Allahabad High Court
Yogesh Kumar Sharma & 33 Ors. vs State Of U.P. Through Prin. Secy. Deptt. ... on 12 April, 2017
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Case :- SERVICE SINGLE No. - 3350 of 2014 Petitioner :- Yogesh Kumar Sharma & 33 Ors. Respondent :- State Of U.P. Through Prin. Secy. Deptt. Of Medical Edu. Lko Counsel for Petitioners :- Vidhu Bhushan Kalia, Ankit Pande Counsel for Respondents :- C.S.C., Dr L P Mishra, Prafulla Tiwari With: Service Single Nos.-- 1753 of 2007, 8735 of 2010, 2904 of 2011, 4225 of 2011, 8919 of 2011, 291 of 2014, 2591 of 2014, 3226 of 2014, 3228 of 2014, 3240 of 2014, 3245 of 2014, 3256 of 2014, 3260 of 2014, 3275 of 2014, 3279 of 2014, 3280 of 2014, 3281 of 2014, 3282 of 2014, 3283 of 2014, 3286 of 2014, 3288 of 2014, 3289 of 2014, 3293 of 2014, 3294 of 2014, 3295 of 2014, 3299 of 2014, 3301 of 2014, 3302 of 2014, 3307 of 2014, 3309 of 2014, 3315 of 2014, 3316 of 2014, 3322 of 2014, 3325 of 2014, 3328 of 2014, 3330 of 2014, 3331 of 2014, 3332 of 2014, 3338 of 2014, 3339 of 2014, 3342 of 2014, 3347 of 2014, 3351 of 2014, 3360 of 2014, 3361 of 2014, 3362 of 2014, 3363 of 2014, 3364 of 2014, 3365 of 2014, 3366 of 2014, 3367 of 2014, 3368 of 2014, 3369 of 2014, 3370 of 2014, 3395 of 2014, 3396 of 2014, 3397 of 2014, 3408 of 2014, 3410 of 2014, 3412 of 2014, 3413 of 2014, 3422 of 2014, 3433 of 2014, 3445 of 2014, 3447 of 2014, 3449 of 2014, 3454 of 2014, 3458 of 2014, 3481 of 2014, 3484 of 2014, 3494 of 2014, 3496 of 2014, 3500 of 2014, 3503 of 2014, 3507 of 2014, 3513 of 2014, 3531 of 2014, 3539 of 2014, 3541 of 2014, 3549 of 2014, 3553 of 2014, 3555 of 2014, 3572 of 2014, 3587 of 2014, 3604 of 2014, 3615 of 2014, 3620 of 2014, 3657 of 2014, 3687 of 2014, 3708 of 2014, 3732 of 2014, 3886 of 2014, 3887 of 2014, 3971 of 2014, 4001 of 2014, 4177 of 2014, 4435 of 2014, 4851 of 2014, 5054 of 2014, 5198 of 2014, 595 of 2015, 3817 of 2015, 3960 of 2015, 6583 of 2015, and 7145 of 2015. ______ Hon'ble Pradeep Kumar Singh Baghel,J.
This batch of the cases relates to recruitment of the Pharmacists (Ayurvedic). All the petitions involve similar question of law. Therefore, they are disposed of by this common order. For the sake of convenience and narration of facts, Service Single No. 3350 of 2014 is taken as a lead petition.
The present batch of petitions has been filed by the petitioners, who did their Diploma in Ayurvedic Pharmacy. They are seeking a relief for issuance of a writ of certiorari quashing the select list dated 03rd July, 2014 for appointment on the posts of Ayurvedic Pharmacist.
The case has a chequered history. Hence, the facts of the case need a little elaboration.
The petitioners claim that they did their diploma between 1986 and 1993 and got themselves registered with the Board of Indian Medicines, Uttar Pradesh between the year 1985 and 1994. The appointments on the posts of Pharmacists (Ayurvedic) and Pharmacists (Unani) are governed under the Uttar Pradesh Ayurvedic and Unani Pharmacists Service Rules, 19911. The Uttar Pradesh Subordinate Services Selection Commission2 was a recruiting agency for the said post as the post in question is a Class-III post. It is stated that the Subordinate Commission was dissolved in the year 1997 and no selection was made since 1991 till the year 2003. Some backlog vacancies of reserved quota were advertised in the year 2003, however, no selection was made for the general category candidates. It is further stated that although an advertisement was issued in the year 2000 for 500 posts of Pharmacists (Ayurvedic) and Pharmacists (Unani) yet no appointment could be made.
There is another set of rules, known as the Uttar Pradesh Pharmacists Service Rules, 19803, which govern the recruitment of the Pharmacists (Allopathic). A long drawn litigation in their respect was set at rest by the judgment of the Supreme Court in the said case. The judgments of this Court and the Supreme Court in the matter of the Pharmacists (Allopathic) have a material bearing on the dispute in hand, hence the facts of the litigation in the matter of Pharmacists in Allopathic need to be stated in a detail.
A dispute arose in respect of interpretation of Rule 15(2) of the Rules, 1980. The said rule reads as under:
"15. Procedure for Direct Recruitment.--(1) *** (2) The Selection Committee shall prepare a list of candidates in order of merit, as disclosed by marks obtained by them in the diploma examination. If two or more candidates obtain equal marks, the Selection Committee shall arrange their names in order of merit on the basis of their general suitability for the post. The number of the names in the list shall be larger (but not larger by more than 25 per cent) than the number of the vacancies. The list so prepared shall hold good for one year only."
