Rajasthan High Court - Jaipur
Vineet Nagar &Ors; vs State (Medical And Health)Ors on 5 August, 2016
Author: Ajay Rastogi
Bench: Ajay Rastogi
IN THE HIGH COURT OF JUDICIATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR 1. D.B.Special Appeal (Writ) No.21/2016. Bajrang Lal & Others. VERSUS State of Rajasthan & Others. 2. D.B.Special Appeal (Writ) No.53/2016. Ram Naresh Gurjar & Others. VERSUS State of Rajasthan & Others. 3. D.B.Special Appeal (Writ) No.126/2016. Vineet Nagar & Others. VERSUS State of Rajasthan & Others. Judgment reserved on : 19th July, 2016 Date of Judgment : 5th August, 2016. PRESENT HONBLE MR. JUSTICE AJAY RASTOGI HONBLE MR. JUSTICE J.K.RANKA Mr.Ashok Gaur, Senior Counsel assisted by Mr.Ajay Choudhary ] Mr.Shribhan Gurjar ] Counsel for appellants. Mr.G.P.Kaushik ] Mr.Shyam Arya, Addl.Advocate General for State. Mr.Saransh Saini ] Mr.H.V.Nandwana ] Mr.Nitesh Kumar Garg ] Counsel for respondents. Mr.Raghunandan Sharma] ***** BY THE COURT (Per Honble Mr.Justice Ajay Rastogi):
Instant intra-court appeals are preferred against order of the ld.Single Judge dt.04.12.2015.
At the outset, it may be noticed that the present appellants were not party to the proceedings before the ld.Single Judge and the State Government has been directed to revise the select/merit list under the impugned judgment dt.04.12.2015 and since the appellants had participated in the selection process pursuant to the advertisement dt.26.02.2013 and placed in the final select/merit list, their rights being seriously jeopardized, preferred the intra-court appeals along with application seeking leave of the court, which was allowed and they were permitted to make submissions on merits in the instant batch of appeals. At the same time, there are certain applications filed during pendency of the proceedings, seeking their impleadment by such of them who are claiming themselves to be the beneficiaries of order of the ld.Single Judge and they too are permitted to intervene in the matter as an intervener vide order of this court dt.30.01.2016.
It may be noticed that on the first date of hearing when the matter was listed for admission on 13.01.2016, operation & effect of order impugned of the ld.Single Judge dt.04.12.2015 was stayed and it has not been given effect to till date. With consent of the parties, the matter has been finally heard at the admission stage itself.
The brief facts of the case, which can be culled out from the record, are that the post of Pharmacist, a post which is included in the schedule appended to the Rajasthan Medical & Health Subordinate Service Rules, 1965 is to be filled 100% by direct recruitment and holding diploma in Pharmacy and registered as Pharmacist in Rajasthan Pharmacy Council are the minimum qualification under the scheme of Rules.
It may be noticed that the Pharmacy Council of India, a parent statutory authority, has recognized the requisite qualifications for becoming a Pharmacist i.e. (i) Diploma in Pharmacy (D.Pharma 2 year course); and (ii) Bachelor in Pharmacy (B.Pharma 4 year course) to be noticed that for the holders of Diploma in Pharmacy, there is a lateral entry in the Bachelor in Pharmacy (3 years) in the second year. The educational & other qualification which has been notified by the Ministry of Health & Family Welfare in exercise of powers conferred by the proviso to Art.309 of the Constitution for direct recruitment to the post of Pharmacist (Allopathic) in the Central Government Health Scheme Organization are ad infra:-
Educational and other qualification required for direct recruits Whether age and educational qualification prescribed for direct recruits will apply in the case of promotees Period of probation, if any 7 8 9
(i) 12th class pass with Science subjects (Physics, Chemistry and Biology) or equivalent from a recognised Board or University;
(ii) Diploma in Pharmacy from recognised institution and registered as Pharmacist under the Pharmacy Act, 1948; and
(iii) Two years' experience as Pharmacist in any recognised Hospital or Pharmacy after duly regisetered as Pharmacist under the Pharmacy Act, 1948; and OR
(i) Bachelor degree in Pharmacy (B.Pharma) from a recognised University or equivalent; and
(ii) registered as a Pharmacist under the Pharmacy Act, 1948.
