ADVERTISEMENT
Karnataka High Court
Sri.Nagendra D S vs The State Of Karnataka on 13 July, 2026
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 16.04.2026
Pronounced on : 13.07.2026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY, 2026
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No. 24000 OF 2023 (GM-RES)
C/W
WRIT PETITION No. 7473 OF 2025 (GM-RES),
WRIT PETITION No. 12522 OF 2025 (GM-RES)
IN WRIT PETITION No. 24000 OF 2023
BETWEEN:
1 . SRI RAMAPPA,
Digitally S/O SATYAPPA MADARKHANDI,
signed by AGED ABOUT 68 YEARS,
PADMAVATHI
BK KPSC REG. NO.4818,
R/O NO.87, 21ST MAIN,
Location:
High Court of PIPELINE ROAD, KURUBARAHALLI,
Karnataka BENGALURU 560 086.
2 . SRI Y VEERA NARAYANA GOWDA,
S/O V YELLEGOWDA,
AGED ABOUT 62 YEARS,
KPSC REG. NO.5444,
R/O NO.154, 9TH MAIN,
14TH CROSS, LAKKASANDRA EXTN.,
2
BENGALURU-560 030.
... PETITIONERS
(BY SRI JAYAKUMAR.S PATIL, SENIOR ADVOCATE A/W
SRI SATISH R GIRJI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REP. BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF HEALTH AND FAMILY
WELFARE, VIKASA SOUDHA,
BAGNALORE-560 001.
2. RETURNING OFFICER,
KARNATAKA STATE PHARMACY COUNCIL
ELECTION AND DEPUTY DIRECTOR(PROCUREMENT),
NATIONAL HEALTH MISSION,
1ST FLOOR, EAST WING,
NATIONAL HEALTH MISSION,
AROGYA SOUDHA, MAGADI ROAD,
BENGALURU 560 023.
3. THE REGISTRAR,
KARNATAKA STATE PHARMACY
COUNCIL, NO.541/E,
1ST MAIN ROAD, 1ST CROSS,
VIJAYANAGAR 2ND STAGE,
HAMPINAGAR, BENGALURU 560 104.
... RESPONDENTS
(BY SMT. NAVYA SHEKAR, AGA FOR R-1 & R-2;
SRI S.S. HAVERI, ADVOCATE FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO A) QUASH THE
PAPER PUBLICATION DATED 03/10/2023 VIDE ITS
NO.KARAAPHAPA/PACHU/01/2022-23 AS PER ANNEXURE-H AND
DIRECT THE R-2 TO PUBLISH A PROPER VOTER LIST AND
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CONDUCT THE ELECTION IN ACCORDANCE WITH LAW.
B) DIRECTING THE R-2 TO CONSIDER THE ANNEXURE-J AND K
DATED 13/10/2023 AND 10/10/2023 AND PASS AN APPROPRIATE
ORDER.
IN WRIT PETITION No. 7473 OF 2025
BETWEEN:
1. SRI NAGENDRA D S,
S/O LATE SUBBARAYA SETTY,
AGED ABOUT 68 YEARS,
R/AT NO 542, CHAITANYA,
1ST MAIN, 2ND BLOCK,
BEHIND R.V TEACHERS COLLEGE,
BASAVANAGUDI, BENGALURU 560 004.
2. SRI BHAGAVAN P S,
S/O LATE SRINIVASA IYENGAR P N,
AGED ABOUT 78 YEARS,
R/AT NO 175, GROUND FLOOR,
2ND CROSS, KGE LAYOUT,
RMV EXTENSION 2ND STAGE,
SANJAYANAGARA, BENGALURU 560 094.
... PETITIONERS
(BY SRI CHANDRASHEKAR P PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REP. BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF HEALTH AND FAMILY
WELFARE, VIKASA SOUDHA,
BANGALORE 560 001.
2. THE COMMISSIONER,
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FOOD PROTECTION AND
PHARMACY ADMNISTRATION,
PALACE ROAD, BENGALURU 560 001.
3. THE REGISTRAR,
KARNATAKA STATE PHARMACY
COUNCIL, NO.541/E, 1ST MAIN ROAD,
1ST CROSS, VIJAYANAGAR,
2ND STAGE, HAMPINAGAR,
BENGALURU 560 104
4. C. JAYARAMAIAH,
S/O LATE CHIKKAMUNIYAPPA,
AGED ABOUT 59 YEARS,
R/O NO.339, BAGALUR VILLAGE,
YELAHANKA ROAD, JALA HOBLI,
YELAHANKA TALUK,
BENGALURU URBAN DISTRICT,
PINCODE: 561 149
(AMENDED VIDE COURT ORDER
DATED 10-12-2025)
... RESPONDENTS
(BY SMT. NAVYA SHEKHAR, AGA FOR R-1 & R-2;
SRI S.S HAVERI, ADVOCATE FOR R-3;
SRI H.R SHOWRI, ADVOCATE FOR R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO (A) QUASH THE
PAPER PUBLICATION DATED 28.02.2025 VIDE NOTIFICATION NO.
FDA/56/YOJANE/2023-24, PUBLISHED ON 01.03.2025 IN VIJAYA
KARNATAKA, KANNADA DAILY NEWS PAPER (BENGALURU
EDITION) ISSUED BY THE R-2 PRODUCED AS ANNEXURE-A. (B)
ISSUE A WRIT IN THE NATURE OF MANDAMUS TO CONSIDER THE
PETITIONERS REPRESENTATION VIDE ANNEXURE-C DATED.
07.03.2025 AND PASS AN APPROPRIATE ORDER.
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IN WRIT PETITION No. 12522 OF 2025
BETWEEN:
1. SRI GANGADHAR V YAVAGAL,
S/O. VEERABHARAPPAYAVAGAL,
AGED ABOUT 80 YEARS,
R/AT NO.889, 18TH MAIN, 5TH BLOCK,
RAJAJINAGAR, BENGALURU-560 010.
2. SRI D.A. GUNDURAO,
S/O. AHOBALARAO,
AGED ABOUT 74 YEARS,
R/AT 22/7, MGK MURTHY ROAD,
CHAMARAJPETE, BENGALURU-560 018.
3. SRI Y. VEERANARAYANAGOWDA,
S/O. V. YALLEGOWDA,
AGED ABOUT 63 YEARS,
R/AT 154, 14TH CROSS,
LAKKASANDRA EXTENSION,
BENGALURU-560 030.
4. MRS. SALMA KHANUM,
W/O. MOHAMED SHAFEEULLA,
AGED ABOUT 62 YEARS,
R/AT NO. 125, 15TH CROSS,
PATELS INN CLUB R.T. NAGAR,
2ND BLOCK, BANGALORE-560 032
... PETITIONERS
(BY SRI CHANDRASHEKAR P PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REP. BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF HEALTH AND FAMILY
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WELFARE, VIKASA SOUDHA,
BANGALORE-560 001.
2. THE UNDER SECRETARY,
DEPARTMENT OF HEALTH AND FAMILY
WELFARE, VIKASA SOUDHA,
BANGALORE-560 001.
3. THE COMMISSIONER,
FOOD SAFETY AND DRUG ADMINISTRATION,
GOVERNMENT OF KARNATAKA,
PALACE ROAD, BENGALURU-560 001.
4. THE REGISTRAR,
KARNATAKA STATE PHARMACY
COUNCIL, NO.541/E, 1ST MAIN ROAD,
1ST CROSS, VIJAYANAGAR 2ND STAGE,
HAMPINAGAR, BENGALURU 560 104.
... RESPONDENTS
(BY SMT. NAVYA SHEKAR, AGA FOR R-1 TO R-3;
SRI S S HAVERI, ADVOCATE FOR R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO (A) QUASH THE
ORDER DATED 05.04.2025 IN NO. AKUKU 44 IMM 2025,
BENGALURU, PASSED BY THE R-2 VIDE ANNEXURE-A; (B)
ISSUE A WRIT IN THE NATURE OF MANDAMUS TO CONSIDER THE
PETITIONER'S REPRESENTATION DATED 11.04.2025 VIDE
ANNEXURE-B AND PASS AN APPROPRIATE ORDER.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 16.04.2026, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
Writ Petition No.24000 of 2023 is filed challenging the paper
publication issued for the conduct of elections to the Karnataka
State Pharmacy Council; Writ Petition No.7473 of 2025 is filed
seeking quashment of a paper publication issued for nomination of
members to the Karnataka State Pharmacy Council and
Writ Petition No.12522 of 2025 is preferred challenging the
appointment of an Administrator to the Karnataka State Pharmacy
Council. In the light of the issue revolving round the Karnataka
State Pharmacy Council and conduct of elections to it or otherwise,
these petitions are taken up together and considered by this
common order. The petitioners in all the Writ Petitions are members
of the Karnataka State Pharmacy Council.
2. Facts, in brief, germane are as follows: -
2.1. The Karnataka State Pharmacy Council (hereinafter
referred to as 'the Council' for short) is constituted. The Council is
regulated under the Pharmacy Act, 1948 (hereinafter referred to as
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'the Act' for short) and the Rules promulgated thereto under the
Karnataka State Pharmacy Council Rules, 1968 (hereinafter
referred to as 'the Rules' for short). On 08-05-2022, a press note
comes to be published stating that, pursuant to the Government
Notification dated 05-03-2022, the Returning Officer had been
appointed and that the elections to the Council are being
announced, asking pharmacists to register themselves as voters for
election to the Council. On 17-11-2022 the Returning Officer
communicates to the Registrar of the Council, requesting for the
details of the members registered with the Council. On 03-12-2022,
another letter is addressed to the Registrar of the Council by the
Returning Officer, requesting for details of all the life/permanent
members of the Council in order to invite objections prior to the
elections. On 21-04-2023, the Registrar, submits the list of
pharmacists registered with the Council to the Returning Officer and
informs her that the total number of registered pharmacists eligible
to vote as on 25-04-2023 were 43,434 in number. Subsequently,
the Returning Officer, published the list of eligible voters on 29-04-
2023, wherein the total number of eligible voters were 43,434 in
number.
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2.2. On 03-10-2023, an election notification comes to be
issued by the Returning Officer, under Section 19(a) of the Act,
notifying the elections and also revising the calendar of events
notified earlier. A paper publication is also issued notifying the
elections to the Council. A legal notice is then issued to the
Returning Officer on 10-10-2023, on the score that the notification
dated 03-10-2023 was issued in violation of the Act and the Rules.
Thereafter, another notification comes to be issued by the
Returning Officer on 12-10-2023, in terms of which, the total
number of eligible voters was increased to 48,974 voters. This list
also included those voters who registered between 01-04-2023 to
15-07-2023. A representation is submitted to the Returning Officer
calling in question the notification dated 03-10-2023 and also the
subsequent notification dated 13-10-2023 on the score that, it was
issued in violation of the Act and Rules as it failed to disclose the
total number of eligible voters and the categories for which they
could contest and that since the elections were to commence from
16-10-2023, the voters list issued three months prior i.e., the list
existing on 16-07-2023 should be the basis for the list of voters. A
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clarification is then issued by the Returning Officer that, the
nomination papers would be issued from 16-10-2023 to
31-10-2023. It is argued by the petitioners that, this notification
marks a departure from the calendar of events issued on
03-10-2023. Another representation is submitted on 21-10-2023,
requesting an updated list of voters since, as per notification dated
12-10-2023 additional voters were added to the list. This
representation also is not considered. It is then the litigation crops
up and Writ Petition No.24000 of 2023 comes to be filed before this
Court, challenging the notification dated 03-10-2023 and also
seeking for a direction to consider the representations dated
10-10-2023 and 13-10-2023. This Court on 30-10-2023 issued an
interim order, staying the aforesaid elections on the score that
there was violation of Section 40(3)(a) of the Act.