Rule 15(2) of the Rules, 1980 was interpreted by the State Government in a manner that all diploma holders are accommodated/appointed in the vacancies, which become available in each recruitment year, by first accommodating the Pharmacists, who have obtained diploma prior to the Pharmacists, who have obtained diploma later on. Thus, it was a settled practice that the appointments of Pharmacists were to be made on the basis of their batches i.e. first who have cleared diploma course in the earlier batches irrespective of their merit.
On 12th November, 2007 an advertisement was issued inviting applications for filing up 766 vacant posts of Pharmacists in Allopathic. The advertisement provided that the recruitment shall be made in accordance with the Uttar Pradesh Procedure for Direct Recruitment of Group 'C' Posts (Outside the Purview of Public Service Commission) Rules, 20024, as amended by the Uttar Pradesh Procedure for Direct Recruitment of Group 'C' Posts (Outside the Purview of Public Service Commission) (First Amendment) Rules, 20035 and the relevant Service Rules. In the said selection, the State by giving literal meaning of Rule 15(2) of the Rules, 1980 adhered to the selection only on the basis of merit ignoring the earlier practice of batchwise appointment.
The said selection was challenged by the candidates of the earlier batch on the ground that they belonged to the previous batch and earlier they were denied appointment by the State Government ignoring their merits on the plea that as per the earlier practice, the candidates of their previous batch were appointed. Hence, they were deprived of their appointment on the basis of previous practice although they were higher in merit. Having regard to the previous practice, the petitioners therein did not challenge the said selection and they were under the impression that they will get appointment in the subsequent year on the basis of their batch. However, when the State Government departed from the said practice and prepared the select list on the basis of the merit and they could not be selected even though, as stated above, they belong to previous batch, they challenged the said selection on the ground that they cannot be treated unequally or discriminated again and it is not open to the State Government to take a different stand even in the matter of interpretation of Rules, which affected them adversely though similarly situated persons had been given the benefit otherwise throughout right from the very beginning.
The learned Single Judge vide judgment and order dated 23rd May, 2008 rejected their claim for appointment on the basis of past practice but they were given the benefit of relaxation in age to the petitioners. Further, a direction was issued by the learned Single Judge that the select list shall be prepared in accordance with Rule 15(2) of the Rules, 1980 and the selection shall be made strictly on the criteria of merit irrespective of the batch of obtaining diploma.
The said judgment and order of the learned Single Judge was challenged by the candidates in a batch of special appeals, led by Special Appeal No. 377 of 2008 (Prem Chandra and others v. State of U.P. and others). A Division Bench of this Court at Lucknow Bench vide its judgment dated 04th May, 2009 disposed of the special appeals modifying the judgment of the learned Single Judge and found that the petitioners-appellants therein have been discriminated. The Division Bench held that looking to the past practice, the appellants were excluded from consideration of their appointment at the relevant time earlier by interpreting the rule to their disadvantage and they were made to believe that likewise their candidature shall be considered later on and in this respect the State Government had issued various circulars and instructions, but when their turn came for getting employment, they are again being put out of consideration by interpreting the rule in a different manner, thus injustice has been caused to them. The Division Bench noticing the peculiar and piquant situation issued a direction that in 766 vacancies the appellants, who were much less in number, can also be considered for appointment, leaving sizeable vacancies for the rest of the candidates.
The judgment of the Division Bench of this Court was challenged by the State Government in a batch of special leave petitions, led by Special Leave Petition (C) No. 20558 of 2009, State of U.P. and another v. Santosh Kumar Mishra and another. The Supreme Court on 03rd August, 2010 affirmed the judgment of the Division Bench and dismissed the special leave petitions. The Supreme Court observed that previously the State Government took the decision to accommodate the diploma holders in batches against their respective years and this practice was discontinued at a later stage, but it was to the disadvantage of those who have been deprived of the opportunity of being appointed earlier. Thus, now once again the rule cannot be interpreted to their disadvantage to prevent them from being appointed by introducing the concept of merit selection. The Supreme Court permitted the State Government to apply the principle of merit after the left out candidates of the previous batch and those similarly situated persons are accommodated.
In the meantime, the Ayurvedic Pharmacists also filed writ petitions claiming that they are also entitled for the benefit of the earlier practice adopted by the State Government to offer appointment yearwise and batchwise as in the case of diploma holders of Pharmacy in Allopathic in terms of Rules 14 & 15 of the Rules, 1980, as interpreted in Special Appeal No. 377 of 2008 (Prem Chandra and others v. State of U.P. and others) vide judgment dated 04th May, 2009. The said writ petitions, being Writ Petition No. 1962 (SS) of 2007, Satish Chandra Gupta and another v. State of U.P. and another, along with four other connected writ petitions, being Writ Petition No. 4936 (SS) of 2007 (Krishna Kumar v. State of U.P. and another), Writ Petition No. 5149 (SS) of 2007 (Ramesh Singh and others v. State of U.P. and another), Writ Petition No. 4953 (SS) of 2007 (Virendra Singh and another v. State of U.P. and another) and Writ Petition No. 1957 (SS) of 2000 (Ashok Kumar Pandey and others v. State of U.P. and another), were disposed of by the learned Single Judge of this Court at Lucknow Bench on 21st July, 2009 with a direction that the State shall extend the benefits of the judgment and order dated 04th May, 2009 passed in Special Appeal No. 377 of 2008 (supra) to the petitioners of the said writ petitions also.