Not applicable Two years Prior to the present selection process, which came to be initiated pursuant to the advertisement dt.26.02.2013, earlier the process was initiated holding selection for the post of Pharmacist in the year 2011 vide advertisement dt.27.11.2011 with the minimum qualification prescribed as D.Pharma. However, vide order dt.28.11.2011, the State of Rajasthan and the Rajasthan University of Health Sciences clarified that the Rules prescribe only the minimum qualification of D.Pharma and the candidates possessing higher qualification of B.Pharma & M.Pharma are considered eligible to participate in the selection process of Pharmacist.
This decision of the respondents of considering the candidates, who were holders of higher qualification of B.Pharma & M.Pharma to be eligible to participate in the selection process initiated for the post of Pharmacist, pursuant to the advertisement dt.27.11.2011, became a subject matter of challenge initially by filing a batch of writ petitions before the ld.Single Judge in S.B.Civil Writ Petition No.117/2012 (Irshad Rashid Pathan & Others Vs. State of Rajasthan & Others) at the instance of those who are holders of D.Pharma & their objection was that the candidates who are holding the qualification of B.Pharma & M.Pharma, who may be holding a higher qualification but such qualification being not prescribed in the scheme of Rules, should not be treated to be eligible for the post of Pharmacist, the ld.Single Judge of this court after hearing the parties vide judgment dt.07.05.2012 & relying on judgment of the Apex Court in S.Satyapal Reddy & Others Vs. Government of A.P. & Others reported in (1994) 4 SCC 391 observed that the candidates possessing the qualification of B.Pharma & M.Pharma being in the same stream and a higher qualification, certainly are eligible to participate in the selection process initiated for the post of Pharmacist under the Rules, 1965.
The view of the ld.Single Judge in the batch of writ petitions decided vide judgment dt.07.05.2012 came to be challenged in D.B.Special Appeal (Writ) No.772/2012 & other batch of appeals and while upholding the view of the ld.Single Judge, the Division Bench vide its judgment dt.30.05.2012 observed that the candidates possessing qualification of B.Pharma & M.Pharma are in the same stream which is indeed higher qualification than D.Pharma and there is no reason or rhyme to exclude the candidates possessing the higher qualification of B.Pharma & M.Pharma and they are eligible for being appointed on the post of Pharmacist and the corrigendum issued by the recruiting authority dt.28.11.2011 was considered to be in conformity with the scheme of Rules being valid and accordingly the holders of B.Pharma & M.Pharma are considered eligible to participate in the selection process for the post of Pharmacist under the Rules, 1965 but at the relevant point of time when the selection process was initiated in the year 2011 vide advertisement dt.27.11.2011, the selection was to be held on the basis of written examination to be conducted by the appointing authority as provided under proviso to R.19 and the marks secured therein and such bonus marks, as specified under the Rules was the basis for preparing merit list of the candidates for appointment to the post of Pharmacist.
Thereafter, the present advertisement, with which we are presently concerned, came to be published vide notification dt.26.02.2013 inviting applications for appointment to 1209 posts of Pharmacist and such of the candidates who were holding the qualification of D.Pharma, B.Pharma & M.Pharma submitted their applications to participate in the selection process and the basis for preparation of merit list has been taken note of in the advertisement dt.26.02.2013 indicated in para 6 & 9, of which we shall make a reference at later stage.