2.3 Later, the Commissioner, Department of Food and Drug
Administration (hereinafter referred to as 'the Commissioner' for
short), issues a notification on 21-02-2025 for the nomination of
members to the Council. The notification is published on the
website of the Council on 28-02-2025. The notification lists certain
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eligibility criteria for the applicants for nomination to the Council,
including that, applicants must possess a pharmacist license and
must have carried out business as pharmacists for a period of 15
years in the State of Karnataka to be eligible to apply. A paper
publication then comes to be issued publishing the said notification,
thereby inviting applications of eligible persons. Aggrieved by the
eligibility criteria in the notification, a representation is issued to the
Commissioner requesting him not to nominate any person and to
hold that, conditions 4 to 8 of the eligibility criteria are to be held as
not applicable, for the purpose of applying for nomination to the
Council. Non-consideration of this representation, leads to filing of
Writ Petition No.7473 of 2025 before this Court. On 18-03-2025,
this Court passed an interim order, staying the notification for
appointment of nominated members to the Council.
2.4. Thereafter, on 05-04-2025, an order is issued by the
Government of Karnataka appointing the Commissioner as the
Administrator of the Council, thereby dissolving the existing
governing body of the Council. The order comes to be issued on the
score that, several complaints came to be filed against the Council
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members alleging harassment in renewing registrations, illegal
investment of Council funds without permission, etc. The Council
members are also alleged to have not cooperated with the
Government for conducting elections to the Council in the previous
years. Further, it is stated that, the pharmacy inspectors were
appointed by the Council in violation of the government conditions
and reservation policies and that the Council members failed to
maintain updated copies of the Register of Pharmacists. The Drug
Controller is stated to have submitted a report after conducting an
investigation into the allegations. The report submitted showed
abuse of power by the members of the Council and serious
administrative irregularities. Aggrieved by the appointment of the
Administrator, a representation is submitted on 11-04-2025,
seeking for review of the order dated 05-04-2025. The
representation is not considered and Writ Petition No.12522 of 2025
is filed, seeking for quashing of the order appointing an
Administrator and for a direction to consider the representation
dated 11-04-2025. Thereafter, an interim order is passed by this
Court, linking Writ Petition Nos.24000 of 2023 and 7473 of 2023
with Writ Petition No.12522 of 2025 on the score that, the
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grievance of the petitioners in Writ Petition No.12522 of 2025 can
be addressed if the elections to the Council were held at the earliest
and any undertaking or direction would be ineffective if Writ Petition
Nos.24000 of 2023 and 7473 of 2023 are not considered.
Therefore, the matters, as observed hereinabove, are taken up and
heard together.
3. Heard Sri Jayakumar S.Patil, learned senior counsel
appearing for the petitioners in Writ Petition No.24000 of 2023; Sri
Chandrashekar P.Patil, learned counsel appearing for the petitioners
in Writ Petition Nos.7473 and 12522 of 2025, Smt. Navya Shekar,
learned Additional Government Advocate appearing for respondents
1 and 2 in Writ Petition Nos.24000 of 2023 and 7473 of 2025 and
respondents 1 to 3 in Writ Petition No.12522 of 2025; Sri S.S.
Haveri, learned counsel appearing for respondent No.3 in Writ
Petition Nos.24000 of 2023 and 7473 of 2025 and respondent No.4
in Writ Petition No.12522 of 2025 and Sri H.R.Showri, learned
counsel appearing for respondent No.4 in Writ Petition No.7473 of
2025.
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4. The learned senior counsel Sri Jayakumar S.Patil appearing
for the petitioners in Writ Petition No.24000 of 2023 would contend
that, the returning officer of the Council is wanting to hold elections
to the Council in violation of Rules 3 to 20 of the Rules and in
blatant violation of the principles of natural justice. In terms of Rule
3(2) of the Rules, elections cannot be conducted without a proper
voters list and the list comprised voters whose names appear with
the register of Pharmacists maintained by the Council as last
printed under Section 40 of the Act together with the list published
by the returning officer. There were several names of persons
registered subsequent to the finalization of the list. He would
submit that under Section 40(3)(a) of the Act, the list for the
election was required to be published three months before the
ordinary election to the Council was to be held. But, new members
were added to the list after publication of the calendar of events.
The returning officer of the Council failed to mention valid voters list
while issuing the calendar of events, instead the modified voters list
included new members. About 9071 members who did not renew
their membership for the years 2023-24 were added as voters in
violation of the Act and the Rules. Nominations of candidates were
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accepted without any due identification of their candidature by
printing their registration number only. Despite being notified about
the violation in the conduct of elections, the Council failed to clarify
the same. The elections were therefore, being conducted without a
proper voters list and identification of ineligible voters.
5. The learned counsel appearing for the petitioners in Writ
Petition Nos.7473 of 2025 would contend that the Commissioner,
issued a paper publication of eligible persons for nomination as
members to the Council without having any power to do so under
the Act or the Rules. The Commissioner is only an ex-officio
member in terms of Section 19(dd) and does not have the power of
filling up posts of nominated members under the Act. Further, the
eligibility criteria imposed by the Commissioner for nomination of
members to the Council is in violation of the provisions of Section
19(b) of the Act. Therefore, the notification or publication of eligible
voters list is contrary to law.
6. The learned counsel for the petitioners in Writ Petition
No.12522 of 2025 would submit that the membership of members
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to the Council would continue till the successor if duly nominated or
elected under the provisions of the Act. The only authority or power
for the respondent - state was only the appointment of the
commission of enquiry under Section 45 of the Act, under which an
Administrator cannot be appointed. The State Government only has
supervisory power over the Council and do not have absolute
control over the Council. The delay in conduct of elections was
solely due to the State Government and not the elected members of
the Council. The learned counsel would further submit that if the
issues arising in the companion petitions are decided, no additional
submissions need be made in the case at hand as the appointment
of the Administrator is a consequence of orders impugned in the
companion petitions.
7. Per contra, the learned learned Additional Government
Advocate representing the respondent Nos.1 and 2, in Writ Petition
No.24000 of 2023, would vehemently contend that last elections to
the Council took place 20 years ago on 19-04-2003. In terms of the
Act, the membership to the Council has to be renewed every year
but earlier people who became members in 1970's and 1980's were
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life time members. After 2003 when the last elected body came into
existence, all the members including the life members were asked
to renew their membership every year. The writ petition therefore,
must be viewed in that angle but there have been constant
attempts made over the years to stall elections on some ground or
the other. The Returning Officer in continuation of her duty to hold
elections had notified a voters list appropriately in terms of the Act
and the Rules. There was no warrant to challenge the said
notification again stalling the conduct of elections. The returning
officer had followed all the procedures before finalizing the voters
list. The duplication of members was removed and even otherwise it
would not affect the outcome of the election. She would seek
dismissal of these petitions in contending that elections must be
directed to be held as 23 years have passed by now without any
new elected body coming into existence. Further, Section 40(3)(a)
of the Act requires that the list of updated members is to be
published three months prior to the commencement of the election
process and new members registered/renewed between
01-04-2023 to 15-07-2023 has to be included. The Rules provide
for the publication of an additional list subsequent to the publication
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of the list of members finalized on the 1st of April every year which
is the cut of date as provided under Section 40(1) of the Act for the
register to be published. Since the process of elections was to
commence from 16-10-2023, it was required that the updated
voters list was to be published by 15-07-2023. However, since on
29-04-2023, the list of voters had already been published with the
cut off date as 1st April, 2023, new members registered as well as
the renewed members thereafter up until 15-07-2023 had to to be
included in the voters list as provided under Section 40(3)(a) of the
Act. The learned Council for the respondent No.3 - Council, in Writ
Petition No.24000 of 2023, would toe the lines of the learned
Additional Government Advocate in contending that the election
notification was not issued in violation of the provisions of the Act
and that there are no irregularities in the list of voters published by
the respondent No.2.
8. The learned counsel appearing for the respondent No.4 in
Writ Petition No.7473 of 2025 would contend that the petitioners
have an experience of more than two decades in the field of
pharmacy and therefore have no locus standi to file this Writ
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Petition as they can not be aggrieved by the eligibility criteria
requiring the applicant to have an experience of 15 years in the
filed of the pharmacy. The learned Additional Government Advocate
appearing for the respondent Nos.1 and 2 and the learned counsel
appearing for the respondent No.3, in Writ Petition No.7473 of
2025, would toe the lines of the counsel for the respondent No.4 in
contending that there are no violations of the Act or the Rules while
imposing the said eligibility criteria in the notification calling for
applications for nomination to the Council.
9. Further, the learned Additional Government Advocate
appearing for the respondent Nos.1 to 3 in Writ Petition No.12522
of 2025 would contend that the Writ Petition is not maintainable as
the petitioners do not have a fundamental or statutory right to
continue as members of a body dissolved in accordance with
governing statute and administrative procedure. The petitioners
have also approached this Court without exhausting their statutory
remedies. The State Government upon receiving several complaints
alleging mal-administration and mismanagement of funds,
exercising its powers under Section 19 of the Act, issued the
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government order dissolving the Council. The decision was taken in
public interest owing to the receipt of the said complaints pertaining
to administrative mal practices, non-compliance with the Act and
Rules including Section 28 of the Act. The Council being a statutory
body functioning under delegated powers of the State Government,
its existence and constitution are subject to compliance with the
statutory provisions. A report was drawn after investigation into the
said complaints. The report states that the Council despite the
passage of sixteen years has not conducted any elections. Among
the six elected members, two embers were serving as members for
over 20 years. Further, the term of the nominated members ended
in the year 2021, however, they continued to remain in power
without obtaining any government order. For the smooth
functioning of the Council, the Administrator was appointed with
immediate effect. Nominated and elected members of a dissolved
body do not have the vested right to continue after its lawful
dissolution. Decisions taken in public interest to ensure
transparency and good governance override individual interests of
members of such bodies. There is no violation of principles of
natural justice as the dissolution pertains to the collective functions
21
of the Council and not any punitive action against the petitioners
individually.
10. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
11. The afore-narrated facts are all a matter of record and
they would not require any reiteration. Before embarking upon
consideration of each petition individually, I deem it appropriate to
notice the statutory landscape upon which consideration of the
issue in the lis arises.
11.1. The Pharmacy Act, 1948 governs the constitution and
functioning of the Central and State Pharmacy Councils. Sections 2,
19, 22, 24, 25, 28, 32, 40 and 45 of the Act are the ones that are
relevant to be considered. They read as follows:
"... ... ...
2. Interpretation.-- In this Act, unless there is anything
repugnant in the subject or context,--
... ... ...
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(h) 'register' means a register of pharmacists prepared
and maintained under Chapter IV;
(i) 'registered pharmacist' means a person whose name is
for the time being entered in the register of the State in
which he is for the time being residing or carrying on his
profession or business of pharmacy;
(j) 'State Council' means a State Council of Pharmacy
constituted under Section 19, and includes a Joint State
Council of Pharmacy constituted in accordance with an
agreement under Section 20;
... ... ...