In compliance with the directions of this Court issued in Writ Petition No. 1962 (SS) of 2007 (supra) and its companion writ petitions, being Writ Petition No. 1957 (SS) of 2000 and others, the State Government issued an order dated 23rd May, 2014 in respect of the Pharmacists in Ayurvedic and Unani. The said Government order clearly stipulated that a fresh select list be prepared having regard to the previous practice of batchwise selection strictly in compliance with the direction of the High Court, Lucknow Bench dated 21st July, 2009 passed in the said writ petitions. A copy of the Government Order dated 23rd May, 2014 is on the record.
Pursuant to the Government Order dated 23rd May, 2014 an advertisement was issued in the same month i.e. May, 2014 by inviting applications against 650 posts of Pharmacists in Ayurvedic and Unani in Government Hospitals of Uttar Pradesh.
The petitioners in the present batch of writ petitions claim that in pursuance of the said advertisement they had applied, the selection on the post of Pharmacists (Ayurvedic) was made and the impugned select list has been prepared. The said select list has been challenged in this batch of writ petitions amongst other grounds that:
(a) the select list has been prepared contrary to the provisions of Rule 15 (3) of the Amending Rules, 2013 as it is not based on earlier practice of yearwise and batchwise, which has been incorporated in the Amending Rules, 2013;
(b) the incumbents of the earlier batches have been left over and the names of the incumbents of the subsequent batches have been included therein in an arbitrary manner; and,
(c) the select list has been prepared in a haphazard manner, in which the names of certain incumbents have been included twice or thrice and further the year of registration and respective batch years have been shown to be the same as is exhibited from a perusal of Serial Nos. 304, 305 and 37 to 41 respectively.
A counter affidavit has been filed on behalf of the State-respondents sworn by the Director, Ayurvedic, U.P., Lucknow. The stand taken by the State Government is that the Pharmacists (Allopath) and Pharmacists (Ayurvedic & Unani) are governed under two separate set of rules viz. (i) the Rules, 1980 (for Allopath Pharmacists), and (ii) the Rules, 1991 (for Ayurvedic and Unani Pharmacists). As per the scheme of the Rules, 1980, the selection is made on the basis of batchwise seniority in terms of Rule 15 thereof, whereas under the scheme of the Rules, 1991 the appointments on the posts of Pharmacists in Ayurvedic and Unani are made on the basis of the marks obtained in interview. Thus, there is a vast qualitative inherent distinction between two sets of Rules applicable to Pharmacists in Allopath and Pharmacists in Ayurvedic & Unani respectively.
It is stated that the petitioners are seeking parity with the judgments and orders of the Division Bench of this Court in Special Appeal No. 377 of 2008 (supra) as well as of the Supreme Court in Santosh Kumar Mishra and another (supra) [Special Lave Petition (C) No. 20558 of 2009] passed in the matter of Pharmacists (Allopath). It is true that the learned Single Judge of this Court in Writ Petition No. 1957 (SS) of 2000, the companion writ petition of Writ Petition No. 1962 (SS) of 2007, vide its judgment and order dated 21st July, 2009, issued a direction to the State Government to extend the benefit of the judgment of the Division Bench in Special Appeal No. 377 of 2008 (supra) passed in the case of Pharmacists (Allopath) to the Pharmacists in Ayurvedic also. Against the said judgment dated 21st July, 2009, various applications for recall were preferred, however, those were rejected on 11th December, 2011 with liberty to file a review petition.
It is also stated in the counter affidavit that the petitioners of Writ Petition Nos. 1962 (SS) of 2007, 1957 (SS) of 2000 and other connected matters, have obtained the order by misleading the Court as the benefit of the judgment of Special Appeal No. 377 of 2008 (supra) could not have been extended to the Pharmacists in Ayurvedic as they are governed by a separate set of rules, being the Rules, 1991.
Insofar as the Uttar Pradesh Ayurvedic and Unani Pharmacists Service (Second Amendment) Rules, 20136 is concerned, it is stated that it has not been notified and the rules have still not been amended and the counselling was held on 13th July, 2014.
An impleadment application has been filed on behalf of the respondent nos. 3 to 228. They have also filed a counter affidavit. Their stand in brief is that on 02nd October, 2000 an advertisement for filing up 550 posts of the Pharmacists (Ayurvedic/Unani) was issued. The respondent nos. 3 to 228 applied against the said advertisement. The selection pursuant to the said advertisement was challenged by means of Writ Petition No. 1957 (SS) of 2000 (supra) by an amendment application. The said writ petition remained pending and in the meantime the writ petition filed by the Pharmacists (Allopath) was dismissed by the learned Single Judge of this Court at Lucknow Bench vide judgment dated 23rd May, 2008, against which Special Appeal No. 377 of 2008 (supra) was filed. The special appeal was allowed and it was held therein that the selection shall be made yearwise and batchwise, but the benefit of the said selection was extended only to the petitioners therein. The order of the special appeal was challenged before the Supreme Court in Special Leave Petition (C) No. 20558 of 2009, which was dismissed on 03rd August, 2008 but the order of the Division Bench was modified to the extent that the benefit of the judgment would be extended to the similarly situated persons.
