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the appointment of Pharmacists in the State of Uttar Pradesh.= The Special Leave Petitions are, accordingly, dismissed, but without any order as to costs. 14. All 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).

Jim Depuy, pharmacist checking in order

Jim Depuy, pharmacist checking in order (Photo credit: safoocat)

REPORTABL

E

 

 

IN THE SUPREME COURT OF INDIA

 

CIVIL APPELLATE JURISDICTION

 

SPECIAL LEAVE PETITION (CIVIL) NO.22590 OF 2011

 

 

KISHOR KUMAR & ORS. … PETITIONERS

 

Vs.

 

PRADEEP SHUKLA & ORS. … RESPONDENTS

 

 

WITH

 

S.L.P.(C) NOS.27086 OF 2011 AND 4130 OF 2012

 

 

J U D G M E N T

 

 

ALTAMAS KABIR, J.

 
1. These three Special Leave Petitions are

 

directed against the judgment and order dated
2

 
12.7.2011, 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.

 

 

2. By 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.
3

 
3. According 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 diplomas

 

earlier. 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
4

 
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.

 

 

4. Questioning 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
5

 
1980 Rules, by specifying the vacancies year-wise,

 

and, thereafter, appointing the Writ Petitioners to

 

the post of Pharmacist after providing for age

 

relaxation.

 

 

5. According 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
6

 
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.

 

 

6. The 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
7

 
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 be quashed.

 

 

7. Some 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
8

 
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.

 

 

8. Upholding 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
9

 
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.

 

 

9. After 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.
10

 
10. It 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.

 

 

11. The 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.

 

 

12. We 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
11

 
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.

 

 

13. The Special Leave Petitions are, accordingly,

 

dismissed, but without any order as to costs.

 

 

14. All 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).

 

 

………………………………………………………J.

(ALTAMAS KABIR)

 

 

………………………………………………………J.

(J. CHELAMESWAR)

New Delhi

Dated:29.2.2012

 

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