KRISHAN KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) Prayer in this application is for impleadment of applicant - Dr. Suresh Kumar son of Shri Dalip Singh as respondent No.9, being a selected candidate in pursuance to the advertisement which has been impugned in the writ petitions.

(2.) Learned counsel for the petitioners, who were led by Mr. Keshav Pratap Singh, Advocate, with reference to Sec. 103 of the Government of India Act, 1935 (hereinafter referred to as '1935 Act'), submits that the State Legislature has foregone its powers to amend or make rules, much less the service rules qua the post of Drug Inspector (In Haryana, named as 'Drugs Control Officer') governed under Chapter IV of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as '1940 Act'). He contends that once the resolution has been passed by the Provincial Legislature and the Central Legislature had proceeded to pass an Act, there would be no power left with the Provincial Legislature to amend or repeal the said legislation qua its own territory even if it falls within the Provincial Legislative List. His contention is that Sec. 103 of the 1935 Act is pari materia with Article 252 of the Constitution of India, where it has further been clarified under Article 252 (2). After coming into force the Constitution, the Acts which were in force on the said day, have been protected and saved by virtue of Article 372 of the Constitution of India. With the State Legislature ceasing to have any share/power in respect of the matter, which has been surrendered by way of a resolution, Parliament alone would be authorized and entitled to legislate with respect to it irrespective of the fact whether the said item falls in List II or III of Schedule VII of the Constitution. In support of this contention, he has placed reliance upon the judgments of the Hon'ble Supreme Court in M/s R.M.D.C. (Mysore) Private Ltd. Vs. State of Mysore AIR 1962 (SC) 594, Union of India Vs. Valluri Basavaiah Chouwdhary, (1979) 3 SCC 324 and Thumati Venkaiah etc. Vs. State of A.P. (1980) 4 SCC 295.

(3.) His further submission is that as per Sec. 33 of the 1940 Act, Central Government alone has been specifically empowered to make rules for the purpose of giving effect to the provisions of the Chapter in which the said Sec. exists i.e. Chapter IV. On this basis, he contends that no State Government has the power to make rules under the 1940 Act. Had there been such an intention, it would have been so provided for in the Act. This, he states, with reference to Sec. 3 (e) (ii) of 1940 Act, which defines an Inspector appointed by the Central Government or the State Government under Sec. 21. Sec. 21 of the 1940 Act empowers the Central and State Government to appoint, by notification in the Official Gazette, such persons as it thinks fit having the prescribed qualifications, to be Inspectors for such areas, as may be assigned to them by the Central Government or the State Government, as the case may be. Similar is the position with regard to the duties which may be performed by him to be assigned. He, thus, contends that the Rule making power having been restricted to the Central Government, the State is divested of its powers to frame Rules.