After the judgment of the Division Bench in the aforesaid special appeal, which was affirmed by the Supreme Court, the writ petition filed by the respondents being Writ Petition No. 1957 (SS) of 2000 along with Writ Petition Nos. 1962 (SS) of 2007, 4936 (SS) of 2007, 5149 (SS) of 2007 and 4953 (SS) of 2007, which were clubbed together, were decided by a common judgment and order dated 21st July, 2009. In its order dated 21st July, 2009 this Court extended the benefit of the judgment of Special Appeal No. 377 of 2008 (supra) to the petitioners therein also.
It is averred in the counter affidavit that the application of the State Government for recall of the order dated 21st July, 2009 was rejected by this Court on 11th February, 2011 with a liberty to the respondents to prefer a review petition, but no review petition was preferred by the respondents. Hence, it is claimed that the order dated 21st July, 2009 came to become final.
It is further averred that when the order of this Court dated 21st July, 2009 was not complied with, the petitioners of Writ Petition No. 1957 (SS) of 2000 filed a contempt petition, being Contempt No. 365 of 2013 (Ashok Kumar Pandey and others v. J.P. Sharma and another). On 18th April, 2014 learned Additional Chief Standing Counsel made a statement before the Court that necessary approval from the Departments of Law, Finance and Karmik has been obtained for implementation of the order of this Court dated 21st July, 2009 and the matter is pending before the State Cabinet for approval, which is necessary for amending the rules in order to comply with the direction of the writ Court. Upon such statement, the Court deferred the hearing.
On 23rd May, 2014 the State Government issued a Government order, wherein it was provided that the select list shall be prepared on yearwise and batchwise basis. The Government order further provided that in terms of Rule 15(2) of the Rules, 1980 a select list containing the names of the candidates, which shall be more than 25% of the number of vacancies, shall be prepared and it shall be valid for one year and the appointments shall be made accordingly against the existing vacancies.
Pursuant to the Government Order dated 23rd May, 2014 the authorities prepared two separate lists dated 03rd July, 2014 and 11th July, 2014. In the first list, the names of 812 candidates were included for counselling and 299 candidates were included in the second list dated 11th July, 2014. They claim that their names find place in the aforesaid two lists and their counselling has been done.
As regards the petitioners, the stand taken in the counter affidavit is that they have not been vigilant as they neither filed the writ petition nor got themselves impleaded in any of the writ petitions, and only when the answering respondent nos. 3 to 228 have been called for counselling and their names have been included in the select lists, the petitioners have rushed to this Court and got an interim order without disclosing material facts.
It is further averred in the counter affidavit that the petitioners cannot claim to be similarly situated persons as per the judgment of the Supreme Court dated 03rd August, 2010. It is stated that the words "similarly situated persons" have been clarified by the Supreme Court in the contempt petitions. After the judgment dated 03rd August, 2010, a batch of contempt petitions, led by Contempt Petition (C) No. 347 of 2010 (Harit Kumar Dwivedi and others v. Pradeep Kumar Shukla and others), were filed before the Supreme Court for compliance of its order dated 03rd August, 2010. The Supreme Court in its detailed judgment dated 27th March, 2012 has clarified the order dated 03rd August, 2010 that the benefit of its order to 'similarly situated persons' as in the judgment dated 03rd August, 2010 is confined to only those persons who have applied in pursuance of the advertisement dated 12th November, 2007 for 766 posts. It is stated that the petitioners herein did not apply in pursuance of the said advertisement, therefore, in view of the clarification of the Supreme Court they cannot be treated as similarly situated persons.
I have heard Sri S.K. Kalia, learned Senior Counsel appearing for the petitioners, assisted by Sri Ankit Pandey, Sri Dharmendra Kumar Tripathi, Mohd. Tausif, Sri Vinod Kumar Tiwari, Sri Santosh Kumar Shukla and Sri L.P. Singh, learned counsel for the petitioners in the respective writ petitions; Dr. L.P. Mishra and Sri Prafulla Tiwari, learned counsel appearing for the private respondents; and Sri Rahul Shukla, learned Additional Chief Standing for the State respondents. I have considered the rival submissions advanced by the learned counsel appearing for the respective parties and perused the record.
The selection to the post of Pharmacists was earlier governed by the Rules, 1980. The said rule was replaced by the Rules, 2002, as amended by the Rules, 2003. On 12th November, 2007, 766 vacancies of Pharmacists (Allopath) were advertised inviting applications from Pharmacy Diploma holders. A writ petition was filed by the candidates for appointment on the post of Pharmacists pursuant to the said advertisement, for a direction that for the vacancies advertised the select list be prepared in accordance with Rule 15(2) of the Rules, 1980. Their writ petition was dismissed and the learned Single Judge directed that the candidates be given the benefit of relaxation in age as per the Rules of 2002. Their claim to be appointed in terms of Rule 15(2) of the Rules, 1980 yearwise/ batchwise was rejected and it was made clear that the selection shall be made strictly on the criteria of merit irrespective of the batch.