CHAPTER III
STATE PHARMACY COUNCILS
19. Constitution and composition of State
Councils.--Except where a Joint State Council is constituted
in accordance with an agreement made under Section 20, the
State Government shall constitute a State Council consisting
of the following members, namely:--
(a) six members, elected from amongst themselves
by registered pharmacists of the State;
(b) five members, of whom at least three shall be
persons possessing a prescribed degree or
diploma in pharmacy or pharmaceutical chemistry
or registered pharmacists, nominated by the
State Government;
(c) one member elected from amongst themselves by the
members of each Medical Council or the Council of
Medical Registration of the State, as the case may be;
(d) the chief administrative medical officer of the State ex
officio or if he is unable to attend any meeting, a
person authorized by him in writing to do so;
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(dd) the officer-in-charge of drugs control
organization of the State under the Drugs and
Cosmetics Act, 1940] (23 of 1940) ex officio or if
he is unable to attend any meeting, a person
authorised by him in writing to do so;
(e) the Government Analyst under the Drugs and
Cosmetics Act, 1940 (23 of 1940), ex officio, or where
there is more than one, such one as the State
Government may appoint in this behalf:
Provided that where an agreement is made under
clause (b) of sub-section (1) of Section 20, the agreement
may provide that the State Council to serve the needs of the
other participating State also shall be augmented by not more
than two members, of whom at least one shall at all times be
a person possessing a prescribed degree or diploma in
pharmacy or pharmaceutical chemistry or a registered
pharmacist, nominated by the Government of each of the said
other participating States, and where the agreement so
provides, the composition of the State Council shall be
deemed to be augmented accordingly.
... ... ...
22. Incorporation of State Councils.--Every State
Council shall be a body corporate by such name as may be
notified by the State Government in the Official Gazette or, in
the case of a Joint State Council, as may be determined in the
agreement, having perpetual succession and a common seal,
with power to acquire or hold property both movable and
immovable and shall by the said name sue and be sued.
... ... ...
24. Mode of elections.--Elections under this
chapter shall be conducted in the prescribed manner,
and where any dispute arises regarding any such
election, it shall be referred to the State Government
whose decision shall be final.
25. Term of office and casual vacancies.--(1)
Subject to the provisions of this section, a nominated
or elected member, other than a nominated President,
shall hold office for a term of five years from the date
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of his nomination or election or until his successor has
been duly nominated or elected, whichever is longer.
(2) A nominated or elected member may at any time
resign his membership by writing under his hand addressed
to the President, and the seat of such member shall
thereupon become vacant.
(3) A nominated or elected member shall be deemed to
have vacated his seat if he is absent without excuse sufficient
in the opinion of the State Council from three consecutive
meetings of the State Council, or if he is elected under clause
(a) or (c) of Section 19 or 21, if he ceases to be a registered
pharmacist or ceases to be a member of the Medical Council
or Council of Medical Registration of the State, as the case
may be.
(4) A casual vacancy in the State Council shall be filled
by fresh nomination or election, as the case may be, and the
person nominated or elected to fill the vacancy shall hold
office only for the remainder of the term for which the
member whose place he takes was nominated or elected.
(5) No act done by the State Council shall be called in
question on the ground merely of the existence of any
vacancy in, or any defect in the constitution of, the State
Council.
(6) Members of the State Council shall be eligible for
re-nomination or re-election.
... ... ...
28. Information to be furnished.--(1) The State
Council shall furnish such reports, copies of its minutes and of
the minutes of the Executive Committee, and abstracts of its
accounts to the State Government as the State Government
may from time to time require and copies thereof shall be
sent to the Central Council.
(2) The State Government may publish, in such
manner as it may think fit, any report, copy, abstract or other
information furnished to it under this section.
... ... ...
25
32. Qualifications for subsequent registration.--
(1) After the date appointed under sub-section (2) of Section
30 and before the Education Regulations have, by or under
Section 11, taken effect in the State, a person who has
attained the age of eighteen years shall on payment of
the prescribed fee be entitled to have his name entered
in the register if he resides or carries on the business
or profession of pharmacy in the State and if he--
(a) satisfies the conditions prescribed with the prior
approval of the Central Council, or where no
conditions have been prescribed, the conditions
entitling a person to have his name entered on
the first register as set out in Section 31, or
(b) is a registered pharmacist in another State, or
(c) possesses a qualification approved under Section
14:
Provided that no person shall be entitled under
clause (a) or clause (c) to have his name entered on
the register unless he has passed a matriculation
examination or an examination prescribed as being
equivalent to a matriculation examination.
(2) After the Education Regulations have by or under
Section 11 taken effect in the State, a person shall on
payment of the prescribed fee be entitled to have his name
entered on the register if he has attained the age of eighteen
years, if he resides, or carries on the business or profession of
pharmacy, in the State and if he has passed an approved
examination or possesses a qualification approved under
Section 14 or is a registered pharmacist in another State.
... ... ...
CHAPTER IV
REGISTRATION OF PHARMACISTS
... ... ...
40. Printing of register and evidentiary value of
entries therein.--(1) As soon as may be after the 1st day of
April subsequent to the commencement of the Pharmacy
26
(Amendment) Act, 1959 (24 of 1959), the Registrar shall
cause to be printed copies of the register as it stood on the
said date.
(2) The Registrar shall thereafter cause to be
printed as soon as may be after the 1st day of April in
each year copies of the annual supplement to the
register referred to in sub-section (1), showing all
additions to, and other amendments in, the said
register.
(3) (a) The register shall be brought up-to-date
three months before ordinary elections to the State
Council are held and copies of this register shall be
printed.
(b) The provisions of sub-section (2) shall apply
to the register as so printed as they apply to the
register referred to in sub-section (1).
(4) The copies referred to in sub-section (1) or sub-
section (2) or sub-section (3) shall be made available to
persons applying therefore on payment of the prescribed
charge and shall be evident that on the date referred to in the
register or annual supplement, as the case may be, the
persons whose names are entered therein were registered
pharmacists.
... ... ...
45. Appointment of Commission of Enquiry.--(1)
Whenever it appears to the Central Government that the
Central Council is not complying with any of the provisions of
this Act, the Central Government may appoint a Commission
of Enquiry consisting of three persons, two of whom shall be
appointed by the Central Government, one being the Judge of
a High Court, and, one by the Council; and refer to the
matters on which the enquiry is to be made.
(2) The Commission shall proceed to enquire in such
manner as it may deem fit and report to the Central
Government on the matters referred to it together with such
remedies, if any, as the Commission may like to recommend.
27
(3) The Central Government may accept the
report or remit the same to the Commission for
modification or reconsideration.
(4) After the report is finally accepted, the
Central Government may order the Central Council to
adopt the remedies so recommended within such time
as may be specified in the order and if the Council fails
to comply within the time so specified, the Central
Government may pass such order or take such action
as may be necessary to give effect to the
recommendations of the Commission.
(5) Whenever it appears to the State Government
that the State Council is not complying with any of the
provisions of this Act, the State Government may
likewise appoint a similar Commission of Enquiry and
pass such order or take such action as specified in sub-
sections (3) and (4)."
Section 2(h) defines the term 'register' as the register maintained
under Chapter IV of the Act. In terms of Section 2(i) of the Act, a
'registered pharmacists' is a person whose name is entered within
the register of the State. Chapter III of the Act deals with the
establishment of the State Pharmacy Councils. Section 19 of
Chapter IV of the Act, provides for the constitution and composition
of the State Councils. Section 19(a) of the Act provides that, the
Council shall consist of six members elected by the registered
pharmacists from amongst themselves and Section 19(b) of the
Act, states that that five members would be nominated by the
28
State Government to the Council, of whom atleast three would be
persons possessing a degree or diploma in pharmacy or registered
as a pharmacist. In terms of Section 19(dd) of the Act, an officer
in-charge of the Drugs Control Organization of the State under the
Drugs and Cosmetics Act, 1940 would be the ex-officio Chairman of
the Council. Section 24 deals with the mode of elections. It would
be in the manner prescribed. The prescription would be under the
Rules. Further, in the event of any dispute pertaining to the
elections, the decision of the State Government would be final.
Chapter IV of the Act deals with the procedure for registration of
pharmacists. Section 40 of Chapter IV of the Act, deals with
printing of the register and evidentiary value of entries printed in
the register. Section 40(2) provides that, after the 1st day of April
each year, the Registrar shall print an annual supplement to the
register showing all the additions and other amendments made to
the register. Section 40(3)(a) mandates that the register should be
up to date, three months before the ordinary election to the State
Council and copies of that register are to be printed. Copies so
printed should be made available to persons applying therefore on
payment of the prescribed charges. Section 45(5) of the Act
29
provides for the appointment of a Commission of Enquiry by the
State Government, whenever there appears to have been any
violation of the provisions of the Act by the State Councils. The
Commission of Enquiry is to pass any order or take any such action
as provided under Sections 45(3) and (4) of the Act.
11.2. Then come the Karnataka State Pharmacy Council
Rules, 1968, formulated under the provisions of the Act. The Rules
that are relevant to be noticed are Rules 2, 3 and 4 of the Rules.
They read as follows:
"... ... ...
2. Definitions: In these rules, unless the context
otherwise requires.
(a) "Act" means the Pharmacy Act, 1948 (Central Act 8 of
1948);
(b) "Council" means the Karnataka State Pharmacy Council
constituted under Section 19;
... ... ...
(j) "Returning Officer" means the Returning Officer
appointed by the Government for conducting
elections under Chapter III of the Act;
... ... ...
PART II ELECTION OF THE STATE PHARMACY COUNCIL
ELECTION UDNER SECTION 19(a)
30
3. Publication of Election Calendar. - (1) In the
case of election held for the first time under clause (a) of
Section 19, the Returning Officer shall issue a notice to the
electorate apprising it of the election and requiring it to elect
the members within the date mentioned in the notice. Such
notice shall be published in the Karnataka Gazette and in such
other manner as the Returning Officer thinks fit. The
Returning Officer shall also publish in the Karnataka Gazette a
notice in Form A inviting nominations.
(2) In case of elections other than those held for
the first time under clause (a) of Section 19, the
President shall as soon as conveniently may be, after
the appointment of the Returning Officer, issue a notice
to the electorate apprising it of the vacancy and
requiring it to elect the members within the date
mentioned in the notice. Such notice shall be published
in the Karnataka Gazette and in such other manner as
the President thinks fit. On the publication of such
notice, the Returning Officer shall forthwith publish in
the Karnataka Gazette a notice in Form A inviting
nominations.
(3) The Council (or the Government in the case of first
election) shall appoint and shall notify in the Karnataka
Gazette and in such other manner as it thinks fit for.
(a) the last date for the receipt of nomination papers;
(b) the date and time for the scrutiny of nomination
papers;
(c) withdrawal of candidature;
(d) the date for the final publication of the names of
candidates;
(e) the last date for the despatch of voting papers under
Rule 10(1); and
(f) the last date for the receipt of voting papers and the
counting of votes.
... ... ...
31
4. List of voters. - (1) The first register published
under sub-section (4) of Section 30 as amended in the
manner specified in sub-section (5) of Section 30 shall be the
final electoral roll for the first election under Section 19(a).
(2) The register, as last printed under Section 40,
together with the list or lists published by the
Returning Officer of Pharmacists registered subsequent
to the printing of the Register, shall be the final
electoral roll for the subsequent election under clause
(a) of Section 19.
(3) Copies of the electoral roll containing the name,
qualification and addresses of the electors shall be made
available for sale at a price not exceeding rupees two to be
fixed by the President or the Government in the case of that
election, as the case may be."
(Emphasis supplied at each instance)
Rule 2(j) of the Rules defines who is a 'Returning Officer'. Rule 3
deals with publication of election calendar and Rule 4 deals with the
list of voters. Part II of the Rules deal with elections to the State
Pharmacy Council provided under Section 19(a) of the Act. In terms
of Rule 3(2) of the Rules, elections to be held under Section 19(a)
of the Act, would begin with the appointment of a returning officer
who would issue a notice to the electorate apprising it of the
vacancy and requiring it to elect members within the date
mentioned in the notice. Such notice should be published in the
Karnataka Gazette, for inviting nominations. The list of voters
32
mentioned in the Register as found in Rule 4(2) must be the list
last printed under Section 40 of the Act, together with the list or
lists published by the Returning Officer of Pharmacists registered
subsequent to the printing of such register. The list which includes
Pharmacists registered subsequent to the printing of the register
shall be the final electoral roll for the subsequent election under
clause (a) of Section 19 of the Act.