The candidates who have participated in the selection process, their merit list is to be prepared in terms of proviso to R.19 of the Rules, 1965 substituted vide amendment notification dt.06.02.2013 and taking note of the qualification of D.Pharma and the candidates who were held to be eligible in the earlier round of litigation holding qualification of B.Pharma and M.Pharma, the recruiting authority took a policy decision that such of the candidates who are holding the qualification of D.Pharma (2 years) and B.Pharma (4 years) the marks secured in their qualifying shall be considered to be the basis for preparation of select/merit list and such of the candidates who earlier acquired the qualification of D.Pharma and after lateral entry qualified B.Pharma (3 years), their marks secured in D.Pharma shall be considered for preparation of merit list in terms of proviso to R.19 of the Rules, 1965 vide amended notification dt.06.02.2013 and the final select/merit list was prepared by the recruiting authority but before it could be acted upon, one of the candidate who did D.Pharma in the first instance and after lateral entry did B.Pharma (3 years) filed a writ petition before the ld.Single Judge of this court [S.B.Civil Writ Petition No.15353/2015] and his grievance was that the respondents are adopting different criteria in preparing the select/merit list and such of the candidates who are having the qualification of D.Pharma and B.Pharma or M.Pharma are considered eligible while preparing the select/merit list by taking into consideration their marks of D.Pharma & B.Pharma respectively and the petitioner who is in possession of the qualification of D.Pharma and has lateral entry in B.Pharma, his marks of B.Pharma have not been taken into consideration and to this limited extent the question was raised as to whether the candidates like writ petitioner who is holding the qualification of D.Pharma and by lateral entry acquired the qualification of B.Pharma, his marks secured in D.Pharma is considered or the marks secured in B.Pharma is to be considered for preparation of merit list, in terms of the proviso to R.19 of the Rules, 1965 amended vide amendment notification dt.06.02.2013 and we consider it appropriate to quote the prayer which the original writ petitioner has made in S.B.Civil Writ Petition No.15353/2015, which reads ad infra:-
It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this writ petition in the interest of justice and:-
(i) by an appropriate writ, order or direction, the respondents be directed to consider the candidature of the petitioner for appointment on the post of Pharmacist under the advertisement dated 26.02.2013 taking into consideration his qualification/eligibility of degree in Pharmacy (B.Pharma) and not the marks of D.Pharma or taking into consideration the average of marks of D.Pharma and B.Pharma both being B.Pharma of the petitioner is in continuity of D.Pharma and treat the case of the petitioner at par with that of the candidates who acquired the qualification of B.Pharma directly.
(ii) By further appropriate writ, order or direction the respondents be further directed to consider the objections filed by the petitioner and amend the provisional list accordingly by treating the qualification of B.Pharma of the petitioner at par with the candidates who got directly the B.Pharma course.
(iii) Any other order which this Hon'ble Court considers expedient, just and proper in the facts and circumstances of the case may kindly be granted in favour of the petitioner; and
(iv) Cost of this writ petition may kindly be awarded in favour of the humbly petitioner.
At the outset, it may be noticed that none of the candidates who are holder of D.Pharma or B.Pharma and participated in the selection process questioned the wisdom of the appointing/recruiting authority in laying down the policy decision to consider the marks of the candidates secured in D.Pharma or B.Pharma while preparing the select/merit list in terms of proviso to R.19 of the Rules, 1965, as amended vide amendment notification dt.06.02.2013 and none questioned the final select/merit list, except the single writ petitioner in the instant writ petition.
After the notices were served, reply was filed by the State Government and it was stated that the candidates who are in possession of D.Pharma and have also acquired by lateral entry B.Pharma, their merit list has been prepared on the basis of the marks of D.Pharma. Per contra, it is submitted that the candidates who have validly acquired B.Pharma and M.Pharma, their marks secured in B.Pharma has been taken into consideration and such of the candidates who are in possession of D.Pharma and a lateral entry in the second year of B.Pharma which is a 3 year course, ordinarily the B.Pharma is a 4 year course, their merit is prepared on the basis of the marks secured by them in D.Pharma and the criteria for preparing the merit list of the candidates, who are holders of D.Pharma or B.Pharma, was decided by the committee in its meeting held on 27.05.2015. The relevant extract of the minutes of meeting dt.27.05.2015 is reproduced ad infra:-