In the special appeal, being Special Appeal No. 377 of 2008, the appellants sought parity with the judgment of a learned Single Judge of this Court in Rajat Yadav and another v. State of U.P. and another, Writ Petition No. 2473 (SS) of 2000. In the said case, the State had admitted that the Pharmacists who have completed their course and got themselves registered with the Uttar Pradesh Pharmacy Council prior to the candidates who obtained diploma in the subsequent year, were entitled on the ground of the practice prevailing in the department. In view of the said stand of the State, the learned Single Judge issued a mandamus to the opposite parties to appoint the petitioners therein on the vacancies, which remained unfilled, on yearwise/batchwise basis. The said order of the learned Single Judge was complied with by the State Government. The Division Bench has noticed that the State Government has issued a circular dated 17th March, 1997 to the Director General, Medical and Health, U.P., Lucknow directing that the appointment on the post of Pharmacists shall be made in the same manner as was done earlier in 1995 and 1997. The Division Bench has also relied on a judgment of the Supreme Court in N. Suresh Nathan v. Union of India7, wherein the Supreme Court has observed that while interpreting the rule if two views are possible, then the rule would be interpreted keeping with the practice followed in the department for a long time and thus, the practice practically acquired status of rule in the department. However, the Division Bench found that after the amendment in the Rules, 2002, the said past practice lost its efficacy, but having noted the piquant situation that the appellants were earlier denied appointment on the ground of batchwise/ yearwise basis, it held that they cannot be denied the benefit of the past practice. The Division Bench observed as under:
"We, therefore, dispose of these special appeals with the direction that the appellants' cases shall be considered in accordance with the pre-existing practice by considering their appointment on the basis of their merit taking their batches into consideration as was being done earlier but this process would be available only for the appellants and they would be accommodated if they are otherwise found eligible and the remaining vacancies would be filled in by following Rule 15 (2) strictly as directed by the learned Single Judge.
At this juncture, Dr. L.P. Misra placed before the Court U.P. Lok Seva (Bharti Ke Liye Aayu Seema Ka Shithilikaran) Niyamawali, 1992, in support of his submission that the appellants are entitled to be given the age relaxation.
We without entering into this question in detail, do observe that the age relaxation be given to the appellants as per rules, if they have crossed the age limit for the reason that right from the year 1998, no selection has been made and in certain cases, age relaxation has been granted. The selection process be completed within three months from the date of receipt of a certified copy of this order."
The judgment of the Division Bench was challenged by the State Government in Special Leave Petition (C) No. 20558 of 2009 (supra) and other connected special leave petitions and was affirmed by the Supreme Court and the special leave petitions were dismissed. However, the order of the Division Bench was modified to the extent that selection pursuant to the Amendment of 2002 that is based on concept of merit selection, shall wait until the similarly situated persons have been accommodated. The relevant part of the judgment of the Supreme Court is extracted herein below:
"32. It is on account of a deliberate decision taken by the State Government that the private respondents were left out of the zone of consideration for appointment as Pharmacists in order to accommodate those who had obtained their diplomas earlier. The decision taken by the State Government at that time to accommodate the diploma holders in batches against their respective years can no doubt be discontinued at a later stage, but not to the disadvantage of those who had been deprived of an opportunity of being appointed by virtue of the same Rules. In our view, the same decision which was taken to deprive the private respondents from being appointed, could not now be discarded, once again to their disadvantage to prevent them from being appointed, introducing the concept of merit selection at a later stage. The same may be introduced after the private Respondents and those similarly-situated persons have been accommodated."
The claim of the present petitioners is based on the direction of the Supreme Court that benefit of the yearwise and batchwise practice shall be extended to all the similarly situated persons. The words "similarly situated persons" are the bone of contention of the petitioners in the present writ petitions. The stand of the newly impleaded respondents and the State is that the petitioners are not 'similarly situated persons'.
The controversy before this Court in Special Appeal No. 377 of 2008 decided vide judgment and order dated 04th May, 2009, which has been affirmed by the Supreme Court vide its judgment and order dated 03rd August, 2010, was in respect of the persons who were governed under the Rules, 1980. The Pharmacists in Ayurvedic and Unani are governed by a separate set of rules, being Rules, 1991. Rules 14 and 15 of the Rules, 1980 read as under:
"14. Determination of Vacancies.-- The Director shall determine the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under rule 6. He shall notify the vacancies to the Employment Exchange and shall also advertise them in the leading news-papers and in such other manner as may be considered proper by him.
15. Procedure for Direct Recruitment.--(1) For the purpose of recruitment, there shall be constituted a Selection Committee comprising--
1. Additional Director, to be nominated by the Director;
2. Joint Director, dealing with establishment of Pharmacists;
3. Secretary, State Pharmacy Council.
(2) The Selection Committee shall prepare a list of candidates in order of merit, as disclosed by marks obtained by them in the diploma examination. If two or more candidates obtain equal marks, the Selection Committee shall arrange their names in order of merit on the basis of their general suitability for the post. The number of the names in the list shall be larger (but not larger by more than 25 per cent) than the number of the vacancies. The list so prepared shall hold good for one year only.
(3) The Director shall forward the requisite number of the names in order of merit, from the list to the concerned appointing authority/appointing authorities."