12. In light of the aforesaid statutory landscape governing
the constitution and conduct of elections for the State Council, each
petition is now required to be considered on its merit.
WRIT PETITION NO.24000 OF 2023:
13. Since the challenge in Writ Petition No.24000 of 2023 is
against the notification issued on 03-10-2023, through which the
elections to the Council come to be notified, the said notification is
required to be noticed. The notification/clarification issued on
03-10-2023, notifying the conduct of elections, reads as follows:
33
The aforesaid notification was issued under Rule 3(1)(2) of the
Rules for conducting elections in accordance with Section 19(a) of
the Act. The revised Calendar of Events also comes to be notified
for conducting the elections. As per the Calendar of Events, the
date of commencement of the elections and issuance of the
34
nomination papers was on 16-10-2023 and the last date of
receiving the nomination papers was on 31-10-2023. The elections
were to conclude by 18-12-2023.
14. It is the contention of the petitioners that the aforesaid
notification was issued in violation of Rule 3(2) of the Rules and
Section 40(3)(a) of the Act. It is argued that the elections cannot
be conducted without a proper list of voters; that the up to date list
was to be published 3 months prior to the commencement of
elections and that there were certain irregularities in the list of
eligible voters which was published by the Returning Officer.
Therefore, the timelines in the case at hand are required to be
noticed:
08-05-2022 A press note is issued by the Returning Officer asking
the pharmacists to register themselves with the
Council
29-04-2023 The Returning Officer publishes the list of eligible
voters which are a total of 43,434 in number. This list
is to be published 3 months prior to the conduct of
elections, in accordance with Section 40(3)(a) of the
Act.
03-10-2023 The notification is issued, notifying the elections to
the Council under Section 19(a) of the Act and also
notifying the calendar of events. This notification
comes to be published close to seven months after
35
the publication of the list of eligible voters, published
on 29-04-2023. The Form-A as provided under Rule
3(2) of the Rules was also issued inviting
applications/nominations for the elections.
10-10-2023 A legal notice is issued against the notification dated
03-10-2023.
12-10-2023 A new notification is issued by the Returning Officer
notifying the additional list of voters, thereby
increasing the total number of registered pharmacists
who are eligible to vote to 48,974 voters. As per this
notification, the pharmacists whose registration was
restored and also those who registered between
01-04-2023 to 15-07-2023 were also allowed to vote
and contest in the elections. Publication of this
additional list is provided under Section 40(2) of the
Act.
13-10-2023 Another representation is submitted against the
publication notifying the elections on 03-10-2023 and
also against the subsequent notification dated
12-10-2023 increasing the list of eligible voters.
16-10-2023 As per the calendar of events provided in the
notification dated 03-10-2023, the nomination papers
were to be issued on 16-10-2023. This was
considered to be the date for commencement of
elections.
30-10-2023 The aforesaid nomination papers were to be
submitted by 30-10-2023 in terms of the calendar of
events.
If the aforesaid timelines are noticed, it is clear that there is no
violation of the provisions of the Act or the Rules while notifying the
elections. The argument of the petitioners that the final list of
voters was not published along with the notification dated
36
03-10-2023 is only to be rejected, for the reason that neither the
Act nor the Rules, as noted supra specify that the list of voters is to
be published along with the notification of elections. Therefore, the
notification dated 03-10-2023, notifying the elections to the
Council, does not deserve interference at the hands of this Court.
15. Rule 4(2) of the Rules noted supra clearly provides what
would constitute the final electoral roll for subsequent elections
under Section 19(a) of the Act. It would comprise of the register
last printed under Section 40 of the Act along with the registers
printed by the Returning Officer subsequent to the register printed
under 40 of the Pharmacy Act. The law is replete with judicial
precedents emphasizing the importance of the preparation of
electoral rolls and delineating the scope of interference by
constitutional courts in proceedings challenging such electoral rolls.
It therefore becomes apposite to notice a few judgments.
37
15.1. The Apex Court in P.T. RAJAN v. T.P.M. SAHIR1 has
held as follows:
"... ... ....
37. The purport and object of preparation of an
electoral roll cannot be underestimated in view of the
fact that thereby the persons included therein make the
persons to decide as to whether they can contest
election wherefor an enlistment of a voter is necessary.
Electoral roll is also helpful for the candidates to assess
their chance of success. For reference to the final
electoral roll, it is also required by the candidates to
enable them to canvass amongst the voters.
Availability of a final electoral roll with the candidate
is, thus, a matter of great importance for him. There
cannot further be any doubt whatsoever that the right to vote
having regard to Section 62 of the 1951 Act vis-à-vis Article
326 of the Constitution of India is a valuable right. A person
in terms of Section 62 of the 1951 Act is entitled to exercise
his right of franchise or is disabled therefrom if his name does
or does not find place in the electoral roll.
... ... ....
48. Furthermore, even if the statute specifies a
time for publication of the electoral roll, the same by
itself could not have been held to be mandatory. Such a
provision would be directory in nature. It is a well-
settled principle of law that where a statutory
functionary is asked to perform a statutory duty within
the time prescribed therefor, the same would be
directory and not mandatory. (See Shiveshwar Prasad
Sinha v. District Magistrate of Monghyr [AIR 1966 Pat 144:
ILR 45 Pat 436 (FB)], Nomita Chowdhury v. State of
W.B. [(1999) 2 Cal LJ 21] and Garbari Union Coop.
Agricultural Credit Society Ltd. v. Swapan Kumar
Jana [(1997) 1 CHN 189].)"
1
(2003) 8 SCC 498
38
The Apex Court holds the purport and object of preparation of an
electoral roll cannot be underestimated in view of the fact that the
persons included therein make the persons to decide as to whether
they can contest election or otherwise. Therefore, preparation of
final electoral roll thus assumes great importance for any election or
for any candidate thereof. Further, The Apex Court holds that, even
if the statute specifies a time for publication of the electoral roll, the
same by itself cannot be held to be mandatory as it is a well settled
principle that when a statutory functionary is asked to perform a
statutory duty within the time prescribed thereof, unless a
consequence is notified it becomes directory.
15.2. Earlier to the afore-quoted judgment, the Apex Court in
the case of CHIEF COMMISSIONER, AJMER v. RADHEY SHYAM
DANI2 had amplified the essence of preparation of an appropriate
electorate roll and held as follows:
"... ... ....
13. It is of the essence of these elections that
proper electoral rolls should be maintained and in order
that a proper electoral roll should be maintained it is
necessary that after the preparation of the electoral
2
(1956) 2 SCC 564
39
roll opportunity should be given to the parties
concerned to scrutinise whether the persons enrolled
as electors possessed the requisite qualifications.
Opportunity should also be given for the revision of the
electoral roll and for the adjudication of claims to be
enrolled therein and entertaining objections to such
enrolment. Unless this is done, the entire obligation
cast upon the authorities holding the elections is not
discharged and the elections held on such imperfect
electoral rolls would acquire no validity and would be
liable to be challenged at the instance of the parties
concerned. It was in our opinion, therefore, necessary for
the Chief Commissioner to frame rules in this behalf, and
insofar as the Rules which were thus framed omitted these
provisions they were defective."
15.3. The High Court of Rajasthan in KUSHAL CHAND v.
STATE OF RAJASTHAN3 holds as follows:
"... ... ....
10. A Full Bench of this Court consisting of D.M.
Bhandari, L.N. Chhangani and B.P. Beri, J. (as they then
were) in Atma Singh's case (supra) observed as under:--
"It will neither be reasonable nor proper to hold
that non-compliance of the provisions of the Act relating
to pre-election matters can form the subject matter of
investigation in an election petition. Such matters can
hardly be an appropriate subject for investigation by an
Election Tribunal. Thus. S. 34 provides for questioning an
election for errors and defects in the conduct of election
committee by the returned candidate or by the Returning
Officer. The election, therefore, cannot be set aside by an
Election Tribunal for any mistake in the preparation of
electoral roll."
It was further observed therein as follows:
3
1986 SCC OnLine Raj 49
40
"The process of election starts by issuing of a
notification calling upon a constituency to elect a member
or members. Before such a notification can be issued, a
number of preliminary steps have to be taken under the
law. The law has laid down the manner in which these
things are to be done. There may arise cases in which the
authorities have failed to perform their functions in
accordance in law in doing these things Sometimes the
transgression of law may be inexcusable and of such a
serious nature that a court may be persuaded to take the
view that the bedrock to hold elections is missing. In such
circumstances, a citizen may apply to this Court under
Art. 226 of the Constitution for issuing of mandamus or
any other appropriate writ directing the State Govt. to
perform these things in accordance with law and the High
Court in an appropriate case may in its discretion issue
such a writ or direction restraining the Government to
hold election."
Thus, in view of the Full Bench decision of this Court, pre-
election disputes can only be challenged in the manner either
provided by the Act or the Rules concerning them or by an
appropriate writ under Article 226 of the Constitution.
... ... ...
14. Mohinder Singh Gill's case (supra) came up for
consideration. Lakshmi Charan Sen's case (supra) wherein it
was observed as under:
"The fact that certain claims for inclusion of names
in electoral rolls and objections relating to inclusion of
certain names therein are not finally disposed of, even
assuming that they are filed in accordance with law cannot
arrest the process of election to the legislature. The
election has to be held on the basis of the electoral roll
which is in force on the last date for making nominations.
The fact that the revision of electoral rolls, either
intensive or summary, is undertaken by the Election
Commission does not have the effect of putting the
electoral roll last published in cold storage. The revision of
electoral rolls is a continuous process which has to go on,
elections or no elections. Various provisions contained in
S. 21 indicate that if an electoral roll is not revised, its
validity and continued operation remain unaffected at
least in a class of cases. That exemplifies an important
41
principle, which applies in the case of electoral rolls. S.
21(3) of the Act of 1950 confers upon the Election
Commission the power to direct a special revision of the
electoral roll. The proviso to that sub-section also says
that until the completion of the special revision so
directed, the electoral roll for the time being in force shall
continue to be in force. That proves the point that Election
Laws abhor a vacuum. In so far as the electoral rolls are
concerned there is never a moment in the life of a political
community when some electoral roll or the other is not in
force. Section 23(3) of the said Act also points in the
same direction. It is not suggested that claims and
objections filed in the prescribed form should not be
decided promptly and in accordance with law. But the
important point which must be borne in mind is that
whether or not a revision of an electoral roll is undertaken
and, it undertaken whether or not it is completed, the
electoral roll for the time being in force must hold the
field."
It was further observed as under:
"Thus, the fact that an appeal is pending under r.
23(1) against the decision of a Registration Officer under
r. 20, 21 or 21A does not constitute an impediment to the
publication of the roll and to the roll, upon such
publication, coming into force. Rule 20 provides for inquiry
into claims and objections; Rule 21 provides for inclusion
of names which are left out of the roll, owing to
inadvertence or error; while, Rule 21-A provides for the
deletion of names of dead persons and of persons who
cease to be or are not, ordinary residents of the particular
constituency. Notwithstanding the fact that the roll
contains these errors and they have remained to be
corrected or that the appeals in respect thereof are still
pending, the Registration Officer is under an obligation to
publish the roll by virtue of Rule 22."
