JUDGMENT <NAME>, C.J.

1. <NAME> described, in the mortgage to which we shall next refer, as a Hindu inhabitant of Bombay, by indenture of mortgage of the 25th October 1871, made in the ordinary English form, in consideration of Rs. 15,000 duly advanced to him by <ORG>, an English Joint Stock Company, having its head office in London, and a branch office in Bombay, where the mortgage transaction was arranged, mortgaged (with the usual proviso for redemption) to that <ORG> in fee, certain lands in the villages of Girya and Bassein in the Taluka of Bas sein and Collectorate of Thana, and a bungalow and stable in the same village of Bassein, to secure that sum, which, by that indenture, he covenanted to repay to the <ORG> in three instalments, viz., Rs. 2,500 on the 25th October 1872, a further sum of Rs. 2,500 on the 25th October 1873, and the balance of Rs. 10,000 on the 25th October 1874, with interest on the sum advanced, or so much thereof as should from time to time remain due, at the rate of 10 per cent. per annum in equal quarterly payments, viz., on the 25th January, 25th April, 25th July, and 25th October in every year--the first payment to be made on the 25th January 1872; and that, if any quarterly payment of interest were in arrear for more than one calendar month after becoming due, he would pay compound interest on the amount of interest in arrear at the rate of 10 per cent. per annum. The mortgage further provided that, "in default of payment of the said instalments of Rs. 2,500 each within one calendar month from the times hereinbefore respectively appointed for the payment thereof, the said sum of Rs. 15,000, or the balance thereof then due, with interests thereon, shall immediately thereupon become payable to the said Land Mortgage <ORG> of India, Limited, their successors or assigns, and it is hereby provided and declared that it shall be lawful for the said Land Mortgage <ORG>, etc., at any time or times after the said principal sum of Rs. 15,000 shall become due and payable whether by lapse of time or under the provisions hereinbefore contained, without any further consent on the part of the said <NAME>, his heirs, executors, administrators, or assigns, to sell" the said mortgaged premises either by public auction or private contract, with power upon any such sale to make any stipulation as to title, or evidence, or commencement of title, or otherwise which the said Land Mortgage <ORG>, etc., shall deem proper, and also with power to buy in, or rescind, or vary, any contract for sale, and to resell without being responsible for any loss occasioned thereby, and for the purposes aforesaid, or any of them, to execute and do all such assurances and things as they shall think fit. Provided always, and it is hereby agreed that the said Land Mortgage <ORG>, etc., shall not execute the power of sale hereinbefore contained unless and until default shall have been made in payment, at the time hereinbefore appointed for payment thereof, of some principal money or interest; the payment whereof is intended to be hereby secured, and they shall have given a notice in writing to the said <NAME>, his heirs executors, administrators, or assigns, to pay of the moneys for the time being owing on the security of these presents, or left a notice in writing to that effect at or upon some part of the said premises, etc., and default shall have been made in payment of the whole or part of such moneys for one calendar month from the time of giving or leaving such notice, or unless and until the whole or some part of some quarterly payment of interest, which shall become due on the security of these presents, shall have become in arrear for one calendar month; and every such notice as aforesaid shall be sufficient, though not addressed to any person or persons by name or designation, and notwithstanding the person or any of the persons affected thereby, may be unborn unascertained, or under disability". Then followed the usual provisos exempting the purchaser at any such sale from inquiring whether any of the cases had happened justifying a sale or otherwise as to its propriety or regularity and leaving the mortgagor <NAME> to his remedy in damages only against the Land Mortgage <ORG> for any irregularity or impropriety in the sale, also exempting the purchaser from the necessity of seeing to the due application of the purchase money. It was further agreed that the <ORG> should, out of the proceeds of sale, in the first place, pay the expenses of the sale, in the next place, apply such proceeds in or towards satisfaction of the amount due to it upon the mortgage, and lastly pay the surplus (if any) to <NAME>, his heirs, executors, administrators and assigns. The mortgage also contained the usual clause of entry and covenant for further assurance, and was duly registered, the mortgagor, however, remaining in possession of the mortgaged premises, Mr. <NAME>, an Indo-Briton, being, as his tenant, in possession of the bungalow and stable.

2. <NAME> failed to pay the instalments of the principal and also the interest at the times stipulated. After due notice to him the mortgaged property was advertised by the <ORG> for sale about the middle of 1872; but at his request, and on making some payments on account, the sale was not then persisted in. His defaults in payment of interest and instalments subsequently continuing, notice was sent by the <ORG> to him by post on the 28th of October 1873 of their intention to sell the mortgaged premises if he did not pay the amount due upon the mortgage. He has denied receipt of that notice; but the evidence perfectly satisfies us, as it also did the Subordinate Judge, that the notice reached <NAME> in due course of post. We are satisfied also that he fully understood the nature of the provisions in the deed of mortgage, notwithstanding a faint effort made on his behalf to induce the Court below to believe the contrary. The sale took place on the 10th of December 1873 by public auction in Bombay, conducted by respectable auctioneers, Messrs. <ORG> The intended sale was for eight or ten days previously duly advertised in Bombay in three English newspapers and in three native newspapers, and handbills, announcing it, were sent to the site of the property and there distributed four days previously to the sale.

3. There were upwards of twenty bids for the mortgaged property, which was eventually knocked down to the present plaintiff (respondent) <NAME> for Rs. 16,500, which he paid to the <ORG>, and the property was conveyed to him by that Land Mortgage <ORG> by a regular conveyance in the English form, dated the 14th January 1874. In the Court below, the first defendant the mortgagor, alleged that the sale was at an undervalue, and that the property was really worth Rs. 80,000. This, however, he failed to establish, and the offer made in that Court by the purchaser <NAME>, to let the mortgagor have the property back again if he would repay to the purchaser the amount of his purchase money, Rs. 16,500, with interest at 9 per cent. per annum, was, as the Subordinate Judge observed, a clear proof that the purchaser had not made a very valuable bargain.

4. He brought the present suit in the same year to eject the mortgagor <NAME> from the lands, and to recover from him mesne profits, Rs. 584-9-4; and also to eject his tenant, Mr. <NAME>, from the bungalow and stable, and to recover from him as mesne profits, or rent, Rs. 366-10-8, pursuant to a notice which he had given to him some months previously that, if he did not give up possession of the last-mentioned premises, the purchaser would hold him responsible for rent at the rate therein specified.