Part-III of the Rules, 1991 deals with the recruitment. Rule 5 thereof provides that the Pharmacists (Ayurvedic) shall be appointed by direct recruitment. Part-IV of the Rules, 1991 deals with the qualification. Rule 15 of the Rules, 1991 gives the procedure for direct recruitment in the following terms:
"15. Procedure for direct recruitment--(1) Applications for being considered for selection to the post of pharmacists shall be invited by the commission in the prescribed proforma published in the advertisement issued by them.
(2) The commission shall having regard to the need for securing due representation of the candidate belonging to the scheduled castes, scheduled tribes and other categories in accordance with rules 6 call for interview such a number of candidates who fulfil the requisite qualifications as they consider proper.
(3) The commission shall prepare a list of candidates in order of their proficiency as disclosed by the marks obtained by each candidates in the interview. If two or more candidates obtain equal marks, the commission shall arrange their names in order of merit on the basis of their general suitability for the service. The number of names in the lists shall be larger (but not larger by more than twenty five per cent) than the number of vacancies. The commission shall forward the list to the appointing authority."
Relevant it would be to note that the earlier dispute arose when an advertisement dated 12th November, 2007 was issued, by which 766 vacancies were advertised for filling up the posts of Pharmacists (Allopath) by diploma holders. In the advertisement it was provided that the recruitment shall be made in terms of the Rules, 2002 as amended by the Rules, 2003 and the relevant Services Rules, as being enforce. The said rule provided that the recruitment shall be made on the basis of the merit. At that point of time the diploma holders of Allopath had filed several writ petitions, which were decided by judgment dated 23rd May, 2008, against which Special Appeal No. 377 of 2008 and other connected appeals were filed and disposed of on 04th May, 2009, and in view of the clarification of the Supreme Court, the matter has been set at rest.
After the judgment of the Supreme Court dated 03rd August, 2010, as referred above, several contempt petitions were filed before the Supreme Court, led by Contempt Petition (C) No. 347 of 2010, and one contempt petition therein was Contempt Petition (C) No. 269 of 2012. The Supreme Court has clarified the words "similarly situated persons" used in the order dated 03rd August, 2010. In Contempt Petition (C) No. 347 of 2010 the Supreme Court in its order dated 14th August, 2012 noticed its order dated 27th March, 2012, wherein it has indicated that its direction in the order dated 03rd August, 2010 was not confined to only 766 vacancies but its intention was that those persons who had earlier been deprived on account of the rules had to be accommodated first. The relevant part of the order of the Supreme Court dated 14th August, 2012 reads as under:
"7. Be that as it may, the intention in our judgment of 3rd August, 2010, and the order of 27th March, 2012, was very clear on the point that those persons who had earlier been deprived on account of the Rules than extant, had to be accommodated first before other candidates could be considered. We once again reiterate the said direction and give the alleged contemnors eight weeks time to comply with the same."
On 27th November, 2012, on the next hearing, a statement was made on behalf of the State and the contemnors that they have prepared a merit list of the concerned candidates who have obtained diploma upto the year 1998, and they were ready and willing to consider those candidates who were similarly circumstanced upto the year 2002, when the amendment has been made, and two months' time was allowed to implement the order of the Supreme Court.
The second contempt petition, being Contempt Petition (C) No. 269 of 2012, along with I.As. Nos. 4-5 of 2013 and some other connected I.As. were heard by another Bench of the Supreme Court comprising Hon'ble Mr. Justice Fakkir Mohamed Ibrahim Kalifulla and Hon'ble Mr. Justice Shiva Kirti Singh. In its order dated 23rd September, 2014 the Supreme Court considered its all the earlier orders passed in Special Leave Petition (C) No. 20558 of 2009 dated 03rd August, 2010, I.As. and contempt petitions. There was a serious dispute regarding the number of the vacancies between the parties, hence the Court directed the Principal Secretary, Law, to determine the actual number of the vacant posts available and was also directed to ascertain and resolve solution by giving an opportunity to the parties. The Principal Secretary, Law, submitted a report dated 27th September, 2013 that total number of vacant posts was 955. However, the Director General, Medical & Health Services, in his affidavit seriously disputed the number of the vacancies mentioned by the Principal Secretary, Law and informed the Court that the report of the Principal Secretary, Law, does not reflect the correct figure as his report is based on the information furnished by the Director (Para-Medical) Dr. V.S. Srivastava, who failed to gather total number of vacancies in the department from all the districts with the matching information available at the Headquarters as well as the Government. The Supreme Court was informed that the said Director Dr. V.S. Srivastava has been proceeded against by way of disciplinary action for furnishing wrong information to the Law Secretary. The Supreme Court allowed the State to verify the available vacancies by calling for particulars from the Department from all the districts and the information available in the Headquarters.
The Supreme Court has also noted the report of the Law Secretary wherein he has informed the Court that none of the petitioners in the contempt petition had applied pursuant to the advertisement published in the year 2007. It was also mentioned that even their application forms were not on the record.
In the light of the said facts the Supreme Court clarified that the benefit of its order in respect of the "similarly situated persons" was confined to only those candidates who had applied in pursuance of the advertisement of 2007. The relevant part of the order of the Supreme Court is as follows:
"23. Though in the first blush, such a submission of the learned Senior Counsel appears to be forceful and appealing, it will have to be stated that even such a claim of any person as similarly placed candidate cannot be considered de hors the relevant Rules relating to appointment to the posts of Pharmacists. In this context, the reference to Rules 14 and 15 and the advertisement dated 12.11.2007, assume significance. We have taken pains to analyse this issue and clarify the position in order to give effect to the orders of this Court rendered in Santosh Kumar Mishra (supra), so that there is no doubt in the minds of either the claimants or the Appointing Authority, namely, the State while implementing our orders."