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It may be noticed that this criteria for selection on merit was never the subject matter of challenge before the ld.Single Judge in any of the proceedings and accordingly the merit/select list of the candidates who have participated in the selection process, held for the post of Pharmacist, pursuant to the advertisement dt.26.02.2013 was prepared and before it could be acted upon, the solitary writ petition was filed, which is impugned in the instant proceedings with the grievance that how far the recruiting authority is justified in preparing his merit on the basis of the marks secured in D.Pharma when he has also acquired the qualification of B.Pharma at a later point of time but when the matter was heard before the ld.Single Judge, question appears to be raised that if the qualification prescribed in the schedule appended to the Rules, 1965 is D.Pharma and merit is to be prepared of the candidates in terms of the proviso to R.19 of the Rules, 1965, introduced vide amendment notification dt.06.02.2013 on the basis of the marks secured in the qualifying which is D.Pharma and such of the candidates who might be holding higher qualification in the same stream of B.Pharma & M.Pharma, although have been held to be eligible to participate in the selection process for the post of Pharmacist under the scheme of Rules, 1965, but in terms of proviso to R.19, introduced vide amendment notification dt.06.02.2013, the merit of the candidates is to be prepared on the basis of the marks secured in the qualifying i.e. D.Pharma and the candidates holding higher qualification & in the same stream i.e. B.Pharma or M.Pharma still they are not to be considered eligible for the purpose of preparation of their merit and the ld.Single Judge in its impugned judgment dt.04.12.2015 finally observed that the candidates who are holding the qualification of B.Pharma & M.Pharma are eligible to participate but the merit of the candidate has to be strictly on the basis of marks secured in D.Pharma and that is in consonance with the R.19 of the Rules, as amended vide amendment Notification dt.06.02.2013 and it is not in the competence of the authority to amend the Rules by executive fiat and directed the State authorities and finally in accordance with the directions issued by the ld.Single Judge under order impugned, merit/select list has to be prepared of the candidates who are holding the qualification of D.Pharma which is the qualifying prescribed under the scheme of Rules, 1965 and holders of B.Pharma & M.Pharma stands eliminated from consideration zone despite their eligibility to participate for Pharmacist under the Rules, 1965.
Counsel for appellants jointly submit that in the earlier round of litigation, the matter travelled upto the Division Bench of this court & based on the self same qualification as prescribed under the scheme of Rules, 1965 i.e. D.Pharma, it was finally held by the Division Bench that the candidates who are holders of B.Pharma & M.Pharma, which are in the same stream, are indeed eligible & holding higher qualification for the post of Pharmacist under the Rules, 1965 and in the second round of litigation their eligibility has not been questioned and even the ld.Single Judge has held that those candidates who are holding the qualification of B.Pharma & M.Pharma are eligible to participate in the selection process initiated for the post of Pharmacist in terms of the advertisement dt.26.02.2013 but eliminated them from the zone of consideration while assessment of their merit under proviso to R.19 of the Rules, as amended vide amendment notification dt.06.02.2013 on the premise that proviso to R.19 only envisages the marks secured in the qualifying i.e. D.Pharma for the purpose of preparing the select/merit list of the candidates and no other criteria is possibly acceptable and the authority is under an obligation to prepare the merit list of the candidates on the basis of the marks secured in D.Pharma and the candidates who, indisputably, are holding higher qualification in the same stream of B.Pharma or M.Pharma, stands eliminated by this indirect method which according to the appellants counsel is violative of Art.14 of the Constitution.
Counsel further submits that proviso to R.19 of the Rules, 1965 clearly envisage that marks secured in qualifying are to be considered for preparation of merit and the purposive interpretation of the R.19 of the Rules, 1965, as amended vide amendment notification dt.06.02.2013, is that the candidates who are holders of D.Pharma or B.Pharma, which indisputably is the qualifying examination in the stream are eligible. Thus, the respondent-State has not committed any error in preparing select/merit list of the candidates based on the marks secured by the candidates in their D.Pharma or B.Pharma, in terms of the R.19 of the Rules, 1965 and according to them, the ld.Single Judge has committed serious error in holding that the candidates of B.Pharma or M.Pharma may be eligible but the recruiting authority is under an obligation to prepare the select/merit list of the candidates based on the qualification of D.Pharma, in terms of the R.19 of the Rules, 1965, which according to the counsel for appellant is illogical proposition and is certainly not sustainable in law.
Counsel further submits that the decision of the recruiting authority in interpreting R.19 of the Rules and preparing the merit list of the candidates on the basis of the marks obtained in D.Pharma & B.Pharma is certainly in consonance with the R.19 of the Rules, 1965, as amended vide amendment notification dt.06.02.2013 and finding of the ld.Single Judge while holding the holders of B.Pharma & M.Pharma eligible for the post of Pharmacist and in the same breath eliminating them from being considered on the basis of higher qualification for participating and preparing the select/merit list of the candidates is taking away their right of fair consideration which has attained finality by the earlier judgment of the Division Bench of this court and further submits that the scheme of Rules, 1965 has to be interpreted in a pragmatic manner and cannot be read in isolation to eliminate the eligible candidates by such indirect method which is violative of the mandate of Art.14 of the Constitution and this is the basic error which the ld.Single Judge has committed in appreciating the contrary under consideration.