5. The Subordinate Judge made a decree in favour of the plaintiff in the terms prayed by his plaint.

6. Several grounds of defence were put forward in <ORG>, some of which were repeated in the memorandum of appeal; but the only point which the learned pleader for the appellants, the Honourable Mr. <NAME>, insisted upon in this <ORG>, was that <ORG> had not power to sell the mortgaged property without the intervention of <ORG>. He relied upon a decision in 1847 of <ORG> for Bengal, <NAME> v. <NAME> (S.D.A. Rep. Cal., 1847, p. 354); (see also <NAME> on Mortgages, 5th Edition, p. 45), in which that <ORG> refused to recognize the validity of such a power as to lands in the Bengal mofussil. After making certain remarks upon what the <ORG> deemed to be the impolicy of upholding such a power, it, speaking of the Bengal regulations, said: "The regulations will be searched in vain for any express enactment prohibiting the sale of a mortgaged estate under a power of sale. But such a power is repugnant to the principles of the regulations enacted by <ORG> for regulating the transfer of immoveable property in satisfaction of debt in general, and in satisfaction of debts on mortgage in particular. The regulations do not sanction, in any case, the transfer of immoveable property in satisfaction of a debt, without the intervention of a public officer, except such transfer be by the direct and immediate act of the proprietor himself". The first observation to be made with regard to that case is that there are not in the Bombay regulations, as in those of Bengal, any provision regulating the foreclosure of mortgages. The next remark to be made is that Mr. Justice <NAME> in his book on Mortgages (pp. 46, 47), expresses strong doubts as to the supposed impolicy, if that be a legitimate argument, of sanctioning a power of sale; and, lastly, that it is mentioned in a recent case before <NAME> and <NAME>, <ORG>., in the High <ORG> of Calcutta (<NAME> v. <NAME>, 15 Beng. L.R., 28; see p. 31) that <NAME> v. <NAME> (S.D.A. Rep. Cal., 1847, p. 354) has been overruled by a subsequent decision of a Division Bench of the High <ORG>, <NAME> By sack v. <NAME> By sack (unreported), where the point as to the validity of a sale of lands in the Bengal mofussil under a power contained in a mortgage arose incidentally upon a question of costs. The validity of such a power was mooted in <NAME> v. <NAME> (15 Beng. L.R. 28), and <NAME>, J., said that, if called upon to determine it, he and <NAME>, <ORG>., would have felt considerable difficulty. They disposed of the case upon another ground, namely, that there had been no notice given to the purchaser under a power of sale in an English mortgage deed of 1862 of foreclosure proceedings by the holder of a deed of conditional sale of 1864, and held that a suit for possession by the widow of the latter was, therefore, unsustainable against the purchaser under the mortgage of 1862. Certain observations by Mr. Justice <NAME> in <NAME> v. <NAME> (8 Bom. H.C. Rep., 142; see p. 144, A.C.J.) on the Bengal Sadr Adalut decision, were also relied upon by Mr. <NAME>; but our brother <NAME> does not appear to have been informed that the Bengal Sadr, Divani Adalut decision had been overruled even in Bengal itself by a Division Bench of the High <ORG> at Calcutta. My brother <NAME> in <NAME> v. <NAME> (8 Bom. H.C. Rep., 142; seep. 149, A.C.J.) expressed his opinion to be in favour of the validity of a sale under a power contained in a mortgage of lands in the Bombay mofussil, there being nothing either in the spirit or the letter of the Bombay regulations to the contrary. And I may observe that there is not any inconsistency in maintaining the validity of a sale under such a power with the decision of our predecessors in this <ORG> in <NAME> v. <NAME> (1 Bom. H.C. Rep., 199) which has been followed by us. It is to the effect that a deed of mortgage, with a clause of conditional sale, shall be regarded as redeemable, although the time fixed, on which the mortgage was to become converted into a sale, has passed. In the latter case, if the clause of conditional sale be enforced, the property, howsoever it may exceed in value the amount of the advance on mortgage, becomes wholly vested in the mortgagee, which is unquestionably inequitable, whereas a mortgagee with a power of sale, not only cannot, either directly or through the medium of an agent or a trustee, himself become the purchaser under the power, <NAME> v. <NAME>, (1 <ORG>., 421) affirmed on appeal (4 Jur. N. 8., 155); nor can his agent, who has acted in surveying the property and receiving the interest, purchase even on his own account from the mortgagee under the power, <NAME> v. <NAME> (3 Jur., 19), In re Bloye's Trusts (1 M. and G., 488); but when the mortgagee, without the intervention of the <ORG>, sells under the power, after deducting the fair expenses of the sale and the amount due to himself on the mortgage, he must, as a trustee for the mortgagor, make over the surplus to him, if there be no assignee of the mortgagor or incumbrancer puisne to the selling mortgagee entitled to receive it or a portion of it. While a suit for redemption is pending against a mortgagee, he cannot sell under his power of sale, <NAME> v. <NAME> (16 <ORG>., 212), nor can he sell without notifying his intention to the mortgagor, <NAME> (6 <ORG>., 10).

7. In the present case <NAME>, the mortgagor, must have known perfectly well that, dealing as he was with an English Company, which had an established form for the deeds of mortgage required by it from persons borrowing money from it, he could not have obtained the loan which was made to him without giving such a power of sale as is contained in the mortgage of the 25th October 1871. In <NAME> v. <NAME> (l <ORG>., 79; see p. 101), which is not in other respects in point in this case, <NAME>, J., said: "The defendants have taken on land, in the mofussil, a mortgage in the English form: the inference, therefore, is strong that they intended to contract with reference to the English law, and to enforce their rights according to that law". Similar remarks have often been made in cases where the parties (not English) have thought proper to adopt the English form of contracting. That such was the intention of the parties, where the mortgagees are <ORG>, having their chief office in London, would seem to be a fortiori. We fully believe that to have been the understanding of the mortgagor <NAME> at the time of the execution of the mortgage. Sales, under such a power as we have here, have always, when not open to special objection, been upheld in the Island of Bombay; and unless we find the law to be otherwise in the Bombay mofussil, we see no sufficient reason for imposing upon parties contracting with respect to land situated there, a disability which does not exist in the Island. We are unable to find either enactment or decision which invalidates a sale under such a power in a mortgage affecting lands in the Bombay mofussil.

8. Under a power of sale, such as that in this case, neither the concurrence of the mortgagor nor of any person claiming under him, whose claim is puisne to that of the selling mortgagee, is necessary to the validity of the sale. <NAME>, Vendors and Purchasers, chap. X, section IV, pl. 57 (11th Ed.), p. 522, and the cases there referred to in notis, and <NAME> v. <NAME> (6 Ir. Eq. Rep. 513), affirmed on appeal (1 Jones and <NAME>, 666). The provision that any impropriety or irregularity in the sale shall be the subject of a suit for damages, and shall not affect the lands, when in the hands of a purchase under the power, is beneficial to the mortgagor as well as to the mortgagee in this that it tends to secure a better price at the sale.

9. The sale appears to have been fairly conducted, and with all due notice to the mortgagor, so that if he had been willing and able to redeem, he might have done so before the sale. And we see nothing in the conduct of <ORG> which amounted to a waiver of their right to sell.

10. The decree must be affirmed with costs.


PETITIONER: <NAME> Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT03/03/1987 BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DUTT, M.M. (J) CITATION: 1987 AIR 990 1987 SCR (2) 468 1987 SCC (2) 165 JT 1987 (1) 610 1987 SCALE (1)490 CITATOR INFO : RF 1987 SC1802 (1) F 1988 SC 952 (3,6) RF 1988 SC1737 (73) RF 1991 SC 363 (9) ACT: Constitution of India, 1950, Article 144-- Civil and judicial authorities to act in aid of <ORG>--Public Interest Litigation relating to drug policy filed in the interest of nation's health--Statutory bodies except State of Karnataka responding to <ORG> notice--Constitutional obligation stressed. Public Interest Litigation--Health Care for citizens--Whether <ORG> could interfere with the matter touching the policy of the <ORG> and the duty cast under Article 47 of the Constitution. HEADNOTE: The petitioner, an advocate by profession has moved <ORG> in public interest seeking directions banning import, manufacture, sale and distribution of such drugs which have been banned in Western countries or recommended to be banned by the Drugs Consultative Committee under the Drugs and Cosmetics Act , 1940. The petitioner has also sought directions, (i) for cancellation of licences autho- rising import, manufacture, sale and distribution of such drugs; (ii) for Constitution of a high powered <ORG> to go into the hazards suffered by people of the country on account of such drugs being in circulation and suggest remedial measures including award of compensation. Disposing of the petition, the <ORG>, HELD: 1. Statutory bodies when called upon by a <ORG>, in particular the apex <ORG> of the Country, are duty-bound to respond and join the proceedings before the <ORG>, as required by Article 144 of the Constitution. These bodies are not litigants and do not have the choice of keeping away from the <ORG> like private parties in ordinary litigations opting to go ex parte. The present matter is certainly one which is sufficiently important and the stake of the entire nation is high when the <ORG> suoe moro extended the oppor- tunity of being heard and invited the named statutory or other authorities to come forward and place their view points on relevant aspects, an attitude of callous indif- 469 ference cannot be appreciated. It is hoped that there would be no repetition of such a situation. [475G-H; 476A- <CITATION> ,  4 SCC 598, followed. 2. Having regard to the magnitude, complexity and tech- nical nature of the enquiry involved in the matter and keeping in view of the far reaching implications of the total ban of certain medicines for which the petitioner has prayed, it is clear that a judicial proceeding of the nature initiated is not an appropriate one for determination of such matters. [476H; 477A] 2.2 The issues raised in this petition are of vital importance as they relate to maintenance of approved stand- ards of drugs in general; the writ petition involves the claim for withdrawal of 7000 fixed dose combinations and withdrawal of licences of manufacturers engaged in manufac- ture of about 30 drugs which have been licensed by <ORG>; the issues that fall for consideration are not only relating to technical and specialised matters relating to therapeutic value, justification and harmful side effect of drugs but also involve examination of the ectness of action taken by the respondents 1 and 2 on the basis of advice; the matter also involves the interest of manufacturers and traders of drugs as also the interest of patients who require drugs for their treatment. The techni- cal aspects which arise for consideration in a matter of this type cannot be effectively handled by a <ORG>. Similar- ly the question of policy which is involved in the matter is also one for the Union <ORG>--keeping the best of interests of citizens in view to decide. No final say in regard to such aspects come under the purview of the <ORG>. [476D-F; 478F-G] 2.3 This branch namely, Health Care of citizens, is a problem with various facets. It involves and over-changing challenge. There appears to be, as it were, a constant competition between Nature (which can be said to be respon- sible for new ailments) on the side and human ingenuity engaged in research and finding out curative processes. This being the situation, the problem has an ever-shifting base. It is common place that what is considered to be the best medicine today for treatment of a particular disease becomes out of date and soon goes out of the market with the discov- ery or invention of new drugs. Again what is considered to be incurable at any given point of time becomes subjected to treatment and cure with new finds. There is yet another situation which must be taken note of as human knowledge expands and marches ahead. With the onward march of science and complexities of the living 470 process and hitherto unknown diseases are noticed. To meet new challenges, new drugs have to be found. In this field, therefore, change appears to be the rule. [478G-H; 479A-C] Therefore, such drugs as are found necessary should be manufactured in abundance and availability to satisfy every demand should be ensured. Undue competition in the matter of production of drugs by allowing too many substitutes should be reduced as it introduces unhealthy practice and ultimate- ly tends to affect quality. The State's obligation to en- force production of qualitative' drugs and elimination of the injuries ones from the market must take within its sweep an obligation to make useful drugs available at reasonable price so as to be within the common man's reach. That would involve regulating the price. It may be that there may be an improved quality of a particular medicine which on account of its cost of production will have to sell at a higher price but for every illness which can be cured by treatment, the patient must be in a position to get its medicine. This is an obligation under Article 47 of the Constitution. [479G-H; 480A- <CITATION> ,  3 SCC 161, referred to. JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition No. 3492 of 1983. Under Article 32 of the Constitution of India. Petitioner-in-person.

<NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> for the Respondents.

The Judgment of the Court was delivered by <NAME>, J. The petitioner, an advocate by profession is the General Secretary of <ORG>, Cochin. In his application as amended on 7th February, 1983, under Article 32 of the Costitution he has asked for directions, in public interest, banning im- port, manufacture, sale and distribution of such drugs which have been recommended for banning by <ORG> and has also asked for cancellation of all li- cences authorising import, manufacture, sale and distribu- tion in respect of such drugs. He has also asked for a direction to <ORG> to constitute a high-powered <ORG> to go into the hazards suffered by people of the country on account of such drugs being in circulation and suggest remedial meas- ures including award of compensation. He has further prayed that directions should be given for framing of strict regu- lations to ensure the quality and standard of approved drugs and to ensure weeding out of same, harmful as also injurious drugs from the market. The petitioner has alleged that the drug industry in India is dominated by multi-national Corpo- rations originally based in U.S.A.U.K., Federal Republic of Germany, Swedon, Japan, France and the like. According to the petitioner these Corporations have large resources and make huge profits. The control exercised by the <ORG> in this country on such Corporations is minimal and inade- quate. The disease-prone sub-continent of India has been used as pasture ground by these Corporations. <ORG>, appointed by <ORG> in its Report submitted in 1974, highlighted the havoc played by these Corporations in the Indian scene and pleaded for nationalis- ing the drug industry in the best interest of the Indian people. The recommendation has not been accepted by the <ORG>. According to the petitioner several drugs banned in the advanced west after appropriate analytical research are routed into India and on account on lack of control and sluggish enforcement of the law conveniently find their way into the market. What is poison to the human body in the west is equally poison to people in India but not knowing the repercussion thereof on the human system, such drugs freely circulate and are even prescribed for patients. <ORG> announced its drug policy in 1979 and set out a guideline covering the relevant aspects of the trade. According to the petitioner no attempt has been made to give effect to the policy and there has really been no enforcement. The objectives outlined therein have remained on paper. Though the policy indicated that <ORG> in- tended to develop indigenous drug technology so as to become self-sufficient, no effective steps have been taken in this direction. The poor illiterate people of India are often misled and misguided as they are not aware of the evil effects of certain drugs available in the market and often become a tool in the hands of quacks and inexperienced doctors. Often they fall a victim to publicity and not known how dangerous the result of taking the particular drug could be they take it. According to the petitioner, almost half of the drugs used in India are still being imported into the country, notwithstanding indigenous manufacture both by local as also the multi-national Corporations. The petition- er has contended that modern drugs reach only one-fifth of the Indian population. According to him, the drug industry is totally profit-oriented and no care or attention is bestowed upon good health of the citizens of India.

In 1980, <ORG> set up a subCom- mittee of experts for screening the formulations of drugs prevalent in the Indian market from the point of therapeutic rationale in order that irrational and harmful combinations of drugs could be banned. The said <ORG> of experts recommended banning of twenty fixed dose combinations of drugs. According to the petitioner, 400-500 drugs with different trade names belong to the group of these twenty fixed dose combinations. The sub-<ORG>'s report was duly approved by the <ORG> as also <ORG> in 1981. The Central Drugs Controller issued directions to the State authorities to strictly enforce the ban of drugs pertaining to these combinations. On account of slackness in the enforcement machinery these drugs are still prevalent in the market.

The Legislation in the field is the Drugs and Cosmetics Act , 1940 (hereinafter referred to as the Act). The act was amended in 1982 and the definition of 'drug' was amended and sections 10-A and 26-A were inserted into the Act conferring power on <ORG> to prohibit import of drugs and cosmetics in public interest as also to prohibit manu- facture, sale or distribution thereof. The amended Act came into force with effect from 1st February, 1983, but on account of proceedings taken in Court by manufacturers challenging the vires of Section 26-A of the Act and interim directions given by the Courts, the benefit of the new power conferred on <ORG> is not yet available. According to the petitioner, Article 21 of the Constitution guarantees fight to life and this Court has interpreted the guarantee to cover a life with normal amenities ensuring good living which include medical attention, life free from diseases and longavity upto normal expections. On account of both want of appropriate enforcement of the law as also strict measures necessary to eradicate the existing evils. the fundamental right to life is not available to the citi- zens of the country.

In his writ petition the petitioner originally impleaded the Union of India, the Central Drugs Controller as also the Drugs Controller of Kerala as Respondents 1, 2 and 3 respec- tively.

The Assistant Drugs Controller of India filed an affida- vit by way of joint return to the Rule Nisi on behalf of <ORG> and the <ORG> Drugs Controller. He pointed out that 19 categories of fixed dose combinations were recommended for withdrawal from the market and named them in Annexure-I to the counter affidavit. According to him, the provisions of the Act and the rules made thereunder confer sufficient legislative authority and power on the <ORG> Government as also the <ORG> Drugs Controller to effectively operate in the field. In paragraph 8 of the counter-affidavit it has been stated that the report of the sub-Committee was considered by <ORG> as also by <ORG> and the recommendations of the Board had been accepted by <ORG> in 1982. A circular letter was issued to all the State Drug Controllers on 22nd of April, 1982 asking them to ban manufacture and sale of the named categories of fixed dose combinations and the cut-off date being 30th September, 1982 for stopping for manufacture of these combinations and 3 1st March, 1983 for sale of these combinations was stipulated. On June 26, 1982, a further circular letter was issued by the <ORG> Drugs Controller to <ORG> in the matter of banning of Oestrogens and Progestins. That circu- lar letter has clearly indicated the cut-off dates for stopping the manufacture and sale of these-drugs as 31.12.1982 and 30.6. 1983 respectively.

These respondents have taken the further stand that reports regarding prevalence of standard drugs as stated in the Writ Petition have come to light as a result of action taken by <ORG>. As regards combinations of Oestrogens and Progestins, in February 1975 <ORG> informed all the member Gov- ernments about the action taken by <ORG> <ORG> for withdrawal from the market of a number of hormonal pregnancy testing preparations. On the basis of such information supplied by <ORG>, the Indian Drugs Controller held consultations with a number of gynaecologists within the country who opined that al- though in advanced countries hormonal preparations for pregnancy testing had been discontinued on account on better methods for detection of pregnancy being available, the prevailing situation in India did not require complete withdrawal from the market of the preparations and it recom- mended that a warning to the effect that there was possibil- ity of congental malformation in case the preparations were administered in the earlier stage of pregnancy should be indicated. Accordingly, a decision was taken that combina- tions of Oestrogens and Progestins may be continued for pregnancy test but a warning to the following effect was asked to be put on the package as also in any other promo- tional literature regarding the drugs:-

"Warning:- There is some evidence to show that hormonal preparations when used during preg- nancy may lead to foetal abnormalities and as such these should not be used during pregnancy or for pregnancy diagnosis."