Thus, absolute finality is attached to the electoral rolls
in force for the time being. These provisions of the
Representation of the People Act are almost similar to the
provisions of the Act and the Rules. Much stress was laid on
the passage quoted hereinabove from the Halsbury's Laws of
England, Edn. 2, Vol 12 under the heading "Commencement
of the Election." Their Lordships of the Supreme Court
in Lakshmi Charan Sen's case (supra) observed that
42
in Mohinder Singh Gill (supra) Krishna Iyer, J., speaking for
the Constitution Bench, has considered at great length the
scope and meaning of Art. 329(b) of the Constitution. It was
further observed as under:
"Describing that Article as the "Great Wall of
China", the learned Judge posed the question whether it is
so impregnable that it cannot be by passed even by Art.
226. Observing that "every step from start to finish of the
total process constitutes 'election not merely the
conclusion or culmination' the judgment concludes thus:
"The rainbow of operations, covered by the
compendious expression 'election' thus commences from
the initial notification and culminates in the declaration
of the return of a candidate."
While agreeing with the aforesaid observations of Mohinder
Singh Gill's case, their Lordships further observed as follows:
"We have expressed the view that preparation and
revision of electoral rolls is a continuous process, not
connected with any particular election. It may be difficult,
consistently with that view, to hold that preparation and
revision of electoral roll is a part of the election' within the
meaning of Art. 329(b)"
Thus, the upshot of the entire observation of their Lordships
has been that the expression 'election' commences from
the initial notification and culminates in the declaration
of the return of a candidate and that preparation and
revision of electoral rolls being continuous process, not
connected with any particular election cannot be held
to form part of the election within the meaning of
Article 329(b) of the Constitution. Of course, even after
these observations, it has been observed that perhaps,
as stated in Halsbury in the passage extracted
in Ponnuswami (supra) the facts of each individual
case may have to be considered for determining the
question whether any particular stage can be said to be
a part of the election process in that case and in that
event it should be to formulate a proposition which will
apply to all cases alike. These observations may relate
to the case where the revision of electoral rolls is made
43
permissible even after to the publication of the
notification or it may relate to the cases where even
after the publication of the notification, any particular
process which is otherwise a pre-election matter is
made part of the election process by any law or Rules
framed thereunder and not otherwise. So far as the
preparation of the Electoral Rolls under ss. 10 and 11 of
the Act and under rr. 6 to 12-B of the Rules is
concerned, the preparation of the electoral rolls is not
related to any particular election and, therefore, any
error illegality kept in preparation of the electoral rolls
cannot be challenged by way of an election petition
under r. 78(d)(iv) of the Rules.
15. It has been observed in Hapuram's case (supra)
that it is true that an election petition under the provisions of
the Representation of the People Act can also be entertained
where one of the grounds being non-compliance of the Act
and the Rules which is in perimateria with the provisions of r.
78(d)(iv) of the Rules but the Division Bench and Full Bench
of this Court as well as their Lordships of the Supreme Court
have categorically held in a number of authorities quoted
hereinabove that any illegality or irregularity committed
in the preparation of electoral rolls cannot be made the
basis of an election petition and, therefore, these
observation clinch the issue and admit if no other
interpretation than the one taken by us above. Even
while quoting the above said passage from Halsbury's
Law of England their Lordships of the Supreme Court
have observed in Lakshmi Charan Sen's case that
preparation of electoral rolls being a continuous
process unconnected with any particular election, it
will be difficult to hold consistently with that view that
preparation and revision of an electoral roll is a part of
election process which means that inspite of these
observations of the Halsbury's Law of England, their
Lordships of the Supreme Court recorded a categorical
finding that preparation of the electoral roll is not a
part of the election process. We are, therefore, unable to
agree with the submission of Mr. M. Mridul, learned counsel
for the non-petitioners that because the decision regarding
rejection of the objection petitions was given at a time
holding of the Panchayat elections was imminent and,
44
therefore, any illegality or irregularity committed in
preparation of the electoral rolls should form part of the
election process which could only be agitated by an election
petition and not otherwise in view of the aforesaid conclusion
arrived at by us, this contention does not find favour with us."
(Emphasis supplied at each instance)
The High Court holds that any illegality or irregularity committed in
the preparation of electoral rolls cannot be made the basis of an
election petition and is always a subject matter of writ petition. The
preparation of electoral roll is an important step towards an election
but not the election itself.
16. Now the representations are required to be noticed. These
representations, had been submitted by the petitioners with regard
to illegal drawing of members into the electoral roll. The
representation dated 13-10-2023 would read as follows:
"Date:13-10-2023
From:
Mr. Ashok Madarkhandi,
KSPC Reg.No.37776
#681, 3rd Block, 6th Main,
BEL Lay-out, Vidyaranyapura,
Bengaluru-560 097.
To
Smt. Soumya N.Gowda,
Returning Officer,
45
Election Karnataka State Pharmacy Council
And Deputy Director (Procurement)
National Health Mission, Arogya Soudha,
1st Floor East Wing, Magadi Road,
Bengaluru- 560 023.
Respected Madam,
Sub: Election of six member to the Karnataka state
Pharmacy Council.
Respected Madam, the following are hereby brought to your
information:
1. Pursuant to your good self's appointment as
Returning Officer, to conduct elections to elect 6 members to
the Karnataka State Pharmacy Council, your good-self
published a notification dated 3-10-2023 for the election of
office bearers for the period expiring on the December 23,
2028.
2. The notification fails to disclose the total number of
eligible voters, corresponding cut off registration dates to be
eligible to vote and also contest, for different categories, and
further to that the elections are to be conducted for the
council members who will hold position till December 23,
2028.
3. On 4-10-2023 Sri Ganghadhar V.Yavagal, President,
Karnataka State Pharmacy Council, had published calendar of
events for the elections as per which, the election process
commences with issue of nomination papers from 16-10-2023
and concludes 16-12-2023 date of declaration of result.
4. I wish to bring to your good self's kind notice that
without the number of list of voters, based on the cut-off
dates arrived and notified on 4-10-2023, is contrary to sub-
clause (2) of Clause (3) of Rule (3) of Karnataka State
Pharmacy Council Rules, 1968 read with Clause (a) of Sub-
Section 3 of Section 40 of the Pharmacy Act, 1948 and thus
the same is barred from being considered and used as the list
of eligible persons to vote or contest the elections as
explained in details below.
46
5. Explanation.
1. Part-II of Karnataka State Pharmacy Council Rules
1968 governs and mandates the provisions relating to holding
of the election.
2. Rule No.3-20 (including sub-rules thereof) of part-II
of the Karnataka State Pharmacy Council Rules, 1968
prescribes the exact number of conducting election and other
connected and related matters.
a. As per Clause sub-clause (2) of Clause (4) of Rules 3 of
the Karnataka State Pharmacy Council Rules, 1968, the
list of voters comprises of those whose name appears
in the register of pharmacists maintained by the
Karnataka State Pharmacy Council, as last printed
under Section 40 of the Pharmacy Act, 1948, together
with list or lists published by the returning officer,
containing the names of persons, who are registered
subsequent to the printing of the register.
b. As per clause (a) of Sub-clause 3 of Section 40 of the
Pharmacy Act, 1948, the Registrar of Pharmacists shall
be made up to date three months, prior to ordinary
elections to the State council are held and copies of this
register shall be printed.
c. As per clause sub-clause (3) of clause (4) of sub-Rule 3
of the Karnataka State Pharmacy Council Rules, 1968,
copies of the electoral roll containing the name,
qualification and addresses of the electors shall be
made available for sale at a price not exceeding Rs.2 to
be fixed by the President or the Government I n the
case of the election, as the case may be.
d. Prima facie it is evident that the list of voters reckoned
by your goodself and published on 4-10-2023, is not in
accordance with the legal provisions explained above.
e. Since the process of elections commenced from 16-10-
2023, the Register updated by the Karnataka State
47
Pharmacy Council, 3 months prior i.e., on 16-07-2023
shall be the basis for the list of voters.
Under the circumstances, the anomaly may be please be set
right.
Thanking you,
Yours faithfully,
Sd/- Ashok Madarkhandi
Registered Pharmacist
Reg.No.37776"
Earlier to the aforesaid representation, a legal notice dated
10-10-2023 is issued to the Returning Officer seeking for an
explanation regarding the violation of the Pharmacy Act and Rules
while issuing the notification dated 03-10-2023. The legal notice
reads as follows:
"Date:-10/10/2023
Place:-Bangalore
Legal Notice
To
Smt Soumya N Gowda, Returning Officer, Election Karnataka
State Pharmacy Council And Deputy Director (Procrument)
National Health Mission, Arogya Soudha, 1st Floor East Wing,
Magadi Road, Bangalore 560023.
Respected Madam,
Sub: Election of Six members to the Karnataka State
Pharmacy Council,
48
This Notice is being duly served on your Office to take
required actions and further steps.
Respected Madam, the following are hereby brought to your
information,
1. Pursuant to your good self's appointment as Returning
Officer, to conduct elections to elect 6 members to the
Karnataka State Pharmacy Council, your good self
published a notification dated 03/10/2023 for the election
of office bearers for the period expiring on the December
23 2028.
2. The notification fails to disclose the total number of eligible
to vote and also contest, for different categories, and,
voters, corresponding cut off registration dates to be
eligible further to that the elections are to be conducted for
the Council Members who will hold position till December
23 2028.
3. On 04/10/2023, Sri Ganghadhar V Yavagal, President
Karnataka State Pharmacy Council, had published calendar
of events for the elections as per which, the election
process commences with issue of nomination papers from
16/10/2023 and Concludes 16/12/2023, declaration of
result.
4. I wish to bring to your good self's kind notice that without
the number of list of voters, based on the Cut-off dates
Clause (2) of Clause (3) of Rule (3) of Karnataka State
04/10/2023, is contrary to Sub Pharmacy Council Rules,
1968 read with Clause (a) of Sub Section 3 of Section 40 of
The Pharmacy Act 1948 and thus the same is barred from
being considered and used as the list of eligible persons to
vote or contest the elections as explained in detail below.
5. Explanation
49
1. Part II of Karnataka State Pharmacy Council Rules
1968 Governs and mandates the provisions relating
to holding of the election.
2. Rule No. 3 -20 (including Sub rules thereof) of Part
II of The Karnataka State Pharmacy Council Rules
1968 prescribes the exact manner of conducting
election and other connected and related matters.
a. As per Clause Sub clause (2) of Clause (4) of Rule
3 of the Karnataka State Pharmacy Council Rules
1968, the list of voters comprises of those whose
name appears in the register of pharmacists
maintained by the Karnataka State Pharmacy
Council, as last printed under Section 40 of The
Pharmacy Act 1948, together with list or lists
published by the Returning Officer, containing the
names of persons, who are registered subsequent
to the printing of the Register.
b. As per clause a of Sub Section 3 of Section 40 of
the Pharmacy Act 1948, the Registrar of
pharmacists shall be made up to date three
months, prior to ordinary elections to the state
council are held and copies of this register shall
be printed
c. As per clause Sub clause (3) of clause (4) of Sub
Rule 3 of Karnataka State Pharmacy Council Rule
1968, copies of the electoral roll containing the
name, qualification and Addresses of the electors
shall be made available for sale at a price not
exceeding Rs. 2 to be fixed by the President or
the Government in the case of the election, as the
case may be.
d. Prima facie it is evident that the list of voters
reckoned by your good self and published on
04/10/2023, is not in accordance with the legal
provisions explained above.
e. Since the process of elections commences from
16/10/2023, the Register updated by the
50
Karnataka State Pharmacy Council, 3 months
prior i.e., on 16/07/2023 shall be the basis for
the list of voters.
