Allahabad High Court
Bharat Jee And 16 Others vs State Of U.P. And 2 Others on 29 January, 2021
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 796 of 2021 Petitioner :- Bharat Jee And 16 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Arun Kumar Soni Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties and perused the record.
By means of the present petition, the petitioners seek for quashing of the direction issued by the respondent no.2, i.e., the Deputy Secretary (Health), State of U.P. dated 07.12.2020 to the respondent no.3, the Director General, Medical Health and Services, U.P. Lucknow for filling up the vacant posts of pharmacists through the U.P. Sub-ordinate Services Selection Commission (UPSSSC), in view of the Government Order dated 15.12.2014.
It appears that the said letter was issued on a clarification sought by the Director General, Medical Health and Services, U.P. Lucknow vide letter dated 23.09.2020 whereby direction was sought for filling up the remaining vacancies.
Paragrah-' '1 of the said communication narrates the contents of the letter dated 23.09.2020 which records that the Pharmacy diploma holder, who had obtained their diplomas till the year 2002 had been adjusted/absorbed in the vacant posts of Pharmacist.
The petitioners herein (17 in number) state that they were appointed on vacant posts of Pharmacist as per the U.P. Pharmacist Service Rules, 1980 (hereinafter referred to as the "Rules, 1980") in the year 1995-97. In the year 2002, the U.P. Procedure for direct recruitment for Group-C post (outside the purview of the U.P. Public Service Commission) Rules, 2002 (hereinafter referred to as the "Rules, 2002") came into force. The petitioners had passed the examination of Diploma in Pharmacy between the year 2003-07 from the institutions which are registered with the U.P. Pharmacy Council, Lucknow. In the year 2007, an advertisement was published for direct recruitment to the post of Pharmacist. Some of the working pharmacists had challenged the advertisement dated 12.11.2007 on the ground that selection made on the basis of amended Rules, was bad and should be done as per the provisions of Rule 15(2) of the Rules, 1980. It was prayed that the selection should be made strictly batchwise from the pharmacists working and who had obtained Diploma in Pharmacy, irrespective of merit.
Vide order dated 23.05.2008, the learned Single Judge of this Court had dismissed the writ petition with the observation that the advertisement was perfectly justified. Some of the pharmacists had filed special appeals which were decided in a bunch with the leading Special Appeal No.377 of 2008 by judgement and order dated 04.05.2009.
A perusal of the said judgment indicates that the diploma holder pharmacists of different batches from the year 1992 to 2002 had approached this Court in the aforesaid special appeals with the plea that they had been deprived of appointment, as per the policy and process of selection, which was prevalent in the department, by selection proposed to be made in accordance with Rules, 2002 read with Rules of 2003. The prayer was to issue direction to prepare a select list for the vacancies advertised in accordance with the Rule 15(2) of the Rules, 1980 to accommodate them.
The Division Bench had disposed of the aforesaid special appeals with the following directions:-
"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.
All the special appeals are disposed of accordingly."
The matter went to the Apex Court and it was held in para '34' of the judgment and order dated 03.08.2010 in Special Leave Petition No.20558 of 2009 (State of UP & another vs. Santosh Kumar Mishra & another) reported in JT 2010 (8) SC 140.
"34. We, therefore, are of the view that in the facts of this case no interference is called for with the decision of the Division Bench of the High Court impugned in these SLPs. The 12 Special Leave Petitions filed by the State of UP, being S.L.P. Nos. 20558, 20769, 20774, 20785, 20901, 20908, 22655, 22678, 22732, 22851, 22955 of 2009, along with S.L.P.(C) Nos. 25647 and 25649 of 2009, filed by Vaibhav Kumar Singh and Ors. and Brijesh Kumar Sharma and others, whose cases are similar to that of the State of U.P., are dismissed, but without any order as to costs. Special Leave Petition (C) Nos. 22114 of 2009 and 32977 of 2009 filed by Ajay Singh and others and Shravan Kumar Pandey and others, stand allowed. The petitioners therein shall be entitled to the same benefits as those Diploma holders governed by the 1980 Rules, having obtained their Diplomas in Pharmacy prior to 1998. There will be no order as to costs in these S.L.P.s also."
The petitioners therein who had approached this Court before the learned Single Judge and the Division Bench, had been held entitled to the same benefits as those of the diploma holders who were governed by the Rules, 1980, having obtained their diplomas in Pharmacy prior to 1998.
Another Special Leave Petition (Civil) No.22590 of 2011 was filled against the judgement and order dated 12.07.2011 passed by this Court regarding appointment of pharmacist in the State of UP. It was observed in the judgement and order dated 29.02.2012 that after the decision of the Apex Court dated 03.08.2020, a select list was prepared on 14.02.2011 which was again challenged in the writ petitions filed before this Court. The Apex Court had observed that the special leave petitions came to be filed by the candidates who had not been selected for appointment on the ground that despite having better merit, they had not been selected for filling up of 766 vacancies. It was observed therein that the special leave petitions filed before the Apex Court was an attempt to re-open the issue. The special leave petitions were then dismissed and all pending applications were disposed of in view of the said decision.