The Director-General of <ORG> communicated the following recommendations:-

"Fixed dose combinations of oestrogens and progesterone may be totally banned in the country even for the treatment of secondary amenorrhoea as other, substitutes are avail-

able in the market for management of secondary amenorrhoea. ' ' On the basis of same <ORG> took a decision to ban fixed dose combinations of these medicines in the country and cut-off dates for manufacture and sale were fixed as 31st December 1982 and 30th of June 1983, respec- tively.

From time to time the Drugs Controller of India has been advising the State Drugs Controller for stopping of manufac- ture of combinations which have been found to be bad or injurious to health and instances thereof have been given in the counter affidavit. With the amendment of the Act in 1982, <ORG> has now been armed with power to prohibit, in public interest, the import, manufacture, sale and distribution of any drug or cosmetic which is likely to involve any risk to human beings or it would not have the theapeutic value claimed in respect of such prepa- ration. The counter affidavit points out that <ORG> Nicholas Laboratories of India Ltd. of Bombay and <ORG> <ORG>, respondent No. 9 before us filed writ petitions before <ORG> at Bombay and obtained interim orders of stay; similarly in <ORG> Organon (India) Ltd., respondent No. 8 before us moved <ORG> and obtained an interim order of stay in regard to their preparations. Challenge in these writ petitions is to the vires of Sec- tions 10-A and 26- A of the Act . The counter affidavit fur- ther points that some of the medicines which are alleged to have been banned in some developed countries are allowed to continue in the market of the other developed countries and there is no uniformity.

The second counter-affidavit of these respondents has been filed after the writ petition was amended. On this occasion, the Assistant <ORG>ler of India has stated that it is a fact that <ORG> recommended 116 drugs to be sufficient to treat more than 90 per cent of the diseases prevalent in the country. It was, however, found out that this position was not correct and many other drugs were required to meet the situation. It pointed out that though <ORG> identified 116 essential drugs, it did not recommend banning of the remaining. <ORG> in its report (serial No. 722 of 1985) has indicated that 285 basic drugs and 358 single ingredient formulations should be considered to be most important for the health and care of the human race. It is asserted that all these companies manufacture medicines within the frame- work of the list published by <ORG>. It is. pointed out that there are about 8000 small scale manufacturers and 214 big manufacturers in the organised sector for manufacture of medicines. When for some reason one particular brand of drug is not available in the market, a substitute thereof has got to be looked for. According to them, all appropriate steps have been taken by <ORG> and <ORG> and the petitioner is not entitled to any relief in this writ petition. The respondent No. 4 is <ORG> and respondent No. 5 is the organisation of pharmaceutical producers the remaining respondents are manufacturers of specified drug preparations. In their respective affidavits, respondents No. 4 and 5 have pleaded against maintainability of the writ petition. This court as early as 11.4.1983 directed issue of notice to <ORG>, <ORG> and <ORG>, the Indian medical Association and the <ORG> authorities of the States except that of Kerala as it was already made a respondent to the writ petition. Obviously such notice was given as in the opinion of the <ORG>, the matter was one of great importance and the <ORG> looked for participation of these authorities in the debate with a view to assisting the <ORG> in the disposal of the matter. We are surprised that the notice from the <ORG> has not evoked response excepting the State of Karnataka. (Statutory bodies when called upon by a <ORG>, in particular the apex <ORG> of the Country, are duty-bound to respond and join the proceedings before the <ORG>. as required by Article 144 of the constitution. These bodies are not litigants and do not have the choice of keeping away from the <ORG> like private parties in ordinary litigations opting to go ex-parte. The present matter is certainly one which is sufficiently important and the stake of the entire nation is high when the <ORG> suo moto extended the opportunity of being heard and invited the named statutory or other author- ities to come forward and place their view points on rele- vant aspects, an attitude of callous indifference cannot be appreciated. We hope and trust that there would be no repe- tition of such a situation.

It must be remembered that this is not a normal litiga- tion with adversaries pitted against one another. What this Court said in <CITATION> ,  4 SCC 598 has full application. There it said:-

"The lis before us is not of the ordinary type where there are two contending parties, a claim is raised by one and denied by the other, issues are struck, evidence is led and the findings follow ...... The writ petition is essentially in the nature of public inter- est litigation and the petitioner has attempt- ed to voice the grievances of the community."

The issues in this petition are of vital importance as they relate to maintenance of approved standards of drugs in general; the writ petition involves the claim for withdrawal of 7000 fixed dose combinations and withdrawal of licences of manufacturers engaged in manufacture of about 30 drugs which have been licensed by <ORG>; the issues that fall for consideration are not only relating to technical and specialised matters relating to therapeutic value, justification and harmful side effect of drugs but also involve examination of the ectness of action taken by the respondents 1 and 2 on the basis of advice; the matter also involves the interest of manufacturers and traders of drugs as also the interest of patients who require drugs for their treatment.

The respondent No. 5 has made references to the recom- mendations of <ORG> and the ultimate consideration of <ORG> to plead against the prayer of banning of preparations. As already. stated the remaining respondents are manufacturers of specific preparations and have supported in their respective counter-affidavits their claim that drugs manufactured or handled by them should not be banned.

Having regard to the magnitude, complexity and technical nature of the enquiry involved in the matter and keeping in view the far reaching implications of the total ban of certain medicines for which the petitioner has prayed, we must at the outset clearly indicate that a judicial proceeding of the nature initiated is not an appropriate one for determination of such matters. There is perhaps force in the contention of the petitioner that <ORG> too was not one which could be considered as an authoritative body competent to reach definite conclusions. No adverse opinion can, therefore, be framed against <ORG> for not acting upon its recommendations.

A healthy body is the very foundation for all human activities. That is why the adage "Sariramadyam Khaludharma Sadhanara". In a welfare State, therefore, it is the obliga- tion of the State to ensure the creation and the sustaining of conditions congenial to good health. This Court in Band- hua Mukti Morcha v. Union of India, [1984] 3 SCC 161 aptly observed:-

"It is the fundamental right of everyone in this country, assured under the interpretation given to Article 21 by this <ORG> in <NAME> case-- 1 SCC 608--to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of the workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just as humane condi- tions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity, and no State--neither <ORG>---has the right to take any action which will deprive a person of the enjoyment of these basic essentials".

While endorsing what has been said above, we would refer to Article 47 in Part IV of the Constitution. That Article provides:--

"The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohi-

bition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health."

This Article has laid stress on improvement of public health and prohibition of drugs injurious to health as one of the primary duties of the <ORG>. <CITATION> ,  1 SCC 246 this <ORG> has pointed out that, "the Fundamental Rights are intended to foster the ideal of a political democracy and to prevent the establishment of authoritarian rule but they are of no value unless they can be enforced by resort to courts. So they are made justifiable. However, it is also evident that notwithstanding their great importance, the Directive Principles cannot in the very nature of things be enforced in <ORG>, but it does not mean that Directive Principles are less important than Fundamental Rights or that they are not binding on the various organs of the <ORG>." In a series of pronouncements during the recent years this <ORG> has culled out from the provisions of Part IV of the Constitution these several obligations of the <ORG> and called upon it to effectuate them in order that the resultant pictured by the Constitution Fathers may become a reality. As pointed out by us, maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the communi- ty and on the betterment of these depends the building of the society of which the Constitution makers envisaged. Attending to public health, in our opinion, therefore, is of high priority--perhaps the one at the top.

None of the parties before us claimed, and perhaps tightly, that the prevailing state of affairs in this regard is a commendable one. The technical aspects which arise for consideration in a matter of this type cannot be affectively handled by a court. Similarly the question of policy which is involved in the matter is also one for <ORG>--keeping the best of interests of citizens in view to decide. No final say in regard to such aspects come under the purview of the court. Yet there are certain contentions raised by the petitioner which deserve serious consideration and we would now proceed to deal with them.

