Kishor Kumar & Ors.
Vs. Pradeep Shukla & Ors.
Petition (Civil) No.22590 of 2011]
[S.L.P.(C) Nos.27086 of
2011 and 4130 of 2012]
J U D G M E N T
ALTAMAS KABIR, J.
three Special Leave Petitions are directed against the judgment and order dated
212.7.2011, passed by the Lucknow Bench of the Allahabad High Court in C.P. No.2209
of 2009, affirming the order of the learned Single Judge which had been upheld
by the Division Bench of the High Court regarding the appointment of
Pharmacists in the State of Uttar Pradesh. So as to understand how the matter reached
the High Court, it is necessary to set out a few facts which led to the filing
of the Writ Petitions.
way of an advertisement dated 12.11.2007, 766 vacancies were advertised for being
filled up by diploma holders in Pharmacy. The advertisement provided that the recruitment
could be done as per the U.P. Procedure for Direct Recruitment of Group `C' Posts
(Outside the Purview of Public Service Commission) Rules, 2000. The said advertisement
led to controversies as to how the appointments were to be filled up.
to the Respondents, the interpretation of Rule 15(2) of the U.P. Pharmacists Service
Rules, 1980, hereinafter referred to as the "1980 Rules", required the
diploma holders to be appointed against the vacancies which became available in
each recruitment year, by first appointing those Pharmacists who had obtained their
It was their claim
that appointment to the post of Pharmacist could be made batch-wise from each year
and that the vacancies which had accrued were required to be filled up by
giving appointment to those Pharmacists according to the dates on which they
obtained their diplomas, irrespective of their merit.
According to the Respondents,
on an interpretation of Rule 15(2) of the 1980 Rules by the State Government, they
were entitled to be selected and appointed first in respect of the vacancies advertised,
as they belonged to previous batches and had been denied appointment by the State
Government earlier on the plea that notwithstanding their merit being superior to
some of the diploma holders, those who had obtained diplomas prior to the Respondents,
had to be adjusted against the vacancies first, irrespective of their merit. It
was submitted that those diploma holders who had obtained their diplomas before
the Respondents, should be adjusted first against the vacancies available, irrespective
of their merit, vis-`-vis the diploma holders of subsequent batches and the said
practice was continued till 2002.
the interpretation of Rule 15(2) of the 1980 Rules, several Writ Petitions were
filed before the Lucknow Bench of the Allahabad High Court for quashing the advertisement
dated 12.11.2007 and for a writ in the nature of Mandamus to command the concerned
authorities to effect recruitment to the post of Pharmacist strictly in
accordance with Rules 14 and 15 of the 1980 Rules, by specifying the vacancies year-wise,
and, thereafter, appointing the Writ Petitioners to the post of Pharmacist after
providing for age relaxation.
to the Respondents, it was not open to the State Government to interpret the Rules
differently to the prejudice of the Respondents' right to appointment, though similarly
situated persons had been given the benefit of the said Rules under which the Respondents
were denied appointment when their turn came to be appointed.
The order passed by
the learned Single Judge, while disposing of various Writ Petitions, was
challenged by the Respondents in several Writ Appeals before the Division Bench
of the Lucknow Bench of the Allahabad High Court, which after recognizing the anomalous
position which had arisen, disposed of the various Appeals with a direction that
the case of the Appellants would be considered in accordance with the
pre-existing practice by considering their appointment on the basis of their merit,
but that the said process would be available only for the Appellants.
It was directed that they
would be accommodated if they were otherwise found eligible and the remaining vacancies
would be filled up by following Rule 15(2) of the 1980 Rules strictly.
said decision of the Division Bench came to be challenged before this Court by the
State of U.P. by way of Special Leave Petition (Civil) Nos.20558 of 2009, which
was heard along with several other Special Leave Petitions, where the issue was
the same. During the course of hearing of the Special Leave Petitions, the main
question which fell for decision was whether the Rules could be applied
differently at different points of time, in order to deny the benefit of
appointment to the same group of people at such different points of time.
It was also indicated
by the Division Bench that the State Government had acted arbitrarily and unfairly
in not applying the same set of Rules when the turn of the Respondents came to
be appointed on the basis thereof on the ground that they have become over-age.
It had been submitted that such arbitrariness could not be allowed to continue and
the decision of the State and its authorities not to give batch-wise promotion to
those Pharmacists, who had obtained their diplomas prior to 1988, was liable to
of the Petitioners moved the High Court for implementing the order dated
4.5.2009 passed by the Division Bench of the said Court. Inasmuch as, the applications
were not being disposed of, one Sunil Kumar Rai and others moved Contempt Petition
No.2209 of 2009 before the High Court alleging willful contempt on the part of the
State and its authorities in not implementing the directions given by the
Division Bench on 4.5.2009. During the hearing of the Contempt Petition, it was
also pointed out that the said order of the Division Bench of the High Court had
been challenged in Special Leave Petition (Civil) No.22665 of 2009, and that while
issuing notice, this Court did not stay the operation of the judgment and order
passed by the Division Bench on 4.5.2009.
the decision of the Division Bench of the High Court, this Court did not interfere
with the same and dismissed the Special Leave Petitions vide judgment dated
3.8.2010 titled State of U.P. & Anr. Vs. Santosh Kumar Mishra & Ors. reported
in (2010) 9 SCC 52, and directed that the decision taken by the State Government
to accommodate the diploma holders in batches against their respective years, could
be discontinued at a later stage, but not to the disadvantage to those who had been
denied the opportunity of being appointed by virtue of the same Rules.
This Court observed that
the same decision which was taken to deprive the private Respondents from being
appointed, could not be discarded once again to their disadvantage to prevent them
from being appointed, introducing the concept of merit selection at a later
stage. It was further directed that the subsequent policy could be introduced after
the private Respondents and those similarly situated persons have been accommodated.
the aforesaid judgment of this Court, a select list was prepared on 14.2.2011, which
was again challenged by way of several Writ Petitions, of which the lead matter
was Writ Petition No.1186 of 2011 filed by Pawan Kumar and others, against the
State of U.P. and others. On 4.3.2011, the High Court stayed the select list prepared
on 14.2.2011 and directed not to make any appointments therefrom. At the same, time,
the contempt proceedings were also take up for consideration and on 12.7.2011, in
the said proceedings the High Court directed the official respondents to prepare
a fresh select list.
is in such background that these Special Leave Petitions came to be filed by candidates
who had not been selected for appointment on the ground that despite having
better merit, they had not been selected for filling up the 766 vacancies.
submissions which had been previously urged when the earlier batch of Special Leave
Petitions were disposed of, were reiterated during the hearing of these Special
Leave Petitions. An attempt was made to re-open the issue by urging that the
Petitioners have been over-looked, despite their better merit.
are unable to accept the said submissions on account of the fact that the matter
has already been decided and it has been directed by this Court, following the
decision of the Division Bench of the High Court, that the candidates could be appointed
against the vacancies in order of their inter-se seniority as per the vacancies
available in each year. That being so and having regard to the earlier decision
of this Court referred to hereinabove, we see no reason to interfere with the order
of the Division Bench of the High Court.
Special Leave Petitions are, accordingly, dismissed, but without any order as
the pending applications shall stand disposed of by virtue of this judgment. As
we have observed hereinabove, all candidates, who were similarly situated as the
original petitioners, would be entitled to the benefit of the judgment delivered
in State of U.P. & Anr. Vs. Santosh Kumar Mishra & Ors. (supra).