Under the circumstances, the anomaly may be please be set
right
Thanking you
Yours Faithfully
Sd/-
Advocate (Neeraj Nirmal)"
Yet another representation was submitted on 21-10-2023 which is
also necessary to be noticed. It reads as follows:
"Date: 21-10-2023
From:
Y.Veera Narayana Gowda,
KSPC Reg.No.5444,
No.154, 9th Main, 14th Cross,
Lakkasandra Extn., Bangalore-560030.
To
Smt. Sowmya N.Gowda,
Returning Officer, KSPC Karnataka &
Deputy Director Procurement,
Rashtriya Arogya Abhiyana, Arogya Soudha,
Magadi Road, Bangalore-560 023.
Subject: Request for an updated and authorised
electoral list for the upcoming election of Karnataka State
Pharmacy Council.
Dear Madam,
I am a registered pharmacist (registered in 1982 with
Reg.No.5444 and renewed up to December 2023) and I am
writing to formally request an updated and authorised voter
51
list for the upcoming KSPC election as I am actively
contesting as a candidate.
I recently observed in the letter dated 3-10-2023
published on 4-10-2023.(No.............) that the total voter list
was reported as 32,434. However, in the letter dated 12-10-
2023 published on 13-10-2023 (No................) it was stated
that an additional 5544 (2157+3387) authorised voters were
included in that list. As a registered pharmacist and a
candidate in the upcoming elections, it is essential for me to
have access to the most accurate and up to date information
regarding the voters.
I also kindly request that, since the calendar of events
for the election was officially announced on 4-10-2023, there
should have not been any further changes or alterations to
the voter list to ensure the integrity and fairness of the
electoral process. Any modifications should have been made
before the announcement of calendar of events to guarantee
the stability and reliability of the voter list during the election
period.
Given the importance of ensuring the integrity and
transparency of the election process, it is essential that I am
provided with the exact number of eligible voters.
I kindly request you to provide me an updated voter
list that includes the exact number of eligible voters as of the
latest date attested by you. I am willing to pay the necessary
charges to obtain the authorised list.
Thank you,
Yours sincerely,
Sd/-
Y.Veera Narayana Gowda."
The representations quoted supra apart from challenging the notice
dated 03-10-2023 also seek clarification with regard to the final
52
voters list and the modifications made to the list subsequently. Any
amount of dissent that is projected by the learned counsel for the
respondents, to the petitioners challenge to the election notification
dated 03-10-2023, would not mean that consideration of the
representations also would not happen. If election has to be in
terms of law or in terms of what is prescribed, the notification
notifying the voters list should also be redone or otherwise only
after consideration of those representations in strict consonance
with law. Representations are quoted hereinabove. Therefore,
without setting aside the notification dated 03-10-2023 which is
challenged in Writ Petition No.24000 of 2023, I deem it appropriate
to direct the Returning Officer to consider those representations, in
respect of the notified voters list, examine the contentions raised
therein, and, if necessary, re-notify the voters list.
WRIT PETITION NO.7473 OF 2025:
17. In Writ Petition No.7473 of 2025, what is challenged is
the notification dated 28-02-2025 and the subsequent paper
publication issued on 01-03-2025, publishing the aforesaid
53
notification. Therefore, it becomes necessary to consider the said
notification. It reads as follows:
"GOVERNMENT OF KARNATAKA
FOOD SAFETY AND DRUG ADMINISTRATION
NOMINATION OF MEMBERS TO THEKARNATAKA STATE
PHARMACY COUNCIL (KSPC), VIJAYA NAGAR,
BANGALORE
REF. NO: FDA/56/YOJANE/2023-24 Dt. 21/02/2025
Date of publication in website: 28/02/2025
Last date for submission: 10/03/2025
ELIGIBILITY CRITERIA FOR NOMINATED MEMBERS TO
THE KARNATAKA STATE PHARMACY COUNCIL (KSPC)
Eligibility criteria Documents to be
submitted
1 Shall be a citizen of India Domicile certificate for 15
and a resident of years or relevant
Karnataka for the past 15 certificates showing
years. residence for 15 years in
Karnataka
2 Shall have a full time Relevant document to show
Degree or Diploma in candidate is holding full
Pharmacy or time Degree or Diploma in
Pharmaceutical Chemistry Pharmacy or Pharmaceutical
from a recognized Board Chemistry from a
set up by the Government. recognized Board set up by
the Government
3 Shall not be an elected Self attested declaration
member under clauses (a) stating that the candidate is
or (c) of Section 19 or 21 not a member of the
of the Pharmacy Act Medical Council or Council
of Medical registration of
the State
54
4 Shall possess a Valid Registration
Pharmacist license and certificate issued by
carried out business for KSPC and proof of
the past 15 years in the business like business
State of Karnataka. license.
5 Shall have good Affidavit declaring No
antecedents with no criminal complaints against
criminal complaints. the candidate on Rs. 100/-
stamp paper
6 No tax dues of any type to An Affidavit on Rs. 100/-
the Government. stamp paper to be
submitted. Self-attested
copy of relevant document
viz., PAN card/IT returns
copy etc.,
7 Shall not been debarred or Self attested declaration
removed from holding any about the same
posts nominated or elected
in any councils/ body of
state government or
private organization
8 Can be a teaching staff not Relevant certificates
below the rank of Associate attested by the
professor in any Pharmacy Management/Principal of
college and having a post the college/University to be
graduation in Pharmacy, submitted.
Pharmaceutical chemistry,
Pharmacology or
Pharmacognosy
9 Address proof like Aadhaar To be submitted.
card/ Voters ID/Driving
license
Note:
1. The applicant shall enclose the documents sought above
under Eligibility criteria along with the application form.
55
2. The applicants shall submit the application with relevant
documents by hand or by registered post on or before the
last date of submission.
3. Preference shall be given to Women candidate and candidate
from Hyderabad Karnataka region (371J).
4. The member so nominated from the State government
should represent themselves in a manner which doesn't go
against the Government objectives and concern.
5. For any further query/assistance related to applications only,
contact :-Smt. Pramila ND, Chief Scientific Officer, DTL,
Bangalore. Mobile No.: 9880969628
Sd/-
Commissioner
Food Safety and Drug Administration
Karnataka"
(Emphasis added)
The notification is issued by the Commissioner, for nomination of
members to the Council under Section 19(b) of the Act. Section
19(b) provides that five members shall be nominated by the State
Government, of whom at least three shall be persons possessing
the prescribed degree or diploma in Pharmacy or Pharmaceutical
Chemistry or are registered pharmacists. For the purpose of such
nomination, the notification also prescribes certain eligibility
criteria. Condition (4) of the eligibility criteria in the notification,
makes it mandatory for an applicant to not only possess a valid
pharmacist licence, but should also have been carrying on business
in the State of Karnataka for a minimum period of fifteen years.
56
18. It is the contention of the petitioners that the aforesaid
condition is contrary to Section 19(b) of the Act and that the
notification impermissibly introduces an additional eligibility
criterion not contemplated by the statute. If Section 19(b) of the
Act is noticed, it nowhere stipulates that a person nominated
thereunder must have been carrying on business, or possess
experience, as a pharmacist for a period of fifteen years. This
contention of the petitioners merits acceptance.
19. It is a well settled principle of law that, when the Act
prescribes the eligibility criteria or qualifications, the executive
cannot, by notification or executive instructions, impose additional
qualifications unless the Act delegates such authority. A notification
issued or the conditions imposed by way of such a notification by
the executive, cannot travel beyond the provisions of the Act. It
therefore becomes germane to notice a few judicial precedents on
this issue:
57
19.1. The Apex Court in the case of AMARAGOUDA L. PATIL
(DR.) v. UNION OF INDIA4, observes as follows:
"...... ...... ......
46. It would also be pertinent to highlight that though the
third respondent averred in his application (in pursuance to the
Notification) that he was the head of the
department/organisation since May 2008, a contention which we
have rejected, it is also plain and clear that he misrepresented
his work experience for being considered for the coveted
position of Chairperson of the Commission. What the
consequence of an illegal appointment could be, needs no
emphasis.
47. The only escape route, which could have potentially
saved the selection of the third respondent from interference, is
conferment of a power by the statute on the appointing
authority to relax the essential qualification(s). Responding to
our query, Mr. Banerjee frankly submitted that the NCH Act did
not confer any such power of relaxation on the appointing
authority. This obliterates the final beacon of hope for the third
respondent.
48. The Division Bench has referred to the case of Tajvir
Singh Sodhi v. State of Jammu and Kashmir19 delivered by this
Court to hold that the scope of interference is limited. Paragraph
66 has been referred to, which reads thus:
"66. Thus, the inexorable conclusion that can be drawn is
that it is not within the domain of the Courts, exercising the
power of judicial review, to enter into the merits of a selection
process, a task which is the prerogative of and is within the
expert domain of a Selection Committee, subject of course to a
caveat that if there are proven allegations of malfeasance or
violations of statutory rules, only in such cases of inherent
arbitrariness, can the Courts intervene."
4
2025 SCC OnLine SC 297
58
49. While there can be no gainsaying that interference
should be limited, particularly when a merit review is sought as
in Tajvir Singh Sodhi (supra), the decision does acknowledge
that interference could still be made if there are proven
allegations of malfeasance or violations of statutory
rules, laying bare inherent arbitrariness in the process.
This decision too reinforces the legal position that if any
of the grounds on which judicial review of administrative
action is shown to exist, interference on such ground
would be well-nigh permissible. It is not an arena in
which intervention is completely barred.
50. In the case of Sushil Kumar Pandey v. High Court of
Jharkhand20, this Court while considering the departure from the
statutory rules midway through the selection procedure held
that the statutory rules must be given primacy in any selection
process.
"22. We find from Rule 18 of the 2001 Rules, the task of
setting cut-off marks has been vested in the High Court but this
has to be done before the start of the examination. Thus, we
are also dealing with a situation in which the High Court
administration is seeking to deviate from the Rules guiding the
selection process itself. We have considered the High Court's
reasoning for such deviation, but such departure from statutory
rules is impermissible. We accept the High Court
administration's argument that a candidate being on the select
list acquired no vested legal right for being appointed to the
post in question. But if precluding a candidate from
appointment is in violation of the recruitment rules without
there being a finding on such candidate's unsuitability, such an
action would fail the Article 14 test and shall be held to be
arbitrary. The reason behind the Full Court Resolution is that
better candidates ought to be found. That is different from a
candidate excluded from the appointment process being found
to be unsuitable."
51. We hold that in the matter of essential
qualifications prescribed by the statute, there should
neither be any deviation from the statutory requirements
nor the advertisement inviting applications while
conducting any selection process, unless power to relax
the qualifications is shown to exist.
59
52. Having said that, there is one other aspect which needs
to be briefly dealt with. The Division Bench observed that
unless mala fides are proved, the Courts should adopt a
hands-off approach. Broadly speaking, there could be
little quarrel with such proposition. However, bearing in
mind the facts and circumstances, we hold that the
Division Bench grossly erred in failing to consider
that mala fides, in the sense of malice in fact, i.e., actual
malice, is not the only condition for interference; it is
open to a Court to interfere when legal malice or malice
in law is demonstrated to exist.
53. In Kalabharati Advertising v. Hemant Vimalnath
Narichania21, this Court discussed the concept of 'malice in law'.