The branch with which we are now dealing, namely, health care of citizens, is a problem with various facets. It involves an everchanging challenge. There appears to be, as it were, a constant competition between Nature (which can be said to be responsible for new ailments) on one side and human ingenuity engaged in research and finding out curative processes. This being the situation, the problem has an ever-shifting base. It is common place that what is considered to be the best medicine today for treatment of a particular disease becomes out of date and soon goes out of the market with the discovery or invention of new drugs. Again what is considered to be incurable at any given point of time becomes subjected to treatment and cure with new finds. There is yet another situation which must be taken note of as human knowledge expands and marches ahead. With the onward march of science and complexities of the living process and hitherto unknown diseases are no- ticed. To meet new challenges, new drugs have to be found. In this field, therefore, change appears to be the rule. We have already taken note of the position that <ORG> was of the view that a fixed number of formulations were enough to meet the demand. From the coun- ter-affidavit of respondents 1 and 2, we have gathered that this conclusion of <ORG> was not accepted as on analysis it was not found to be a correct statement of the position. <ORG> in its report, on the basis of expert advice, is of the view that human ailments can be treated effectively with 285 basic drugs. We assume and it is not disputed that the expertise available to <ORG> was of a higher order and perhaps more accurate than what was at the disposal of <ORG>. While we are cognizant of the position that the problem is a shifting one and one cannot have a fixed process to deal with the situations that would arise from time to time, <ORG> on the basis of the expert advice can indeed adopt an approved national policy and prescribe an adequate number of formulations which would on the whole meet the requirement of the people at large. Obviously, instant attention has to be bestowed to keep abreast of the changing situations and make proper and timely amends. While laying the guidelines on this score, injurious drugs should be totally eliminated from the mar- ket. Great care in this regard has to be taken. Such drugs as are found necessary should be manufactured in abundance and availability to satisfy every demand should be ensured. Undue competition in the matter of production of drugs by allowing too many substitutes should be reduced as it introduces unhealthy practice and ultimately tends to affect quality. The State's obligation to enforce production of qualitative drugs and elimination of the injurious ones from the market must take within its sweep an obligation to make useful drugs available at reasonable price so as to be within the common man's reach. That would involve regulating the price. It may be that there may be an improved quality of a particular medicine which on account of its cost of produc- tion will have to sell at a higher price but for every illness which can be cured by treatment, the patient must be in a position to get its medicine. This, in our view, is an obligation which the <ORG> has already found in the relevant articles of Part IV of the Constitution.

The prescribed preparations must maintain their quality, and for ensuring it, strict regulations are necessary. Provision in statutes or rules or instructions issued by executive authorities do not meet the demands of today's situation. The process of regulation has to be strengthened. Law must be provided with sufficient biting teeth and there must be genuine apprehension in the mind of every person engaged in the trade that any infraction would be visited with exemplary punishment. In the prevailing situation in the country, unless the law is properly enforced, it would be difficult to regulate the quality of the drugs. Standar- disation of the preparations will also introduce a healthy atmosphere in the market. The practising doctor should be acquainted with the drug policy, availability of drugs and take care to prescribe available medicine to his patient. There must be due emphasis on indigenous production so that in due course, what the Government contemplated in 1979 in its then drug policy may be effectuated by India. We have made large strides in our advancement in the field of science as also manufacture of drugs since independence. Drugs prepared in India today have an international market in a limited way. There does not seem to be any lack of ability to manufacture drugs. We commend to Government, therefore, that the drug policy of the Government should emphasise upon a time-bound switch over to indigenous pro- duction.

Research in this field is of vital importance. Constant attention has to be devoted to get the best of results at the laboratories and put to use all useful findings. The traditional indigenous system of treatment in India had once upon a time made a lot of advancement. There is, therefore, sufficient scope for research on the basis of our own knowl- edge. Herbal preparations, as far as practicable, should be encouraged and appropriate laboratories should be set up, both in the public and the private sector to continue the system of research into every branch in this field relevant to gathering of knowledge and proper utilisation thereof in the field of treatment and manufacture of drugs. We reiter- ate that it is not for the <ORG> to lay down the drug policy of the <ORG>. We are aware of the fact that the <ORG> is concerned and anxious to improve the general condition and is willing to exercise adequate control; <ORG> has in several legislations in recent years enhanced the penalities with a view to ensure elimination of injurious drugs and maintenance of the quality and standard of drug prepara- tions. There is, however, no scope for complacency in this field and constant and regular attention has to be bestowed in order that the flow into the market may be only of ac- ceptable drugs.

Every indigenous drug manufacturer must have an obliga- tion by law to disclose the formula of preparation and other statutory information in the national language and at least one or two other languages, keeping in view the place of manufacture of the drug and the area of its circulation. Any statutory warning to be administered should also follow the same course. We would like to indicate that it is for the <ORG> on the basis of expert advice to decide whether use of poisonous medicine may not be reduced; after all administering the warning is not a sufficient excuse to circulate poison by way of medicine. We hope and trust that <ORG> would come forward with a declaration of its drug policy at a very early date.

It appears to us that there is an immediate need for a central enforcement machinery in the interest of community at large. We hope and expect that every State Government would cooperate with <ORG> in this regard and <ORG> would take a lead to establish such an authority which would have jurisdiction all over the country with a view to regulating manufacture and punishing defaults and lapses. Licencing of manufacture should also be centralised so that uniformity can be maintained. These are matters of common concern and we hope that <ORG>, without loss of time, would take care to evolve a system which would effectively operate. Leave is granted to <ORG> to apply to the <ORG>, if there be any difficulty experienced in implementation of such a scheme.

Section 5 of the Act authorises constitution of <ORG> as also a State Board for each State. The object of setting up of such Boards is to advise the respective Governments on technical matters arising out of the administration of the Act and to carry out such other functions as are assigned to the Boards by the Act. Sub-section (2) provides for the manning of <ORG>. We are of the view that adequate representa- tion should be, provided to consumers and at least two capable representatives from out of their category should be nominated by <ORG>. The manning of this Board should be such that in its functioning it would be in a position to effectively advise <ORG> on all technical matters. Section 7 provides for the setting up of <ORG> and its statutory purpose is to advise <ORG>, the State Governments and <ORG> on any matter tending to secure uniformity throughout India in the administration of the Act. We are of the view that on this Committee too there should be adequate representation on behalf of the consuming public. If necessary, prompt steps may be taken to bring about suitable amendments to authorise such representation both on <ORG> as also <ORG>.

<ORG> should set up regional Drug Laboratories in addition to <ORG> as pro- vided by section 6 of the Act to facilitate and promote research and coordinate activity in that regard. We have no doubt that the existing <ORG> is a useful body but <ORG> should consider whether it requires to be broad-based and confined with larger scope of operation or it is necessary to consti- tute another high powered authority, as prayed for by the petitioner so that such a vital matter like public health does not go without adequate attention.

Before we part with the case, we must point out that the amending provisions of 1982 which were brought into force in 1983 have remained mostly inoperative on account of orders of injunction granted by <ORG>. <ORG> may get impleaded in the pending proceedings before the different <ORG>s and request the said <ORG>s for expeditious disposal of the matters. At one point of time, we were thinking of making an order dissolving the interim directions but that would have necessitated impleading these parties in this case and hearing them. We have, therefore, thought it proper to suggest that <ORG> may get impleaded in the pending proceedings, if they are al- ready not parties and apply to the <ORG>s. We sincerely hope that when any such application is moved before the <ORG> where a dispute of this type is pending, the <ORG> would make every endeavour to expedite the disposal of the proceedings and have the same disposed of as early as possible and preferably within a period of two months from the date when it is approached so that the dispute may end. If there be any difficulty in giving effect to this part of the judgment, <ORG> has leave of this Court to make an appropriate application for directions.

The objection raised by the petitioner with reference to specific medicines has not been examined by us mainly for the reason that we have found this proceeding not an appro- priate one for such purpose. We, however, hope that <ORG> shall take into consideration the objec- tions raised by the petitioner and have the same referred to <ORG> or to such other body as it con- siders expedient for immediate examination and a decision in that regard shall be taken, not later than six months. The petitioner has indeed done a commendable job in bringing the matter before the Court. We appreciate his move and are inclined to think that he should be suitably compen- sated with a view to reimbursing him for the expenses. We direct <ORG> of <ORG> to deposit a sum of Rs.5000 (Rupees Five Thousand only) in this Court within two months hence which the petitioner will be at liberty to withdraw.

Petition disposed of.


CASE NO.: Appeal (civil) 337 of 2002 PETITIONER: <NAME> & <ORG>. RESPONDENT: <ORG> & <ORG>. DATE OF JUDGMENT: 22/11/2004 BENCH: <NAME> & <NAME> JUDGMENT:

J U D G M E N T W I T H CIVIL APPEAL NOS.334 & 335 OF 2002 S.B. SINHA, J :

These appeals arising out of a judgment and order dated 26.4.2000 passed in Writ Petition No.1188 of 1997 by <ORG> of Madhya Pradesh, Indore Bench, involving similar questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.

