Kishor Kumar & Ors vs Pradeep Shukla & Ors

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