Counsel further submits that what is being clarified by the respondents while initiating the selection process & preparing the merit list is supplementing their submission & is in conformity with R.19 of the Rules, 1965, as amended vide amendment notification dt.06.02.2013 and when no one has questioned the validity of the policy decision of the recruiting authority laying down a criteria to determine the merit list based on the marks secured in D.Pharma or B.Pharma, what is being observed by the ld.Single Judge in the judgment impugned in directing the State authorities to prepare the select/merit list afresh exclusively on the basis of the marks secured in D.Pharma would indisputably eliminate all the other eligible candidates & holders of B.Pharma & M.Pharma from the zone of consideration and that is not the intention of the rule making authority in laying down the aforesaid criteria and the same is not in consonance with R.19 of the Rules, 1965, as amended vide amendment notification dt.06.02.2013.
Counsel for State wholeheartedly supported the submission made by counsel for the appellants and submits that the State is still of the view that the criteria which has been laid down for preparation of select/merit list is certainly on the basis of the marks secured by the candidates in their qualifying which is D.Pharma or B.Pharma, as the case may be and merely because the scheme of Rules only contemplates qualifying which is D.Pharma, that in no manner eliminate the candidates who are holders of higher qualification from the zone of consideration and their marks secured in B.Pharma have rightly been taken note of by the recruiting authority for the purpose of preparation of merit in terms of proviso to R.19 of the Rules, as amended vide notification dt.06.02.2013.
The original writ petitioner, represented by Mr.Saransh Saini, Advocate submits that although his client initially qualified D.Pharma and has a lateral entry in B.Pharma (3 years) but in terms of the directions issued by the ld.Single Judge, he has instructions to say that he has no objection if his merit is prepared on the basis of the marks secured in D.Pharma, which is in consonance with R.19 of the Rules, 1965.
Other counsel who are appearing for the respondents, other than the State of Rajasthan, joined hands together and collectively submit that amended proviso to R.19 of the Rules, 1965 clearly postulates that merit is to be prepared on the basis of the marks secured in qualifying i.e. D.Pharma for the post of Pharmacist, included in the schedule appended to the Rules, 1965 and the recruiting authority is under an obligation to prepare the merit list based on marks secured in D.Pharma which is the minimum qualifying exam under the Rules, 1965 and candidates who are the holders of higher qualification may be in the same stream i.e. B.Pharma or M.Pharma and are eligible as well, as held by this court to participate in the selection process but proviso to R.19 of the Rules, 1965 has to be strictly adhered to and what should be taken note of is the qualifying for the purpose of preparation of select/merit list, as such, the candidates who are holder of D.Pharma are alone to be considered in the zone of consideration for the purpose of preparation of merit list for the post of Pharmacist, in terms of the advertisement dt.26.02.2013 and that has been rightly held by the ld.Single Judge & needs no interference.
We have heard counsel for the parties and with their assistance perused the material available on record.
The post of Pharmacist is included in the schedule appended to the Rules, 1965 and it will be appropriate to quote hereunder for reference the extract of schedule:-1 2 3
(i) (ii) 4 5 6 7 (b) Pharmacist 100% - 1. Diploma in Pharmacy; and 2. Registered as Pharmacist in Rajasthan Pharmacy Council. - -
Persons, who are working as Pharmacist cum- Compounder, shall be re-designated as Pharmacist from the date of commencement of these amendment rules.
The minimum qualification as prescribed under the schedule appended to the Rules, 1965 is D.Pharma and one should be registered as Pharmacist in the Rajasthan Pharmacy Council and the later part of the qualification is not in question & challenge in the instant proceedings.