Profitable reference may be made to the following passages:
"25. The State is under obligation to act fairly without ill will
or malice-- in fact or in law. 'Legal malice' or 'malice in law'
means something done without lawful excuse. It is an act done
wrongfully and wilfully without reasonable or probable cause,
and not necessarily an act done from ill feeling and spite. It is a
deliberate act in disregard to the rights of others. Where malice
is attributed to the State, it can never be a case of personal ill
will or spite on the part of the State. It is an act which is taken
with an oblique or indirect object. It means exercise of
statutory power for 'purposes foreign to those for which it is in
law intended'. It means conscious violation of the law to the
prejudice of another, a depraved inclination on the part of the
authority to disregard the rights of others, which intent is
manifested by its injurious acts. ...
26. Passing an order for an unauthorised purpose
constitutes malice in law. ..."
54. Again, in the case of R.S. Garg v. State of U.P.22, this
Court applied this principle to service disputes by holding as
follows:
"26. "Malice" in its legal sense means malice such as may
be assumed for a wrongful act done intentionally but without
just cause or excuse or for one of reasonable or probable
60
cause. The term "malice on fact" would come within the
purview of the aforementioned definition. Even, however, in the
absence of any malicious intention, the principle of malice in
law can be invoked as has been described by Viscount Haldane
in Shearer v. Shields [[1914] A.C. 808 : 83 LJPC 216 : 111 LT
297 (HL)] AC at p. 813 in the following terms:
'A person who inflicts an injury upon another person in
contravention of the law is not allowed to say that he did so
with an innocent mind; he is taken to know the law, and he
must act within the law. He may, therefore, be guilty of malice
in law, although, so far as the state of his mind is concerned,
he acts ignorantly, and in that sense innocently.'
......"
55. Furthermore, in the case of Swaran Singh
23
Chand v. Punjab SEB , this Court held that non-compliance of
the State's own directions would constitute malice in law. We
quote the relevant passage hereunder:
"8. It is furthermore well settled that when the State lays
down the rule for taking any action against an employee which
would cause civil or evil consequence, it is imperative on its
part to scrupulously follow the same. Frankfurter, J.
in Vitarelli v. Seaton [3 L.Ed.2d 1012 : 359 US 535 (1959)]
stated : (US pp. 546-47)
'An executive agency must be rigorously held to the
standards by which it professes its action to be judged. ...
Accordingly, if dismissal from employment is based on a
defined procedure, even though generous beyond the
requirements that bind such agency, that procedure must be
scrupulously observed. ... This judicially evolved rule of
administrative law is now firmly established and, if I may add,
rightly so. He that takes the procedural sword shall perish with
that sword.'
...
18. In a case of this nature the appellant has not alleged
malice of fact. The requirements to comply with the directions
contained in the said Circular Letter dated 14-8-1981 were
necessary to be complied with in a case of this nature. Non-
compliance wherewith would amount to malice in law......Thus,
when an order suffers from malice in law, neither any averment
as such is required to be made nor strict proof thereof is
61
insisted upon. Such an order being illegal would be wholly
unsustainable."
(emphasis supplied)
56. Based on the above, there is little doubt that the
State, here the UoI, has exercised a power for a purpose
which is foreign to that for which the power in law is
intended. Viewed from this perspective, the act of
appointing the third respondent as Chairperson despite
he not having the requisite experience suffers from
malice in law.
57. We hasten to add that whenever appointment to a
public office is sought to be made, irrespective of the
nature of the office, the rules prescribing mandatory
eligibility criteria must be applied in a strict manner; after
all, every public appointment under Article 16 of
the Constitution must be fair, non-arbitrary and
reasonable. Tested on this touchstone, the appointment of the
third respondent fails to pass muster."
19.2. Later, the Apex Court in the case of STATE OF
HARYANA v. KRISHAN KUMAR5, observes as follows:
"...... ...... ......
55. After perusal of the contents of the advertisement
issued by the State of Haryana, it reveals that in addition to the
educational qualification prescribed under Rule 49 of the Drugs
Rules which is similarly specified in the Rules of 2018, it is
contended that the candidates who applied for the post of
DI/DCO may not be eligible unless they possess the experience
as enumerated in the Rules of 2018. If we look into the
advertisement issued by the State of Karnataka whereby,
they have added experience in the nature of 'minimum'
qualification. Therefore, by virtue of the Rules of 2018 or
the Rules of 2013, the States of Haryana and Karnataka
have made the qualification of experience a 'minimum
5
2026 SCC OnLine SC 79
62
qualification', which under Drug Rules, was prescribed
only for Inspectors for the purpose of inspection under
Rule 52. In our view, such recourse is contrary to the
central law i.e., the D&C Act which is primary in nature. It
is further required to be observed that on conjoint
reading of Section 103 of the GOI Act and Article 372 of
the Constitution of India, if the respective States wish to
derive power for prescribing the qualification for
appointment of Inspector, they may take the recourse as
permissible by way of making an amendment in the D&C
Act, as made by the State of Maharashtra for certain
provisions. In absence of such amendment or repeal,
adding experience as prescribed in the respective State
Rules as 'minimum qualification' for appointment to the
post of DI/DCO is completely inconsistent with the
recourse permissible. Further, when the subject was
already occupied by the primary legislation, therefore,
such recourse may not be countenanced under the law.
56. In view of the above, it is concluded that the
powers so exercised either by the State of Haryana or
Karnataka to prescribe such qualifications for
appointment of Inspector, over and above the provisions
of the Drug Rules, is completely alien, in particular when
the subject was already occupied by the Central
Government and the rules have been framed by it. Once it
has been held that State Governments do not have the
power to legislate on the issue in the manner as done,
and the recourse as permissible has not been taken, the
question of repugnancy is not required to be dealt with.
In such view of the matter, we are of the considered opinion
that the High Court of Punjab and Haryana at Chandigarh or the
High Court of Karnataka at Bengaluru have interpreted the
provisions in right earnest and rightly allowed the writ petitions
filed by the participants, assailing the addition of experience as
an essential qualification to participate in the process of
selection. Therefore, the question nos. (i) and (ii) are answered
accordingly."
(Emphasis supplied at each instance)
63
The Apex Court, in the afore-quoted judgments, observes that
where the statute prescribes the essential qualifications, there can
be no deviation from the statutory requirements, nor can an
advertisement or notification inviting applications for a selection
process prescribe qualifications at variance with those contained in
the statute, unless the power to relax or modify such qualifications
is expressly conferred. Further, where the governing statutory
provisions have already prescribed the requisite qualifications,
additional eligibility conditions cannot be introduced.
20. If the notification dated 28-02-2025 is tested on the anvil
of the law laid down by the Apex Court, the same deserves to be
quashed, as the eligibility conditions prescribed therein travel
beyond the provisions of the Act. Consequently, the subsequent
paper publication dated 01-03-2025, issued pursuant to the said
notification, also deserves to be quashed.
WRIT PETITION NO.12522 OF 2025:
21. In Writ Petition No.12522 of 2025, what is challenged is
the appointment of an administrator, pursuant to the Council being
64
dissolved. The said appointment happens in terms of the
government order dated 05-04-2025. The order reads as follows:
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ಶನ'ೊಂQರುವ 05 ಜನ ಸದಸ ರ ಅವ+ 2021 ೆR ಮು0Oದ&ರೂ ಸಹ ಸ ಾ ರದ Sಾವ61ೇ
ಆ1ೇಶವನು% ಪAೆಯ1ೇ ಅ+ ಾರದ9: ಮುಂದುವ ೆOರು*ಾ ೆ.ೆ
ಕ ಾ ಟಕ ಾಜ ಾಮ ಪ ಷ ನ ರುದT ಹಲ=ಾರು Chemist & Druggist ಸಂಘಟ ೆಗಳ
2ಾಗೂ ಕ ಾ ಟಕ ಾಜ ಾಮ ಪ ಷ ನ ಸದಸ ಾದ ಸದ ಪ ಷ ನ ಾಯ =ೈಖ , PÀvÀðªÀå
/ೋಪ 2ಾಗೂ ಅ+ ಾರ ದುಬ ಳ ೆ ಕು ತು ದೂರುಗಳನು% WXೕ £ÁUÀgÁdÄ JA.J¸ï. gÀªÀgÀÄ ¸ÀºÀ ¢£ÁAPÀ:
03.03.2023gÀ°è ¤ÃrzÀÄÝ, CªÀÅUÀ¼À°è ಪXಮುಖ=ಾ0 ಸದ ಪ ಷ ನ Y7ಾZ[ ರವರ ಆಡ ತ
1ೋಷಗಳ , ಏಕಪ\ೕಯ M]ಾ ರಗಳ £ÉÆÃAzÀt ನ ೕಕರಣ <ಾಡುವ9: ಾಮ ಸFಗ 'ೆ
Mೕಡು ರುವ Bಂ7ೆ,
Bಂ7ೆ Iರುಳ ಗಳ ೊ%ಳ'ೊಂಡ ಅ ೇಕ ದೂರು 2ಾಗೂ ಸ ಾ ರದ ಅನುಮ ಇಲ:1ೆ
ಪ ಷ ನ ಹಣವನು% ಾನೂನು _ಾBರ=ಾ0 Mutual Fundsಗಳ9:
ಗಳ9: ಹೂQರುವ ಬ'ೆ,
ಬ'ೆ ಇ/ಾ`ೆಯ B ಯ
ಅ+ ಾ Sಾದ ಅಪರ ಔಷದ MಯಂತXಕರ ರವರು ಸದ ದೂ ನ ಬ'ೆa ತM`ೆಯನು% ೈ'ೊಂಡು Y7ಾZ[
ಮತು ಪ ಷ ನ9: ಆ0ರುವ
ಆ0ರುವ ಅ+ ಾರ ದುಬ ಳ ೆಯ ಕು ತು O ಾಂಕ:
ಾಂಕ 31.01.2024 ರ9: ವರOಯನು%
MೕQರು*ಾ ೆ.ೆ ಸದ ವರOಯನು% ಔಷಧ MಯಂತXಕರು ತಮc ಪತX ಸಂ`ೆ : ಔMಇ/ =ೈ /2022-23
ಔMಇ 34/=ೈ
O ಾಂಕ:
ಾಂಕ 14.03.2024ರ9:
ರ9: ಸ ಾ ರ ೆR ತM`ಾ ವರOಯನು% ಸ9: ಸೂಕ ಕXಮವನು% ೈ'ೊಳdಲು
ೋ ರು*ಾ ೆ.ೆ
65
ಸ ಾ ರದ ಆ1ೇಶ
ಆ1ೇಶ ಸಂ`ೆ :ಆಕುಕ
ಆಕುಕ 40 ಐಎಂಎಂ 2016, _ೆಂಗಳgರು O ಾಂಕ: ರ9: ಸದ
ಾಂಕ 28.01.2022ರ9:
ಪ ಷ 'ೆ 10 ಾಮ ಇನhGೆಕF[ಗಳನು%
ಇನhGೆಕF[ಗಳನು% ಗು 'ೆ ಆ]ಾರದ 8ೕ ೆ'ೆ 11 ಂಗಳ ಅವ+'ೆ
ೇ- ೊಳdಲು 15 ಷರತುಗಳ ೊ%ಳ'ೊಂಡಂ*ೆ ಆ1ೇಶವನು% Mೕಡ/ಾ0ತು. ಆದ ೆ,ೆ ಸದ ಪ ಷ ನ
ಅಧ iರು ಅಥ=ಾ Y7ಾZ[ ರವರು ಸ ಾ ರದ ಅ+ಸೂಚ ೆಯ9: ರುವ ಷರತು 04 ರಂ*ೆ ಔಷಧ
MಯಂತXಕರವ ಂದ =ೇತನ MಗOಪQ ೊಳd1ೇ 2ಾಗೂ ಕX.
ಕX ಸಂ.