BACKGROUND FACTS :

The Appellant Nos.1 and 2 are Degree holders in Civil Engineering and Appellant Nos. 3 and 4 are Diploma holders in Civil Engineering. They having come to learn that certain vacancies exist in <ORG>, applied therefor although no advertisement in that behalf was issued. <ORG> appointed the Appellants and posted them to an overseas project known as '<ORG>' which was implemented through the agency of <ORG>' (hereinafter referred to as 'the ODA'), on daily wages @ Rs.63/- per day for the Degree holders and Rs.52.50 per day for the Diploma holders. On or about 17.3.1997, however, they began receiving a salary of Rs.1500/- per month. Allegedly, from their salary, provident fund was being deducted. They were also being granted the benefit of leave.

A dispute arose as to whether all the Appellants were employed for the purpose of the said project or the Appellants in Civil Appeal No.337 of 2002 were appointed in the year 1991 by the <ORG> for its own job. An industrial dispute was raised by the Appellants herein as their services were not being regularized by the Respondent. The said dispute was referred for adjudication of <ORG>, Indore, by the State of Madhya Pradesh on the following questions :

"(1) Whether non-regularisation of the Sub-Engineers (as per the listed enclosed) is valid and proper? If no, then to which relief they are entitled and what directions should be given to the employer?

(2) Whether it is valid and proper for not giving equal salary to these Sub Engineers like other Sub Engineers in accordance with the equal work? If no, then to which relief they are entitled and what directions should be given to the employer?"

PROCEEDINGS BEFORE THE TRIBUNAL :

The parties filed their respective pleadings before <ORG> and also adduced their respective evidences. <ORG> on the basis of the materials produced before it arrived at the following findings :

1. The Appellants were appointed by <ORG>.

2. All the employees have been working in the establishment of the Respondents for last 5-6 years.

3. Their work was satisfactory.

4. Work has been taken by the Respondent from all the Appellants except four.

5. Respondents had also mentioned in their claim that there was a proposal to hand over the colony of <ORG> to <ORG>.

6. The salary fixed by the Commissioner was earlier given to all Engineers and later on they were given the salary fixed by the Collector.

7. There is no difference in their work and the work of the employees of <ORG>.

Aggrieved by and dissatisfied with the said Award, <ORG> herein filed a writ petition before <ORG>, Indore Bench, which was marked as Writ Petition No.1188 of 1997. By reason of the impugned judgment dated 26.4.2000, the said writ petition was allowed.

HIGH COURT JUDGMENT :

<ORG> accepted the contention of the Respondent-Authority that the Appellants were not appointed against the sanctioned posts and their services were taken on account of the said ODA Project which was implemented through the agency of the Respondent-Authority. The ODA Project is said to have been completed and only the maintenance thereof was to be looked after by <ORG>. It was held that the services of the Appellants cannot be directed to be regularized in services. As regard the application of the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 (for short, 'the 1961 Act') and the Rules framed thereunder known as 'M.P. Industrial Employment (Standing Order) Rules, 1963 (for short, 'the 1963 Rules'), it was observed that although there was no specific pleadings raised in this behalf by the Respondents therein nor any question having been referred to <ORG> by the State Government touching the said issue, it committed an error in granting relief to them on the basis thereof on its own motion. Despite the same <ORG> went into the question of applicability of the said Act and held that the 1961 Act and the 1963 Rules had no application. Before <ORG> various documents were produced by the Appellants herein to show the nature of their employment, but the same had not been taken on records by <ORG>. As regard application of the doctrine of 'equal pay for equal work', it was held to be not applicable as the Appellants were not entitled to `absorption' or `classification' in terms of the 1961 Act and the 1963 Rules.

SUBMISSIONS :

Dr. <NAME>, learned Senior Counsel, appearing on behalf of the Appellants in Civil Appeal No.337 of 2002 and Mr. <NAME>, learned Senior Counsel, appearing on behalf of the Appellants in Civil Appeal No.335 of 2002, took us through materials on records and contended that the Appellants herein became `permanent employees' of the Respondents having regard to the provisions contained in Section 2 of the 1961 Act and Order 2(i) and 2(vi) of the Standard Standing Orders as set out in the Annexure appended to the 1963 Rules defining `permanent employees' and the `temporary employees'.

Placing reliance on several documents which have come into existence at a subsequent stage, Dr. <NAME> would contend that vacancies in fact had arisen after passing of the judgment of <ORG> and, thus the services of the Appellants should be regularized thereagainst. The vacancies, according to the learned counsel, need not be permanent ones . It was urged that the expression 'clear vacancies' has to be read in the context of period for which the concerned workman was required to work, namely, six months. The learned counsel would argue that the job was required to be performed for six months for which somebody else could have been appointed so as to attract the provisions of the 1961 Act and the 1963 Rules. Dr. <NAME> would furthermore contend that the findings of fact had been arrived at by <ORG> that the Appellants of Civil Appeal No.337 of 2002 were appointed by the <ORG> and not only their work was being taken in the <ORG> but also in other works, and, thus, mere posting of the Appellants to the said <ORG> would not disentitle them from the benefit of the said Act.

The learned counsel would urge that a seniority list was also drawn up and an employment code was assigned to each one of the Appellants from which fact the nature of their employment should be judged.

The learned counsel would submit that the sufficient materials were brought on records to show that vacancies were available and as the Appellants worked for a period of more than six months, they became permanent employees in terms of the Act. It was further contended that as the Respondents despite direction to produce documents including the offers for appointment did not produce the same, an adverse inference should have been drawn against them by <ORG>. As regard the claim of 'equal pay for equal work', the learned counsel would urge that <ORG> has failed to consider the same in its true perspective. Mr. <NAME>, learned Senior Counsel appearing on behalf of the Respondents, on the other hand, would contend that indisputably the Appellants were engaged by the Respondent-Authority but such appointments were made for the purpose of the Project financed by <ORG>. The learned counsel would submit that in fact no appointment letter was issued to the Appellants. Our attention was also drawn to the application dated 22.10.1991 filed by one O.P. <NAME> before the Chairman of <ORG> disclosing his educational qualifications and enclosing therewith the mark-sheets and degrees obtained by him in Civil Engineering and also <ORG> to show his date of birth whereupon the Chief Executive Officer on the body of the said application itself, made the following endorsement :

"He may be tried in daily wages and should be entrusted with the work of progress collection of ODA work put with (Illegible).

Sd/-

C.E.O.

The learned counsel would submit that in the aforementioned premise the question of regularization of the services of the Appellants does not arise. Drawing our attention also to the pleadings as also the reliefs claimed for by the Appellants before <ORG>, the learned counsel would contend that no contention was raised therein by the Appellants as regard their entitlement of permanency in terms of the provisions of the 1961 Act and the 1963 Rules. Furthermore, from the reliefs claimed, it would appear that the Appellants had, inter alia, prayed for continuance of their services by <ORG> which knocks off the very basis of their claim. It was urged that there does not exist any controversy that ODA was to continue before 30.6.1997 and as such the Appellants could not have been absorbed by the Respondent authority.

STATUTORY PROVISIONS :

Section 2(2) of the 1961 Act reads as follows :

"Nothing in this Act shall apply to the employees in an undertaking to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations or any other rules or regulations that may be notified in this behalf by <ORG> in the official <ORG> apply."

Clause 2 of the Standard Standing Order reads as under :

"2. Classification of employees.  Employees shall be classified as (i) permanent , (ii) permanent seasonal,(iii) Probationers, (iv) Badlies, (v) Apprentices, and (vi) temporary.

(i) A 'permanent' employee is one who has completed six months' satisfactory service in a clear vacancy in one or more posts whether as a probationer or otherwise, or a person whose name has been entered in the muster roll and who is given a ticket of permanent employee;

(vi) 'Temporary employee' means an employee who has been employed for work which is essentially of a temporary character, or who is temporarily employed as an additional employee in connection with the temporary increase in the work of a permanent nature; provided that in case such employee is required to work continuously for more than six months he shall be deemed to be a permanent employee, within the meaning of clause (i) above."

DETERMINATION :

<ORG> is a State within the meaning of Article 12 of the Constitution of India. It is, therefore, constitutionally obliged to strictly comply with the requirements of Articles 14 and 16 thereof before making any appointment. It is also not in dispute that <ORG> has been constituted under Madhya Pradesh Nagar Tatha Gram Nibesh Adhiniyam, 1973 (Adhiniyam); Section 47 whereof mandates that all appointments to the posts of officers and servants included in the State cadre mentioned in Section 76-B of the <ORG> must be made by the State Government and the appointments to the posts of officers and servants included in the local cadre in the said services by the concerned <ORG>. The proviso appended to Section 47 of the Adhiniyam further mandates that no post shall be created in any authority without the prior sanction of <ORG>. Section 76B provides for constitution of development authorities service.