According to the schedule, the post of Pharmacist is to be filled 100% by direct recruitment and earlier when the process was initiated, pursuant to the advertisement dt.27.11.2011 for Pharmacist, the selection was to be held in terms of R.19 on the basis of the written examination to be conducted by the appointing authority and the relevant notification dt.21.02.2012 whereby the first proviso to R.19 of the Rules, 1965 was substituted by the following, which reads ad infra:-
2. Amendment of rule 19.- The existing first proviso to rule 19 of the Rajasthan Medical & Health Subordinate Service Rules, 1965, shall be substituted by the following, namely :-
Provided that in case of appointment to the post of Pharmacist, the written examination shall be conducted by the Appointing Authority and the merit shall be prepared on the basis of marks obtained in such written examination and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government, Chief Minister BPL Jeevan Raksha Kosh, National Rural Health Mission, Medi Care Relief Society, AIDS Control Society, Institutes under Cooperative Departmental or Sahakari Upbhokta Bhandar.
According to this notification dt.21.02.2012 all the candidates who are eligible & holders of D.Pharma or B.Pharma & M.Pharma, after finally being held eligible in the first round of litigation by the Division Bench of this court holding that these are higher qualification in the same stream and are eligible for the post of Pharmacist are permitted to appear in the written examination, in terms of the notification dt.21.02.2012 and bonus marks as prescribed for the purpose for preparation of merit of the candidates who have participated in the selection process but before the issue of present advertisement dt.26.02.2013, yet a further amendment was made substituting the proviso to R.19 of Rules, 1965 vide notification dt.06.02.2013 and being relevant for the present purpose, the same is reproduced ad infra:-
4. Amendment of rule 19.- The existing provisos to rule 19 of the said rules, shall be substituted by following new provisos namely:-
Provided that in case of appointment to the post of Pharmacist, merit shall be prepared by the Appointing Authority on the basis of marks obtained in qualifying as specified in the schedule appended to these rules and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government, Chief Minister BPL Jeevan Raksha Kosh, National Rural Health Mission, Medi Care Relief Society, AIDS Control Society, Institutes under Cooperative Departmental or Sahakari Upbhokta Bhandar:
Provided that in case of appointment to the posts other than Pharmacist, which are not in the purview of the Commission, merit shall be prepared by the Appointing Authority on the basis of marks obtained in such qualifying academic examination or professional examination or both as specified in the schedule appended to these rules and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government, National Rural Health Mission and Medi Care Relief Society:
Provided further that the decision of the Commission or Appointing Authority, as the case may be, as to the eligibility or otherwise of a candidate, shall be final.
As per the proviso to R.19, the merit list of the candidates for the post of Pharmacist is to be prepared on the basis of the marks secured in qualifying as specified in the schedule appended to the Rules, 1965 but if we examine the schedule, of which we have made a reference supra, and proviso to R.19 of the Rules, which has been amended vide notification dt.06.02.2013, D.Pharma is the minimum qualification but the candidates who are holders of a qualification which, indisputably, is higher in the same stream i.e. B.Pharma or M.Pharma, are indeed eligible to participate in the selection process initiated for the post of Pharmacist under the scheme of Rules, 1965. Indisputably, even in terms of the proviso to R.19 of the Rules, their qualifying which is D.Pharma or B.Pharma is the qualification, which is mandated under the amended notification dt.06.02.2013, for preparation of merit and the select/merit list is to be prepared on the basis of the marks secured by the candidates in D.Pharma or B.Pharma, as the case may be and such bonus marks to be added as may be specified by the appointing authority, with which we are not presently concerned in the instant litigation.
The post of Pharmacist came to be notified vide advertisement dt.26.02.2013 and para-6 & 9 of the advertisement dt.26.02.2013 are the same very conditions of R.19 & schedule appended to the scheme of Rules, 1965, of which we have made a reference supra, is laid down for the purpose of preparation of select/merit list of the candidates who intended to participate along with bonus marks, as specified in the Rules.
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(i) ?????? ?? ???? ??????? ?? ??? ???????? ???????? ??? ????????? ??????? ???? ???? 1965 ?? ???? 19 ??? ???????? ?????????????? ?????? ??? ???????? ??????? ??????? ??????? ??? ??????? ???????????? ??? ???? ????? ?? ???? ?? ?????????? ????? ?????? ????(?????) ??? ???? ?????? ?
