Renji Thomas
Asked September 27, 2016

Writ against Government Notification

  • 1 Answer
  • 840 Views

Recently one notification has come from Department of Agriculture, Government of Kerala that few Agricultural Chemicals and fertilisers can be sold by dealers only with the prescription from Agricultural Officer. Qualification for an Agricultural Officer is Bachelors Degree in Agriculture. There are lot of Agricultural Graduates in kerala who are working in Agricultural Universities, Soil Conservation department, Vegetable and Fruit Promotion Council, Banks and other Private companies. They all have the qualification which is equivalent or may be above Agricultural Graduates. BSc Agriculture is a four year graduate Course approved by Government of India as Professional course. We request the legal opinion whether this is a case of Equality under Article 14 of Indian Constitution or any other act . Also we would like to know the possibility of winning the case if we file a writ petition before High Court for equality to give prescription for chemicals mentioned in the government order.

Answer 1

Answered by Sammanika Rawat, Lawfarm Researcher:

Thank you so much for writing to us. As per our research, the notification is in accordance with the Central Government's notification that any individual who wishes to an insecticide/ pesticide shop should hold possess a degree either in agricultural sciences, biochemistry, biotechnology, life sciences or B.Sc chemistry, botany or zoology. Since we are a bit confused with what exactly are you looking for, we tried to break down your query.

1) Are you willing to challenge the notification from the Agriculture Department that certain items are to be sold only after prior prescription from the Agricultural officer; i.e. are you planning to challenge the State Government's decision to lay down the conditions only for certain type of chemicals? If yes, then you can challenge the same if in your knowledge similar kinds of chemicals are allowed and the government has put arbitrary restrictions only on certain chemicals, under the mandatory prescription list. However, you must note that the State (Government) has the right to regulate trade (within Article 19 of the Constitution) and the State can justify its decision if an 'entire class' of chemicals are being regulated and not just one particular company/brand's product.

Since a regulation is not the same as a ban, please note that the government has not banned any chemical. This is a 'policy decision' taken to regulate the trade in chemicals. It is very well possible that there might be a nexus between the state's aim and the method adopted. Challenging such a decision can only be successful if the government has gone beyond its power to 'regulate' the trade. e.g. If there is a statutory law which does not allow such restrictions and it does not permit the state to introduce such restrictions in the form of rules/regulations/order. Though there are rare chances of having such a statutory norm because most of the parent legislation leave the rule making powers to the executive which in turn uses such power in the form of regulations and notifications such as this one. 

2) In case you are willing to challenge the qualifications for the AO which have been laid down, then we regret to say that it cannot be challenged. The reason being that the state has its own discretion to lay down the qualification. However, if the recruitment under the notified qualifications are done in a non-transparent/arbitrary manner then such an act of the state can be challenged under Article 14 of the Indian Constitution. For this, you may have to show that despite the qualification criteria mentioned by the State, non-agricultural graduates have been recruited by the State for the particular designation or only certain kind of agricultural graduates have been recruited by the state without any fair recruitment process.

3) In India, it is not possible to predetermine the outcome of a Writ-Petition especially without complete perusal of all the facts.

 

Hope we were able to help you. Feel free to write back.

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