It is also not in dispute that <ORG> in exercise of its rule making power conferred upon it under Section 85 of the Adhiniyam has made rules known as 'M.P. Development Authority Services (Officers and Servants) Recruitment Rules, 1987.

The posts of Sub Engineers in which the Appellants were appointed, it is nobody's case, were sanctioned ones. Concededly, <ORG> before making any appointment neither intimated <ORG> about the existing vacancies, if any, nor issued any advertisement in relation thereto. Indisputably, the conditions precedent for appointment of the officers and servants of the <ORG>, as contained in the Service Rules had not been complied with. The appointments of the Appellants were, therefore, void ab initio being opposed to public policy as also violative of Articles 14 and 16 of the Constitution of India.

The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularization of their services. The answer thereto must be rendered in negative. Regularisation cannot be claimed as a matter of right. An illegal appointment cannot be legalized by taking recourse to regularization. What can be regularized is an irregularity and not an illegality. The Constitutional Scheme which the country has adopted does not contemplate any backdoor appointment. A <ORG> before offering public service to a person must comply with the constitutional requirements of Articles 14 and 16 of the Constitution. All actions of the <ORG> must conform to the constitutional requirements. A daily wager in absence of a statutory provision in this behalf would not be entitled to regularization. [See <ORG> of U.P. & Others Vs. <NAME>, (1997) 4 SCC 88, <ORG>, Jabalpur, M.P. Vs. <NAME> and Others (1997) 5 SCC 86] <CITATION> [], a Division Bench of this Court observed :

"10. The process of regularization involves regular appointment which can be done only in accordance with the prescribed procedure. Having regard to the rules which have been made by the appellant-Corporation, regular appointment on the post of medical officer can only be made after the duly constituted <ORG> has found the person suitable for such appointment ."

<CITATION> 2004 (6) SC 110], a three-Judge Bench of this Court of which we were members upon taking into consideration a large number of decisions held :

"Although we do not intend to express any opinion as to whether the cooperative society is a "<ORG>" within the meaning of Article 12 of the Constitution of India but it is beyond any cavil of doubt that the writ petition will be maintainable when the action of the cooperative society is violative of mandatory statutory provisions. In this case except the <ORG> functions and supervision of the cooperative society, the <ORG> has no administrative control over its day to day affairs. The <ORG> has not created any post nor they could do so on their own. The <ORG> has not borne any part of the financial burden. It was, therefore, impermissible for the <ORG> to direct regularization of the services of the employees of the cooperative societies. Such an order cannot be upheld also on the ground that the employees allegedly served the cooperative societies for a long time.

Yet recently in <NAME> & Ors., etc. vs. state of Jammu & Kshmir & Ors. [JT 2004 (8) SC 531], a Division Bench of this Court opined :

"No person illegally appointed or appointed without following the procedure prescribed under the law, is entitled to claim that he should be continued in service. In this situation, we see no reason to interfere with the impugned order. The appointees have no right for regularization in the service because of the erroneous procedure adopted by the concerned authority in appointing such persons"

CASE LAW RELIED UPON BY THE APPELLANT :

In Dr. <NAME> and Others etc. vs. <ORG> [1987 (Supp.) SCC 497], this Court did not lay down any law. It was, in fact, held that as the Petitioners therein were not regularized in accordance with the prescribed rules and regulations for regular appointments, their services had to be terminated and as such there had been neither any arbitrary nor illegal action on the part of the respondents nor any violation of the Fundamental Rights guaranteed under Articles 14 and 16. However, having regard to the facts and circumstances of the said case, some directions were issued presumably in terms of Article 142 of the Constitution.

In <ORG> (supra) this <ORG> also distinguished the said decision.

In <NAME> and Another vs. <ORG> and Another [(1992) 4 SCC 112], again no law has been laid down. It appears that there existed a scheme for regularization and some directions were issued in terms thereof. The said decisions, thus, are of no assistance in this case.

APPLICATION OF THE ACT AND THE RULES :

The 1961 Act was enacted to provide for rules defining with sufficient precision in certain matters the conditions of employment of employees in undertakings in the State of Madhya Pradesh. By reason of the provisions of the said Act, application of Standard Standing Orders to undertakings has been provided in terms whereof the matters to be provided in the Standard Standing Orders have been specified. Under sub-section (1) of Section 6, <ORG> may, by notification, apply Standard Standing Orders to such class of undertakings and from such date as may be specified therein. Sub-section (2) of Section 6 reads as under :

"Where immediately before the commencement of this Act standing order are in force in respect of any undertaking, such standing orders shall, until standard standing orders are applied to such undertaking under sub-section (1) continue in force as if they were made under this Act."

No notification has been brought to our notice that the Standard Standing Orders had been made applicable to the Appellants. It is furthermore not in dispute that Adhiniyam came into force in 1973. The statute, rules and regulations formed by the <ORG> govern the terms and conditions of service of the employees of the Respondent. The terms of conditions of service contained in the 1973 Act and the 1987 Rules are not in derogation of the provisions contained in schedule appended to the 1961 Act.

The 1961 Act provides for classification of employees in five categories. The 1973 Act, as noticed hereinbefore, clearly mandates that all posts should be sanctioned by <ORG> and all appointments to the said cadre must be made by <ORG> alone. Even the appointments to the local cadre must be made by the <ORG>.The said provisions were not complied with. It is accepted that no appointment letter was issued in favour of the Appellants. Had the appointments of the Appellants been made in terms of the provisions of the Adhiniyam and Rules framed thereunder, the Respondent-<ORG> was statutorily enjoined to make an offer of appointment in writing which was to be accepted by the Appellants herein. Who made the appointments of the Appellants to the Project or other works carried on by the <ORG> is not known. Whether the person making an appointment had the requisite jurisdiction or not is also not clear. We have noticed hereinbefore that in the case of <NAME>, the CEO made an endorsement to the effect that he may be tried in daily wages and should be entrusted with the work of progress collection of ODA work. The said order is not an 'offer of appointment' by any sense of term.

It may be true that the Appellants had been later on put on a monthly salary but there is nothing on record to show as to how the same was done. They might have been subjected to the provisions of the employees provident fund and might have been granted the benefit of leave or given some employment code and their names might have found place in the seniority list amongst others, but thereby they cannot be said to have been given a permanent ticket. The so-called seniority list which is contained in Annexure P-27, whereupon strong reliance has been placed by Dr. <NAME> merely itself goes to show that it was prepared in respect of office muster employees. The said seniority list was not prepared in terms of the classification of employees within the meaning of the 1961 Act and the rules framed thereunder but was based on the date of joining probably for the purpose of maintenance of records. The 1973 Act or the rules framed thereunder do not provide for appointments on ad hoc basis or on daily wages. The 1961 Act itself shows that the employees are to be classified in six categories, namely, permanent, permanent seasonal, probationers, badlies, apprentices and temporary. The recruitments of the Appellants do not fall in any of the said categories. With a view to become eligible to be considered as a permanent employee or a temporary employee, one must be appointed in terms thereof. Permanent employee has been divided in two categories (i) who had been appointed against a clear vacancy in one or more posts as probationers and otherwise; and (ii) whose name had been registered at muster roll and who has been given a ticket of permanent employee. A 'ticket of permanent employee' was, thus, required to be issued in terms of Order 3 of the Standard Standing Orders. Grant of such ticket was imperative before permanency could be so claimed. The Appellants have not produced any such ticket.

It is not the case of the Appellants that they had been working as Technical Supervisors and Clerks in respect of which service book may be maintained instead of issuance of a ticket. It is also not the case of the Appellants that their names had appeared in the service book maintained for the said purpose.

The Standing Orders governing the terms and conditions of service must be read subject to the constitutional limitations wherever applicable. <ORG> being the suprema lax, shall prevail over all other statutes. The only provision as regard recruitment of the employees is contained in Order 4 which merely provides that the Manager shall within a period of six months, lay down the procedure for recruitment of employees and notify it on the notice board on which Standing Orders are exhibited and shall send copy thereof to the Labour Commissioner. The matter relating to recruitment is governed by the 1973 Act and the 1987 Rules. In absence of any specific directions contained in the schedule appended to the Standing Orders, the statute and the statutory rules applicable to the employees of the Respondent shall prevail.

<CITATION> [], a three-Judge Bench of this Court held that a regulation which is not inconsistent with the provisions of the 1961 Act and the Rules, can be issued by a statutory authority.

