of Joint Food Controller. The appointment should be made within a period of four months from the date of receipt of a copy of this order by Respondent No. 1. Similarly, other posts, if lying vacant, such as posts of Public Analyst etc. should also be filled up within the same period. If the post of Joint Food Controller is not filled up within the period of four months from the date of receipt of a copy of this order by Respondent No. 1, Respondent No. 2 should be relieved of the additional charge of the office of Joint Food Controller. This is on the assumption that the post of Joint Food Controller has not been regularly filled up. Respondent No. 2 has produced evidence in support of his appointment as Deputy Director-cum-Public Analyst. I find that he lawfully holds that office having been duly appointed by the competent appointing authority. No question of issuance of quo warranto arises in this case.

This writ petition is disposed of with the above observations and directions.

N.K. Sinha, J.

I agree.