The Supreme Court after noticing Rules 14 and 15 of the Rules, 1980 observed, thus:
"26. When this Court held that the benefit should be extended to similarly placed persons who were to be accommodated, what it really meant to state was that those who responded to the advertisement made on 12.11.2007, by which applications were called for filling up the post of 765 vacancies of Pharmacists, were to be considered only by following the procedure prescribed under Rules 14 and 15 of the Rules of 1980. Certainly, without following the relevant Rules, namely, 14 and 15 and ignoring the requirements contained in the advertisement dated 12.11.2007, no candidate can be considered for being appointed to the post of Pharmacist. In other words, for a person to claim himself to be similarly placed, i.e., at par with the writ petitioners, namely, the appellants before the Division Bench of the High Court and the private respondents in the Special Leave Petition in Santosh Kumar Mishra (supra), primarily they should have applied in response to the advertisement dated 12.11.2007. If they had not responded to the said advertisement by filing the appropriate applications, they cannot subsequently be heard to say that they were all similarly placed and that therefore, the State of Uttar Pradesh should consider them as similarly placed candidates like that of the private respondents in the Special Leave Petition, for being considered for the post of Pharmacists, merely because they belonged to some of the batches of 1998 to 2002.
27. Such a claim made on behalf of any of the candidates, much less the 360 candidates who staked their claim before the Principal Secretary, Law cannot, therefore, be countenanced. The Principal Secretary, Law, having now reported in his report dated 27.9.2013 that none of the 360 candidates were the applicants, there is no scope for treating them as similarly placed persons as held in Santosh Kumar Mishra (supra). Consequently, their claim now raised before us cannot also be acceded to. We, therefore, make it clear that neither the above 360 persons referred to in the report of Principal Secretary, Law dated 27.09.2013 or any other candidate who did not apply in response to the advertisement dated 12.11.2007 claiming himself to be a member of the batch 1998 to 2002, can seek for consideration of his claim at par with the private respondents in Santosh Kumar Mishra (supra) in order to consider his claim for conferring the benefit granted in the said judgment."
(Emphasis supplied by me) From the above extracted orders of the Supreme Court, it is crystal clear that the claim of the petitioners herein that they are entitled for the benefit of the judgment of the Supreme Court dated 03rd August, 2010 has no merit. There is no averment in the writ petition that they had applied in pursuance of the advertisement of 2007.
The submission of the learned Standing Counsel that the judgment dated 21st July, 2009 was obtained by the petitioners therein by misleading the Court, hardly merit acceptance. The said order was passed by the Court after hearing the learned counsel for the State and thereafter a recall application of the State was also rejected by the Court on 11th February, 2011 with liberty to prefer a review petition. In paragraph 3(VII) of the counter affidavit filed on behalf of the private respondent nos. 3 to 228 it has been averred by the contesting respondents that no review petition was preferred by the respondents-State. The said averment has not been denied in paragraph-7 of the rejoinder affidavit. My attention has not been drawn to any order passed after 11th February, 2011 in the said writ petitions.
In addition to above, when Contempt Petition No. 365 of 2013 (Ashok Kumar Pandey and others v. J.P. Sharma and another) was filed before this Court at Lucknow Bench for not complying with the order dated 21st September, 2009, a statement was made therein by the learned Additional Chief Standing Counsel that the Departments of Law, Finance and Karmik have given the approval for compliance of the said order and to amend the Rules and the matter was pending before the State Cabinet for approval, which is necessary for amending the rules in order to comply with the writ directions, and subsequently a Government Order has been issued on 23rd May, 2014 for compliance of the directions of the writ Court. It is not on the record that the said Government Order has been rescinded or modified by any subsequent Government Order. Thus, the stand of the learned counsel for the State that the contesting private respondents have obtained the order by misleading the Court, has no basis. From the record it is obvious that pursuant to the said Government Order two separate select lists were prepared on 03rd July, 2014 and 11th July, 2014. The counselling of the contesting respondents has been conducted and their names have been included in the select list. This fact has also not been denied in the rejoinder affidavit. In paragraph-9 of the rejoinder affidavit an evasive reply has been given by the petitioners and there is no specific denial therein to the averments made by the respondent nos. 3 to 228 in Paragraph 3(XI) of their counter affidavit.
In view of the above, I find myself unable to accept the submission of Sri Kalia that the petitioners are entitled to be considered as they are similarly situated persons, for the reasons that the Supreme Court in its subsequent orders dated 27th March, 2012, 14th August, 2012 and 23rd September, 2014 passed in Contempt Petition (C) Nos. 347 of 2010 and 269 of 2012 (supra), as referred to above, has clarified that for the benefit of the words "similarly situated persons" only those candidates are entitled who had applied in pursuance of the advertisement made in the year 2007. Admittedly, the petitioners have not applied in pursuance of the said advertisement.