It further appears from the record that in the judgement and order dated 27.11.2012 passed in the contempt petitions arising out of the decision in S.L.P. (C) No.20558 of 2009, it was observed as under:
"In Contempt Petition (C) No.347 of 2010, the complaint of the petitioners is that, despite our directions in S.L.P. (C) No.20558 of 2009 contained in Paragraph 32 of the said judgement, some of the candidates, who were covered by the decision, had been left out of consideration when the lists were finalised by the State Government with regard to the accommodation of the Pharmacists, both in regard to those who had qualified earlier than 2002 when the new Rules were introduced, and those who were amenable to the new Rules. The directions contained in our aforesaid jdugement were quite clear that we were treating those candidates, who had obtained Diplomas in Pharmacy prior to 2002, as one single group, and that it was also out intention that the benefits which were to be given to the petitioners before us were also to be given to similarly situtated candidates.
Today, when the matter is taken up, Mr. Irshad Ahmad, learned counsel appearing for the State of Uttar Pradesh and also for the alleged contemnors, has submitted that an affidavit has been fled by the Director General, Medical and Health Services, Uttar Pradesh, wherein in Paragraph 7, it has been indicated that, in terms of our jdugement, the respondents had prepared a merit list concerning candidates, who had obtained Diplomas upto the year 1998, but that the respondents-alleged contemnors were ready and willing to take into consideration those candidates who were similarly circumstanced upto the year 2002; when the new Scheme was sought to be introduced. Mr. Irshad Ahmad has also submitted that the said undertaking given to the Court shall be duly implemented within two months from date in keeping with the vacancies available. However, this should not be interpreted to mean that those who cannot be accommodated now will not be accommodated prior to those candidates who come within the zone of consideration by virtue of the Scheme of 2002. The second part of the list, which has been submitted on behalf of the State, shall not be given effect to, until these directions have been complied with.
All the contempt petitions are disposed of accordingly."
From a careful perusal of the above judgements of this Court and the Apex Court, it is evident that while disposing of the matter, the candidates who had obtained diploma up-to the year 1998, were directed to be accommodated. Further, on the statement made by the Director General, Medical and Health Services, U.P. on an affidavit, it was observed that the State was ready and willing to take into consideration those candidates who were similarly circumstanced up to the year 2002 when the new scheme was sought to be introduced. In the light of the said undertaking given before the Court, it was observed that the order of the Apex Court be implemented within two months from date in keeping with the vacancies available. It was clarified that the above directions shall not be interpreted to mean that those who could not be accommodated, now will not be accommodated prior to those candidates who came within the zone of consideration by virtue of the Scheme of 2002. The contempt petitions were disposed of, accordingly.
It is, thus, clear that the candidates who were working on the posts of Pharmacists and had obtained diploma in Pharmacy prior to the year 2002 were adjusted on the intervention of this Court and the Apex Court. This fact is also clear from the communication dated 07.12.2020 which is subject matter of challenge in the present petition.
The petitioners herein, as per their own assertions in the writ petition, had obtained diploma in Pharmacy in the year 2003 onwards. They, therefore, cannot seek selection on the posts of Pharmacist pursuant to the advertisement which was issued in the year 2007. The controversy in that regard had been brought to its logical end with the decision of the Apex Court, as noted above.
Learned counsel for the petitioner had further invited attention of the Court to page no. '199' of the paper book, which is an order of the Apex Court dated 03.12.2014 in the writ petition no.171 of 2013 connected with other writ petitions. The Apex Court had granted permission to the petitioners therein to withdraw their writ petitions with liberty to approach the High Court by filing an appropriate petition. It is contended that some of the petitioners/pharmacists herein had preferred the writ petitions under Article 32 of the Constitution of India before the Apex Court and they were granted liberty to approach this Court.
The judgment and order dated 03.12.2014 passed in the aforesaid writ petition has been made basis to maintain the present writ petition to challenge the communication dated 07.12.2020.
From the averments made in the writ petition, it is not clear as to whether the petitioners herein had approached the Apex Court and they were granted liberty. Moreover, liberty was granted to those persons who had approached the Apex Court in the year 2014.
The petitioners herein, however, have approached this Court in the year 2020 by filing a writ petition in the month of January, 2021 to challenge the decision taken by the respondent no.2 to notify the vacancies for making selection through the UP Sub-ordinate Services Selection Commission. It is not in dispute that the post of Pharmacist falls within the purview of the UP Sub-ordinate Services Selection Commission.
The petitioners cannot be permitted to challenge the process of selection initiated by the respondent through the UP Sub-ordinate Services Selection Commission which is competent to make recruitment, on the plea that in the earlier rounds of litigation, other similarly situated pharmacists had been given some relief.
The writ petition is found wholly misconceived and hence dismissed.
Order Date :- 29.1.2021 P Kesari