(ii) ?????? ???? ????? ???? ???? ????? ?????? ?????? ??? ???????? ??????? ??????? ??????? ?? ??????? ?? 70 ??????? ???? ?????? ??? ??????? ?? ??????? ????? ??? ????? ??????? ??????????? ?? ???? ?????? ??????-8(i) ?? ?????? ???? ????? ?? ??????? (?????? 30) ???? ?? ??? ?? ?????? ???? ???? ?????? ? ????????? ???? ?? ??? ???????? ???? ?????? ???? ????? ???? ?? ??? ??????? ???????? ??????? ??????? ??? ??????? ????????? ??????? ??????? ?? ????? ?? ????????? ??? ??? ?????? ?????? 6 ??? ???? ?? ???? ?? ?
(iii) ?????? ???? ??? ????? ??????????? ?? ??????? ???????? ???????? ???????, ????????? ???????, ???? ???????, ????? ?????? ???? ??? ????? ?????????? ?? ???????, ????? ???????, ?????? ?????? ???? ??? ????????? ?????? ???? ??? ?? ???????? ???? ???? ? '' Indisputably, B.Pharma or M.Pharma is a higher qualification than D.Pharma in the same stream and as come on record, D.Pharma is two year course, B.Pharma is four year course and those who did D.Pharma can certainly have an option to have a lateral entry in the second year of B.Pharma is which three year course and after this being finally held by Division Bench of this court, in the first round of litigation, of which a detailed reference has been made by us in the judgment, holders of B.Pharma or M.Pharma are to be considered eligible and permitted to participate for the post of Pharmacist under the scheme of Rules, 1965 and even in the present litigation, the eligibility of holders of B.Pharma & M.Pharma is not in question.
Proviso to R.19 of the scheme of Rules, 1965, as notified vide amendment notification dt.06.02.2013 mandates the appointing authority to prepare the merit of the candidates based on the marks secured in qualifying as specified in the schedule appended to the Rules and if R.19 is read with the schedule appended to the Rules, 1965, D.Pharma and B.Pharma, being in the same stream, is certainly qualifying as specified under the schedule appended to the Rules, 1965 and as per the scheme laid down by Pharmacy Council of India, Senior Secondary is the minimum academic qualification for entry to the Pharmacy Course and the students have option to either go in D.Pharma or B.Pharma which is two year & four year course respectively and Bachelor in Pharmacy (B.Pharma) are eligible to admit in Masters in Pharmacy (M.Pharma), this being the basic academic structure to become a Pharmacist and that has been taken care of by the rule making authority even while laying down the qualification for the post of Pharmacist, the post included in the schedule appended to the Rules, 1965 and keeping in view the eligibility for the post of Pharmacist read with proviso to R.19 of the Rules, 1965, the Committee constituted by the Government in unequivocal terms clarified that candidates of D.Pharma, their merit is to be prepared on the basis of the marks secured in D.Pharma and holders of B.Pharma, their qualifying marks in four years course shall be considered and such of the candidates who initially did D.Pharma and have a lateral entry in B.Pharma (3 year course), their marks secured in D.Pharma shall be considered for the purpose of preparation of merit, in terms of R.19 of the Rules, as notified vide amended notification dt.06.02.2013.
At the outset, we make it clear that the writ petitioner who questioned the procedure adopted by the respondents while preparing the merit list of the candidates is a holder of D.Pharma and had a lateral entry and qualified B.Pharma (3 year course), is not questioning the preparation of merit as he stands finally satisfied that his marks secured in D.Pharma be taken into consideration while preparing the merit list, as being considered by the ld.Single Judge and large number of candidates who are B.Pharma & eligible, as considered by the ld.Single Judge stands eliminated at the very threshold from the zone of consideration denying their right of fair consideration in the process of selection & appointment to the post of Pharmacist based on the merit to be prepared in terms of the R.19 of the Rules, 1965, as notified vide amendment notification dt.06.02.2013 and if that is the intent & purport of R.19, as observed by the ld.Single Judge, it will create an anomalous situation amongst the candidates who are held to be eligible and qualified for the post of Pharmacist, under the Rules, 1965 still are eliminated because of higher qualification but the State has taken note of and came forward with the policy for preparation of merit based on the marks secured in qualifying & as holders of D.Pharma & B.Pharma are considered eligible for preparation of their merit, as envisaged under proviso to R.19 of the Rules, 1965, as notified vide amendment notification dt.06.02.2013.
