Madhya Pradesh High Court
Brijesh Shukla vs The State Of Madhya Pradesh Judgement ... on 6 February, 2014
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Writ Petition No.2015/2014
06.02.2014
Shri K.C.Ghildiyal, learned counsel for petitioners.
Shri S.S.Bisen, learned Government Advocate for State
of Madhya Pradesh on advance notice.
Heard on admission.
Communication dated 30.11.2013 by the Chief Medical &
Health Officer, Rewa; whereby, the petitioners have been
informed as to reasons why they are not eligible for being
appointed as Pharmacist (contractual) has been assailed. The
petitioners also seek quashment of select list dated 31.07.2013
and for direction to consider the candidature of the petitioners
for appointment as Pharmacist (contractual).
Relevant facts in nutshell are that the applications were
invited on 26.12.2012 for appointment as Pharmacists, Data
Entry Operators and Support Staff on contract basis in National
Rural Health Mission from the persons having requisite
qualification. The last date for submitting the applications was
15.01.2013.
The petitioners though Diploma/Degree in Pharmacy
were not registered with the Madhya Pradesh Pharmacy
Council prior to 15.01.2013 were not considered which led the
petitioners to challenge the select list dated 31.07.2013, vide
writ petition No.13858/2013 on the ground that the registration
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with the Madhya Pradesh Pharmacy Council was not prescribed
as necessary qualification in the advertisement and by
clarification it was provided that the incumbent shall produce
registration at the time of signing the agreement as such the
rejection of their candidature on the ground that they were not
having registration as on 15.01.2013 was per se illegal.
The writ petition was disposed of on 16.09.2013 in the
following terms :
"Having heard the learned counsel for the parties it
is observed that the question as to what are the
requisite, necessary qualifications for which marks
had been given to each individual candidate for
possessing the same, whether or not candidate
possesses the qualification as on the cut off date
prescribed, whether registration with the Pharmacy
Council was an essential qualification or not and
whether candidates have wrongly been awarded
extra marks for diploma in Pharmacy, Degree in B.
Pharma and M. Pharma, are all questions which are
required to be looked into by the appointing and
selecting authority concerned. It is also observed
that this court in W.P. No. 12417/2013 by order
dated 31.07.2013 directed the authorities concerned
to look into the grievance of the petitioners therein
and pass a reasoned order and if necessary, also
give an opportunity to those candidates who are
adversely effected and the exercise is yet to be
undertaken by the authorities.
In the circumstances and in the line of the
order passed in W.P. No. 12417/13, the present
petition is also disposed of with similar direction to
the effect that in case the petitioners as well as the
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respondents no. 6 to 11, if so advised, file a
representation before the authority concerned within 15 days from today bringing to his notice their grievance, the authority concerned shall consider and decide the same in accordance with law by passing a reasoned order and if so required, shall also give an opportunity to those candidates whose name is required to be removed from the select list in exercise of the aforesaid process undertaken by the respondents/authorities.
Let the aforesaid exercise be completed within six weeks.
It goes without saying that appointment if any, made, pursuant to the impugned order and select list dated 31.07.2013 and 14.08.2013 would be subject to the ultimate decision taken by the authorities."
It was in pursuant to the direction in writ petition No.13858/2013, the claim of the petitioners has been considered and since the petitioners were not registered with M.P. Pharmacy Council as on 15.1.2013, the last date for accepting the application they have been informed vide impugned communication.
The question is whether in the given facts petitioners' non consideration for appointment warrants any interference.
The petitioners does not dispute that the cut off date for considering the eligibility criteria was 15.1.2013. This aspect is also in consonance with the principle of law laid down in Shankar K. Mandal v. State of Bihar: (2003) 9 SCC 519 wherein it has been:
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"5. ... The principles culled out from the decisions of this Court (See Ashok Kumar Sharma and ors.v. Chander Shekhar and Anr. (1997 (4) SCC 18, Bhupinderpal Singh v. State of Punjab (2000(5) SCC 262 and Jasbir Rani and ors. v. State of Punjab and Anr. (2002 (1) SCC 124) are as follows:
(1) The cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules. (2) If there is no cut off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications. (3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority."
It is also a trite proposition that the determination of eligibility, if mistaken, may be corrected [see : State of Punjab v. Swaran Kaur 2007 (9) SCC 192].
The principle of law is settled that it is within the domain of the appointing authority to lay down requisite qualifications for recruitment to Government Service. [See The Commissioner, Corporation of Madras v. Madras Corporation Teachers Mandram (AIR 1997 SC 2131]. In The Commissioner, Corporation of Madras (supra) it has been held :
"4. ... It is well settled legal position that it is the legal or executive policy of the Government to create a post or to prescribe the qualifications for 5 W.P.2015/2014 the post. The Court or Tribunal is devoid of power to give such direction. ... "
Furthermore, Section 42 of the Pharmacy Act provides for that:
"42. On or after such date as the State Government may by notification in the Official Gazette appoint in this behalf, no person other than a registered pharmacist shall compound, prepare, mix, or dispense any medicine on the prescription of a medical practitioner.
Provided that this sub- section shall not apply to the dispensing by a medical practitioner of medicine for his own patients, or with the general or special sanction of the State Government, for the patients of another medical practitioner.
Provided further that where no such date is appointed by the Government of a State, this sub- section shall take effect in that State on the expiry of a period of 4[ eight years] from the commencement of the Pharmacy (Amendment) Act, 1976."
Thus, it is only a registered Pharmacist who can compound, prepare, mix or dispense any medicine on the prescription of a medical practitioner.
The advertisement, in the considered opinion of this Court has to be interpreted and understood in the context of the stipulations contained in the Pharmacy Act, 1948 and the Rules framed thereunder.
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In the case at hand as apparent from the advertisement that an incumbent must have diploma/degree in Pharmacy (vgZdkjh ijh{kk & QkesZlh fMIyksek@fMxzh ijh{kk). The appointment since is on the post of pharmacist in National Rural Health Mission, it can safely be presumed that on appointment he has to compound, prepare, mix or dispense any medicine on the prescription of a medical practitioner, which as per statute can only be by a registered pharmacist. Such a qualification, i.e. having a registration is implicit in the qualification desired vide advertisement, learned counsel for the petitioner though has relied on a clause in the advertisement i.e. **QkekZflLV ds in ij e/;izns'k QkesZlh dkmafly esa iath;u dk mYys[k foKkiu esa ugh Fkk vr% lafonk fu;qfDr ds vkns'k esa ;g mYys[k fd;k tk;s fd vH;FkhZ vuqca/k gLrk{kj djus ds iwoZ iath;u dk vfHkys[k izLrqr djsaA**
- to substantiate the submissions that the registration after cut off date till the date when agreement was to be entered. Close reading of the clause relied upon by the learned counsel however does not support the contention. The clause only suggest that since the stipulation about the registration with pharmacy council was not mentioned in the advertisement, the same must be ascertained at the time when appointment. Thus there is no extension of cut off date to acquire a registration.
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In view whereof, the decision arrived at by the respondents that since on the cut off date i.e. 15.1.2013, the petitioners were not registered as pharmacist, were not eligible cannot be faulted with.
Consequently, the petition, being not worth admitting, is dismissed in limine. No costs.
(SANJAY YADAV) (JUDGE) anand