Regard may be had to the fact that the petitioners have averred in paragraphs-11 and 12 of the writ petition that after the judgment of the Supreme Court dated 03rd August, 2010 the State Government amended the Rules, 1991 in the year 2013 by promulgating the Uttar Pradesh Ayurvedic and Unani Pharmacists Service (Second Amendment) Rules, 2013 and a copy of the said rule has been brought on record as annexure-8 to the writ petition. A perusal of the annexure-8 clearly indicates that it was a draft rule and it is yet to be framed by the State Government. Later on, by a supplementary affidavit the petitioners have expressed their regret for the incorrect averment made in the writ petition.
There is also another factor which may be regarded as having a bearing on the issue. Dr. L.P. Mishra, learned counsel for the private respondents, strenuously urged that the petitioners are fence-sitters. There is a legal maxim 'lex vigilantibus non dormeintibus subvenit', which means that the law helps the vigilant and not the person who sleeps over his rights.
In K.I. Shephard and others v. Union of India and others8 the Supreme Court held that in every case it is not necessary for every person to approach the Court. It is the duty of the authority to extend the benefit of a concluded decision in all similar cases without forcing every affected person to approach the Court to seek relief.
This principle has been considered again elaborately by the Supreme Court in Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and others9. While following the principle laid down in K.I. Shephard (supra), the Court carved out some exceptions to the above principle as under:
"(a) where the order is made in a petition filed in a representative capacity on behalf of all similarly situated employees;
(b) where the relief granted by the court is a declaratory relief which is intended to apply to all employees in a particular category, irrespective of whether they are parties to the litigation or not;
(c) where an order or rule of general application to employees is quashed without any condition or reservation that the relief is restricted to the petitioners before the court; and
(d) where the court expressly directs that the relief granted should be extended to those who have not approached the court."
It is apt to quote the observation of the Court in Ghanshyam Dass (supra) regarding fence-sitters. The Court held thus:
"26. On the other hand, where only the affected parties approach the court and relief is given to those parties, the fence-sitters who did not approach the court cannot claim that such relief should have been extended to them thereby upsetting or interfering with the rights which had accrued to others."
Recently, the Supreme Court again considered the effect of delay and laches in the case of State of Uttar Pradesh and others v. Arvind Kumar Srivastava and others10 and observed in the following terms:
"18. ....The question that arose for consideration was as to whether the employees who did not wake up to challenge their retirement orders, and accepted the same, and had collected their post-retirement benefits as well, could be given relief in the light of the decision delivered in Harwindra Kumar11. The Court refused to extend the benefit applying the principle of delay and laches. It was held that an important factor in exercise of discretionary relief under Article 226 of the Constitution of India is laches and delay. When a person who is not vigilant of his rights and acquiesces into the situation, his writ petition cannot be heard after a couple of years on the ground that the same relief should be granted to him as was granted to the persons similarly situated who were vigilant about their rights and challenged their retirement..."
In paragraph-21 of the judgment, the Court further held as under:
"21. ..... If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted..."
In Arvind Kumar Srivastava (supra) the Supreme Court has summed up the principle as under:
"22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India12). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
Applying these principles in the present batch, I find that the petitioners' case falls under the exception carved out by the Supreme Court for the following reasons:
(1) The Supreme Court itself in its order dated 27th March, 2012 has clarified the words "similarly placed" occurred in its earlier judgment.
(2) The petitioners have not filed any writ petition nor they got themselves impleaded in large number of writ petitions which were pending in this Court in the matter of recruitment of Pharmacists. The respondent nos. 3 to 228 had earlier preferred several writ petitions, being Writ Petition No. 1957 (SS) of 2000 and other connected writ petitions, details of which have already been mentioned in the earlier paragraphs.
(3) This Court in its order dated 21st July, 2009 passed in the batch of writ petitions, led by Writ Petition No. 1962 (SS) of 2007, which was decided by a common judgment on 21st July, 2009, has issued a positive direction that the benefit of the judgment of the Division Bench of this Court in Special Appeal No. 377 of 2008 (supra) shall be extended to the petitioners therein.
(4) The claim of the respondent nos. 3 to 228 herein is based on the direction of this Court in the judgment dated 21st July, 2009, which has attained finality and the State Government has issued a Government Order dated 23rd May, 2014 and pursuant thereto their counselling has been conducted and their names have been included in two separate lists dated 03rd July, 2014 and 11th July, 2014. Thus, they are a separate class who have been given the benefit of the judgment dated 21st July, 2009, which has attained finality.
What, therefore, emerges from the discussions made herein-before is that the petitioners are not similarly situated persons in terms of the judgment of the Supreme Court hence, they are not entitled for the benefit of the judgment of the Division Bench of this Court in Special Appeal No. 377 of 2008 and the judgment of the Supreme Court dated 03rd August, 2010, therefore, they are not entitled for the relief which they have claimed. They woke up after long delay only because their counterparts, who had approached this Court and the Supreme Court, succeeded in their effort. They are fence-sitters and laches and delay and/or the acquiescence would be a valid ground to deny them relief in addition to other reasons discussed above.
A submission has been made at the bar that after adjusting the respondent nos. 3 to 228 a large number of vacancies still will be available, against which the petitioners can be adjusted as they are of the previous batch. Be that as it may, without expressing any opinion on their claim on this issue, the State Government is at liberty to consider their case independently on the ground of pre-exiting practice if there is no other legal impediment.
Accordingly, the writ petitions are dismissed.
Parties will bear their own costs.
Date :- 12th April, 2017.
SKT/-