In our considered view one should always make an effort to interpret the Rules in a pragmatic manner which serves the purpose and save the provision as being framed by the rule making authority and the intention of the rule making authority appears to appoint those who are holders of D.Pharma and B.Pharma, which indisputably is a higher qualification in the same stream and any interpretation to the contrary would make provision to be harsh, oppressive and violative of protection conferred u/Art.14 & 16 of the Constitution.
In our considered view, interpretation should always be purposive and the holders of B.Pharma which is a four year course and higher in the stream in no manner could be eliminated from their fair consideration and to participate in the selection process initiated for the post of Pharmacist. We are of the considered view that the decision of the authority is in consonance and in conformity with R.19 of the Rules, 1965, as amended vide amendment notification dt.06.02.2013 and it certainly fulfills the requirement & mandate of Art.14 of the Constitution.
The judgment relied upon by the counsel for respondents of the Apex Court in State of Punjab & Others Vs. Anita and Others reported in (2015) 2 SCC 170 be of no assistance for the reason that apart from the academic qualification there was a requirement for the candidate of two years course of JBT Training for being appointed as JBT Teacher and those who are holding the qualification of B.Ed. or M.Ed. or other Post Graduate qualification, they were not in the same stream and the certificate which was required by the rule making authority of two years course in JBT Training was a required qualification for appointment of JBT Teacher and such specialized training is imparted to teach small children in primary school and such of the candidates who are holding the degree of B.Ed. cannot be held to be holding a qualification suitable for appointment as JBT Teacher in the primary school and the very premise which proceeded was that the B.Ed. degree is a higher qualification than the qualification which is required by the rule making authority i.e. two years course of JBT Training is completely a misnomer and there is no comparison between a specialized training and B.Ed. Course. In that context it was held by the Apex Court that it cannot be said that B.Ed. or other qualification like Post Graduation is higher qualification than TTC which are completely different in nature and the qualifications of B.Ed. or other qualifications like MA, M.Sc., M.Com., etc. cannot be treated as higher qualifications with reference to the prescribed qualifications i.e. JBT/ETT. If a qualification is acquired in the same faculty/stream, this may attract lower or higher qualification, as the case may be. Thus, in our considered view, if a person has acquired higher qualification in the same faculty/stream, such qualification can certainly be stated to presuppose the acquisition of the lower prescribed qualification.
Like in the instant case, D.Pharma is two year course and B.Pharma is four year course in the same stream and senior secondary is the minimum academic qualification for entry to the Pharmacy Course, the option is with the students to either opt for D.Pharma or B.Pharma and since the qualification which the candidates acquire after senior secondary i.e. D.Pharma or B.Pharma being in the same faculty/stream, holders of B.Pharma can certainly presuppose of the lower prescribed qualification and could not be disqualified from participation in the selection process and this what was finally held in the earlier round of litigation holding B.Pharma to be higher qualification in the same stream to be held eligible & participate in the selection process and holder of B.Pharma could not be eliminated under the amendment notification dt.06.02.2013, as being observed while preparing the merit/select list of the candidates based on the marks secured in their qualifying, as specified in the schedule appended to the Rules, 1965.
We further find substance in the submission made that the criteria adopted by the Committee to prepare the merit/select list of the candidates of D.Pharma & B.Pharma was never questioned before the ld.Single Judge and the limited issue was as to whether the candidates who are D.Pharma and thereafter by lateral entry qualified B.Pharma, how the merit of such of the candidates is to be prepared and was not open to the ld.Single Judge to question the criteria laid down by the Committee in preparing the merit list of the candidates participated in the selection process impugned in the instant proceedings.
Consequently, all the appeals deserve to succeed and are hereby allowed. The judgment of the ld.Single Judge dt.04.12.2015 is quashed and set aside and the respondents are directed to prepare the select/merit list of the candidates based on their decision dt.27.05.2015, reference whereof has been made by us supra, and publish the merit/select list and appointments be made in furtherance on the post of Pharmacist and the selection process, initiated pursuant to the advertisement dt.26.02.2013, shall be completed within four months.
No costs.
(J.K.RANKA), J. (AJAY RASTOGI), J. Solanki DS, P.S.