ಸಂ 08 & 09 ರ9: ದ
-ೕಸ/ಾ ಯನು% ಸಹ Gಾ9ಸ1ೇ ಏ ಾಏI ತಮ'ೆ _ೇ ಾದ ೕ ಯ9: ಾಮ ಇನ7ೆEಕF[ಗಳನು%
ೇ- ೊಂಡು ಾಯ Mವ Bಸು 1ಾ& ೆ.ೆ ಪXಸುತ Y7ಾZ[
Y7ಾZ[ DV ಾಯ Mವ Bಸು ರುವ Aಾ||
Aಾ PÁæA
ಕುªÀ
ಕು iÁgï 7ೆ ರವರು ಸಹ ಸ ಾ ರದ ಅನುಮ ಇಲ:1ೆ ೇಮಕ'ೊಂಡು ಾಯ Mವ Bಸು 1ಾ& ೆಂದು
ಔಷದ MಯಂತXಕರು ತಮc ಪತX ಸಂ`ೆ ,: ಔMಇ/17/kೕಜ
ಔMಇ kೕಜ ೆ/2022-23,
ೆ O ಾಂಕ:24.06.2024ರ9:
ಾಂಕ ರ9:
ವರOಯನು% ಸ ಾ ರ ೆR ಸ9: ರು*ಾ ೆ.ೆ
ೋಂ1ಾCತ
ೋಂ1ಾCತ ಔಷಧ ತlರ ಪmF ತSಾ ೆ,ೆ Mವ ಹ@ೆ 2ಾಗೂ ೋಂ1ಾCಸಲEmFಲದ
: ವ Iಗಳ
ಔಷಧ ಸರಬ ಾಜು Mವ ಹ@ೆ <ಾಡುವ6ದನು% ತAೆಗಟುFವ6ದು ಾಜ ಾಮ ಪ ಷ ನ ಾಯ =ಾ0ದು&
ಇದನು% Mವ Bಸಲು ಪ ಷ ನ ಮಂಡ ಫಲ=ಾ0ರುತ1ೆ 2ಾಗೂ ಸ ಾ ರOಂದ 26.10.2016,
23.05.2017, 19.06.2017 2ಾಗೂ 02.09.2022 ಈ O ಾಂಕಗಳ9: ಹಲ=ಾರು ಅ+ ಾ ಗಳನು% ಸದ
ಪ ಷ ನ ಚು ಾವ@ೆ ಪXIXp ೈ'ೊಳdಲು ಚು ಾವ@ಾ ಅ+ ಾ ಗಳ ಾ%0 ೇ- ದ&ರೂ ಸಹ ಸದ
ಅ+ ಾ ಗ 'ೆ ಸಮಪ ಕ=ಾದ <ಾB ಒದ0 ಚು ಾವ@ೆ ನAೆಸುವ9: ಕ ಾ ಟಕ ಾಜ ಾಮ
ಪ ಷ ನ ಈ0ರುವ ಆಡ ತ ಮಂಡ ಯ ಸದಸ ರು ಸಂಪrಣ =ಾ0 ಫಲ ಾ0ರು*ಾ ೆ.ೆ ಆದ& ಂದ
ಸ ಾ ರವ6 ಸದ ಪ ಷ 'ೆ ಚು ಾವ@ೆಯನು% ನAೆ 2ೊಸ ಆಡ ತ ಮಂಡ ಯನು% ರsಸಲು
7ಾಧ =ಾ0ರುವ6Oಲ:.
ಕ ಾ ಟಕ ಾಜ ಾಮ ಪ ಷ ನ ಸದಸ ರುಗಳ , ಕ ಾ ಟಕ ಾಜ ಾಮ ವ ಷ ನ
Mಯ<ಾವ ಗಳನ%ಯ MಗOತ ಕತ ವ , ಮತು ಜ=ಾ_ಾ& ಗಳನು% ಉತಮ=ಾ0 2ಾಗೂ
ವ @ಾಮ ಾ Sಾ0 Mವ Bಸುವ9: ಫಲ ಾ0ದು& ಇವರ ಈ ನಡ*ೆCಂ1ಾ0 7ಾವ ಜMಕರ9: ಪ ಷ ನ
7ೇ=ೆಗಳ ಕು ತು 7ಾಕಷುF ಅಸ<ಾ]ಾನ 2ೊಂO,
2ೊಂO ಸಂ7ೆuಯ ಕು ತು 7ಾವ ಜMಕ ವಲಯದ9:
ಅನು<ಾ ಾಸEದ vಾವನ ಮೂಡಲು ಾರwಭೂತ ಾ0ರು*ಾ ೆ.ೆ ಆದ& ಂದ,
ಂದ ಾಮ ಾp& 1948 ರ
ಅ+Mಯಮ 19 ರ 8ೕ ೆ'ೆ ಕ ಾ ಟಕ ಸ ಾ ರOಂದ ರsಸ/ಾದ ಕ ಾ ಟಕ ಾಜ ಾಮ ಪ ಷ ನ
DqÀ½vÀ ಮಂಡ ಯ ಪXಸುತ ಸದಸ ರು ೈ'ೊಳ d ರುವ ಆಡ *ಾತcಕ ಾಯ ಚಟುವm ೆಗಳನು%
ಚು ಾವ@ೆ ಮು0ಯುವವ ೆ'ೆ ಸu0ತ'ೊ , ಆಡ *ಾತcಕ ದೃzFCಂದ ಕ ಾ ಟಕ ಾಜ ಾಮ
ವ ಷ ನ ಸುಗಮ ಾಯ
ಾಯ Mವ ಹ@ೆ'ಾ0 ವ ಷ 'ೆ ಚು ಾವ@ೆ ನAೆ 2ೊಸ ಸದಸ ರು
ೇಮಕ'ೊಳ dವವ ೆ'ೆ ಆಡ *ಾ+ ಾ ಯನು% ೇ-ಸುವಂ*ೆ ಸ ಾ ರ ೆR ಆಯುಕರು ವರOಯನು%
ಸ9: ರು*ಾ ೆ.ೆ
66
ಆಯುಕರು, ಆ2ಾರ ಸುರi*ೆ ಮತು ಔಷಧ ಆಡ ತ ಇವರ ಪX7ಾವ ೆಯನು% ಕೂಲಂಕುಷ=ಾ0
ಪ Wೕ9 ದ ಸ ಾ ರವ6 ಈ ೆಳಕಂಡಂ*ೆ ಆ1ೇW 1ೆ.
ಸ ಾ ರದ ಆ1ೇಶ ಸಂ`ೆ : ಆಕುಕ 44 ಐಎಂಎಂ 2025 ,
¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ: 05.04.2025 ,
ಪ67ಾವ ೆಯ9: ವ ರುವ ಅಂಶಗಳ B ೆ%/ೆಯ9: ಕ ಾ ಟಕ ಾಜ ಾಮ ಪ ಷ 'ೆ ಚು ಾವ@ೆ
ನAೆ 2ೊಸ ಆಡ ತ ಮಂಡ ಯನು% ಪ6ನ[ ರsಸುವವ ೆ'ೆ ಾಮ ಾp&, 1948 ರ ಅ+Mಯಮ 19
ರ 8ೕ ೆ'ೆ ಕ ಾ ಟಕ ಸ ಾ ರವ6 ರsಸ/ಾ0ದ& ವ6ಸುತ ಕ ಾ ಟಕ ಾಜ ಾಮ ಪ ಷ ನ ಆಡ ತ
ಮಂಡ ಯನು% ಆಡ *ಾತcಕ 2ಾಗೂ 7ಾವ ಜMಕ BತದೃzFCಂದ ತiಣOಂದ/ೇ {ಾ 'ೆ ಬರುವಂ*ೆ
ರದು&'ೊ ಆ1ೇW 1ೆ.
ಮುಂದುವ ೆದು, ಆಡ *ಾತcಕ 2ಾಗೂ 7ಾವ ಜMಕ BತದೃzFCಂದ ಕ ಾ ಟಕ ಾಜ ಾಮ
ವ ಷ ನ ಸುಗಮ ಾಯ Mವ ಹ@ೆ'ಾ0 ಆಯುಕರು, ಆ2ಾರ ಸುರi*ೆ ಮತು ಔಷಧ ಆಡ ತ ಇವರನು%
ಆಡ *ಾ+ ಾ ಯ ಾ%0 ತiಣOಂದ {ಾ 'ೆ ಬರುವಂ*ೆ 2ಾಗೂ ಮುಂOನ ಆ1ೇಶದವ ೆ'ೆ ೇ-
ಆ1ೇW 1ೆ.
ಕ ಾ ಟಕ ಾಜ Gಾಲರ ಆ|ಾನು7ಾರ
ಮತು ಅವರ 2ೆಸ ನ9:
Sd/-
(WXೕಪ }. ೆ)
ಸ ಾ ರದ ಅ+ೕನ ಾಯ ದW
ಆ ೋಗ ಮತು ಕುಟುಂಬ ಕ/ಾ ಣ ಇ/ಾ`ೆ
(vಾ=ೈವ ಮತು ಸಮನ~ಯ)."
(Emphasis added)
The aforesaid order was issued by the Under Secretary, Department
of Health and Family Welfare, appointing the Commissioner as the
Administrator of the Council. The order also records the reasons
which necessitated the dissolution of the Council. It reveals that,
67
the State Government had received several complaints alleging
maladministration and financial mismanagement in the affairs of
the Council. Pursuant to an investigation, a detailed report was
submitted disclosing, that the Council had illegally invested its
funds without obtaining the requisite approval of the Government.
The report further records instances of abuse of power by the
Registrar and the members of the Council. The order also notes that
the Council had failed to comply with the statutory requirements
relating to financial audits. It further records violation of Section 28
of the Act, inasmuch as the Council had failed to furnish to the
State Government copies of the minutes of its meetings, the
minutes of the Executive Committee, and abstracts of its accounts,
as mandated under the Act. Therefore, the decision to dissolve the
Council and appoint an Administrator was taken in public interest to
restore transparency, accountability and proper administration in
the functioning of the Council.
22. It is trite law that, decisions taken in public interest to
ensure transparency, accountability and good governance prevail
over the individual interests of members of elected or nominated
68
statutory bodies. Once the State Government, takes action to
safeguard the proper administration of a public institution, the
individual interest of its members in continuing in office must
necessarily yield to the larger public interest. Therefore, having
regard to the overwhelming public interest involved, the
Government Order dated 05-04-2025 appointing an Administrator
for the Council does not warrant interference at the hands of this
Court and does not deserve to be set aside.
23. For the aforesaid reasons, the following:
ORDER
i. Writ Petition No.24000 of 2023 is allowed in part.
ii. The notification dated 03-10-2023, issued for election to
SPONSORED
the Council, stands sustained.
iii. Mandamus issues, to respondent No.2 – Returning Officer
to consider the representations dated 10-10-2023,
13-10-2023 and 21-10-2023, at Annexures – K, J and N of
Writ Petition No.24000 of 2023 respectively, within two
weeks from the date of receipt of a copy of this order.
69
iv. Writ Petition No.7473 of 2025 is allowed.
v. The notification dated 28-02-2025 at Annexure – B of Writ
Petition No.7473 of 2025, issued for nomination of
members to the Council, stands quashed. Consequently,
the paper publication dated 01-03-2025 at Annexure – A of
Writ Petition No.7473 of 2025, also stands quashed.
vi. It is open to the respondent-State to issue a fresh
notification for nominations in tune with law, bearing in
mind the observations made in the course of the order.
vii. Writ Petition No.12522 of 2025 stands dismissed.
Pending applications if any, also stand disposed as a
consequence.
Sd/-
(M.NAGAPRASANNA)
JUDGE
Bkp/CT:BR