For the purpose of this matter, we would proceed on the basis that the 1961 Act is a special statute. vis-`-vis the 1973 Act and the rules framed thereunder. But in absence of any conflict in the provisions of the said Act, the conditions of service including those relating to recruitment as provided for in the 1973 Act and the 1987 Rules would apply. If by reason of the latter, the appointment is invalid, the same cannot be validated by taking recourse to regularization. For the purpose of regularization which would confer on the concerned employee a permanent status, there must exist a post. However, we may hasten to add that regularization itself does not imply permanency. We have used the term keeping in view the provisions of 1963 Rules.

We have noticed the provisions of the Act and the Rules. No case was made out by the Appellants herein in their statements of claim that they became permanent employees in terms thereof. There is also nothing on records to show that such a claim was put forward even in the demand raising the industrial dispute. Presumably, the Appellants were aware of the statutory limitations in this behalf. Furthermore, <ORG> having derived its jurisdiction from the reference made by the State Government, it was bound to act within the four-corners thereof. It could not enlarge the scope of the reference nor could deviate therefrom. A demand which was not raised at the time of raising the dispute could not have been gone into by <ORG> being not the subject-matter thereof.

The questions which have been raised before us by Dr. <NAME> had not been raised before <ORG>. <ORG> in absence of any pleadings or any proof as regard application of the 1961 Act and the 1963 Rules had proceeded on the basis that they would become permanent employees in terms of Order 2(ii) and 2(vi) of the Annexure appended thereto. The Appellants did not adduce any evidence as regard nature of their employment or the classification under which they were appointed. They have also not been able to show that they had been issued any permanent ticket. Dr. <NAME> is not correct in his submission that a separate ticket need not be issued and what was necessary was merely to show that the Appellants had been recognized by the <ORG> as its employees having been provided with employment code. We have seen that their names had been appearing in the muster rolls maintained by the Respondent. The Scheme of the employees provident fund or the leave rules would not alter the nature and character of their appointments. The nature of their employment continues save and except a case where a statute interdicts which in turn would be subject to the constitutional limitations. For the purpose of obtaining a permanent status, constitutional and statutory conditions precedent therefor must be fulfilled.

The submission of Mr. <NAME> to the effect that the principle of equity should be invoked in their case is stated to be rejected. Such a plea had expressly been rejected by this Court in A. Umarani (supra).

PROJECT WORK :

This case involves 31 employees. A distinction is sought to be made by Dr. <NAME> that out of them 27 had been appointed to a project and not in a project. The distinction although appears to be attractive at the first blush but does not stand a moment's scrutiny. As noticed hereinbefore, <ORG> observation remained unchallenged, that the project was to be financed by <ORG>. The project was indisputably to be executed by <ORG>; and for the implementation thereof, the appointments had to be made by it. If the Appellants were appointed for the purpose of the project, they would be deemed to have been appointed therefor and only because such appointments had been made by the Respondent would by itself not entitle them to claim permanency. The life of the project came to an end on 30.6.1997. The maintenance job upon completion thereof had been taken over by <ORG>. The Appellants were aware of the said fact and, thus, raised an alternative plea in their statements of claims. <ORG> could not have granted any relief to them as prayed for, as <ORG> is a separate juristic person having been created under a statute. Such a relief would have been beyond the scope and purport of the reference made to <ORG> by the State Government. Furthermore, the <ORG> was not a party and, thus, no employee could be thrust upon it without its consent.

In A Umarani (supra), this Court held that once the employees are employed for the purpose of the scheme, they do not acquire any vested right to continue after the project is over [See paras 41 and 43]. [See also <ORG> <ORG> Vs. <NAME> and Others, (2000) 10 SCC 179 and <ORG> and Another Vs. <NAME> and Others, (2003) 5 SCC 388] It is furthermore evident that the persons appointed as daily wagers held no posts. The appointments, thus, had been made for the purpose of the project which, as indicated hereinbefore, came to an end. The plea of Dr. <NAME> to the effect that the Appellants in Civil Appeal No. 337 of 2002 were asked to perform other duties also may not be of much significance having regard to our foregoing findings. However, it has been seen that even services of one of them had been requisitioned only for the project work. <ORG>, in our opinion, was right in arriving at the conclusion that the Appellants were not entitled to be regularized in service.

ADVERSE INFERENCE :

Some documents were said to have been called for from the Respondents which are said to have been not produced. One of such documents was offers of appointment. The witness examined on behalf of the Respondents, although at one stage stated that the appointment letters had been issued to them, upon going through the records brought with him, however, asserted that no such appointment letter was issued. Had the letters of appointment been issued, the Appellants themselves could have produced the same. They did not do so. It is accepted at the Bar, when the endorsement on the application filed by <NAME> was shown that the appointment letters were not issued. We do not know the relevance of other documents called for for determining the issue. If a document was called for in absence of any pleadings, the same was not relevant. In absence of any pleadings, the Appellants could not have called for any document to show that the provisions of the 1961 Act and 1963 Rules would apply. Before <ORG> as also before us, the Appellants have produced a large number of documents which were not filed before <ORG>. Such additional documents had been kept out of consideration by <ORG> as also by us. We have referred to the said fact only for the purpose of showing that it would not be correct to contend that the Appellants had no access to the said documents. An adverse inference need not necessarily be drawn only because it would be lawful to do so. <ORG> did not draw any adverse inference. Such a plea was not even raised before <ORG>.

Recently in <CITATION> etc. [2004 AIR SCW 5476], this Court observed :

""In such a factual background, in our opinion, <ORG> or <ORG> could not have drawn an adverse inference for the non-production of the Muster Rolls for the year 1990 to 1992 in the absence of specific pleading by the respondents-applicants that at least during that period they had worked for 240 days continuously in a given year. The application calling for the production of the documents was for the years 1987 to 1992. As stated above, between the period 1987 to 1990, as a matter of fact, till end of the year 1990 the respondents have not been able to establish the case of continuous work for 240 days. Considering these facts in our view drawing of an adverse inference for the non- production of the Muster Rolls for the years 1991-92, is wholly erroneous on the part of <ORG> and <ORG>. We cannot but bear in mind the fact that the initial burden of establishing the factum of their continuous work for 240 days in a year rests with the applicants-respondents.

The above burden having not been discharged and <ORG> having held so, in our opinion, <ORG> and <ORG> erred in basing an order of re-instatement solely on an adverse inference drawn erroneously. At this stage it may be useful to refer to a judgment of this Court in the case of <CITATION> 2004 (7) SC

248) wherein this Court disagreed with <ORG> view of drawing an adverse inference in regard to the non-production of certain relevant documents. This is what this Court had to say in that regard..

<ORG> even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld.

Presumption as to adverse inference for non-

production of evidence is always optional and one of the factors which is required to be taken into consideration in the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-

production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. In the instant case, <ORG> did not draw any adverse inference against the Appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the Respondent.""

In any event, in this case, we have proceeded on the basis that the assertions of the Appellants as regard nature of their employment, their continuance in the job for a long time are correct and as such the question as to whether any adverse inference should be drawn for alleged production of documents called for would take a back seat.

EQUAL PAY FOR EQUAL WORK :

The Appellants having been employed on daily wages did not hold any post. No post was sanctioned by <ORG>. They were not appointed in terms of the provisions of the statute. They were not, therefore, entitled to take the recourse of the doctrine of 'equal pay for equal work' as adumbrated in Articles 14 and 39(d) of the Constitution of India. The burden was on the Appellants to establish that they had a right to invoke the said doctrine in terms of Article 14 of the Constitution of India. For the purpose of invoking the said doctrine, the nature of the work and responsibility attached to the post are some of the factors which were bound to be taken into consideration. Furthermore, when their services had not been regularized and they had continued on a consolidated pay on ad hoc basis having not undergone the process of regular appointments, no direction to give regular pay scale could have been issued by <ORG>. [ <CITATION>  ]., <CITATION> [], it was held :

"A scale of pay is attached to a definite post and in case of a daily-wager, he hold no posts. The respondent workers cannot be held to hold any posts to claim even comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-`-vis an alleged discrimination. No material was placed before <ORG> as to the nature of the duties of either categories and it is not possible to hold that the principle of "equal pay for equal work" is an abstract one."

The said decision has been noticed in <NAME> (supfa) CONCLUSION For the reasons aforementioned, we do not find any merit in these appeals, which are dismissed accordingly. There shall, however, be no order as to costs.