Himachal Pradesh High Court
Vandana Sharma vs State Of Himachal Pradesh on 10 December, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 10th DAY OF DECEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION (ORIGINAL APPLICATION)
NO. 1011/2020
BETWEEN:
VANDANA SHARMA,
DAUGHTER OF SH. PRAKASH CHAND,
RESIDENT OF VILLAGE KOTHI DOL,
POST OFFICE GOPALPUR,
TEHSIL SARKAGHAT,
DISTRICT MANDI, H.P.
.... PETITIONER
(BY SH. DEVENDER K. SHARMA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY (HEALTH)
TO THE GOVERNMENT OF HIMACHAL
PRADESH AT SHIMLA.
2. DIRECTOR,
H.P. HEALTH SERVICES DEPARTMENT,
SHIMLA-9.
3. HIMACHAL PRADESH SERVICE
SELECTION COMMISSION
HAMIRPUR THROUGH ITS
SECRETARY, TEHSIL AND
DISTRICT HAMIRPUR, H.P.
....RESPONDENTS
(SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE
GENERAL, FOR R-1 & R-2)
(SH. ANGREZ KAPOOR, ADVOCATE, FOR R-3)
RESERVED ON:8.12.2021.
___________________________________________________________________
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2
This petition coming on for admission after notice this
day, Hon'ble Mr. Justice Tarlok Singh Chauhan, passed the
following:
.
ORDER
Aggrieved by the rejection letter dated 7.3.2019 issued by respondent No.3, whereby candidature of the petitioner has been rejected on the ground that the registration of the petitioner as pharmacist was not with H.P. Pharmacy Council, even though she was duly registered with Union Territory Chandigarh Pharmacy Council, the petitioner has filed the instant petition for grant of the following substantive relief:
"that the impugned rejected letter dated 13.12.2019 i.e. Annexure A-6 may kindly be quashed and set aside and result dated 27.2.2019 (A.-5) be modified by offering appointment to the applicant in the interest of justice and fair play."
2 Respondent No.3 vide advertisement dated 8.9.2017 advertised 142 posts of pharmacist (Allopathy) to be filled up on contract basis. The petitioner applied for the same and was issued Roll No. 586006212 and appeared in the written test on 19.8.2018. The petitioner qualified the same and was called for evaluation along with following documents on 29.12.2018 vide letter dated 13.12.2018:-
::: Downloaded on - 31/01/2022 23:25:04 :::CIS 31. Download copy of your online recruitment application form for the post.
2. Certificate of Matric or its equivalent from a recognized Board/University.
.
3. Bachelor's Degree/Diploma in pharmacy or its equivalent from a recognized university or an institution duly recognized by the central/state government.
4. Registration Certificate registered with pharmacy council of the concerned State/Central Government, etc. and the same essential qualification was prescribed in the advertisement.
3 The petitioner accordingly submitted her testimonials as per instructions. Respondent No.3 declared result on 27.2.2019, but the name of the petitioner did not figure in list of successful candidates. It is later on that the petitioner received letter dated 7.3.2019 through post on 18.3.2019 issued by respondent No.3 informing her that candidature has been rejected on the ground that the diploma was not registered with H.P. Pharmacy Council. Hence, the petition.
4 Even though, respondents No. 1 and 2 have filed their reply, but they have simply washed away their responsibility stating therein that it is respondent No.3 alone, which was required to consider eligibility of the petitioner.
5 As regards reply of respondent No.3-Commission, a very strange stand has been adopted by it to support its action, ::: Downloaded on - 31/01/2022 23:25:04 :::CIS 4 wherein it has been stated that the petitioner had produced her certification of registration with Pharmacy Council Union Territory, Chandigarh, whereas her registration should have .
been with Pharmacy Council of Himachal Pradesh/Central Government. It is further submitted that as per the Pharmacy Act, 1948, as amended from time to time, there is a Central Council, constituted by Central Government with separate Central Register for Pharmacist at the Center Level and in the States, there are State Councils, which are required to maintain a register of pharmacist prepared and maintained r under Chapter-IV of the Act ibid. Therefore, mere registration with Union Territory Chandigarh Pharmacy Council does not fulfill the prescribed essential qualification inasmuch as to carry on business or profession of pharmacy, a candidate needs to be registered with Pharmacy Council of the concerned State where he/she resides or carries on business or profession of pharmacy.
6 To say the least, stand adopted by respondent No.3 cannot be countenanced.
7 As per letter dated 13.12.2018, registration certificate was required to be registered with the Pharmacy Council of the concerned State or Central Government and admittedly in the instant case, the petitioner was duly registered with Pharmacy Council Union Territory Chandigarh.
::: Downloaded on - 31/01/2022 23:25:04 :::CIS 58 As per Section 3(8) of the General Clauses Act, the Central Government shall include union territory and the same reads as under:-
.
(8) "Central Government" shall--,
(a) in relation to anything done before the commencement of the Constitution, mean the Governor General or the Governor General in Council, as the case may be; and shall include,--
(i) in relation to functions entrusted under sub-section (1) of section 124 of the Government of India Act, 1935, to the Government of a Province, the Provincial Government acting within the scope of the authority given to it under that subsection; and
(ii) in relation to the administration of a Chief Commissioner's Province, the Chief Commissioner acting within the scope of the authority given to him under sub-
section (3) of section 94 of the said Act; and
(b) in relation to anything done or to be done after the commencement of the Constitution, mean the President; and shall include,--
(i) in relation to functions entrusted under clause (1) of article 258 of the Constitution, to the Government of a State, the State Government acting within the scope of the authority given to it under that clause; 2***
(ii) in relation to the administration of a Part C State before the commencement of the Constitution (Seventh Amendment) Act, 1956, the Chief Commissioner or the Lieutenant Governor or the Government of a neighbouring State or other authority acting within the scope of the authority given to him or it under article 239 or article 243 of the Constitution, as the case may be; [and
(iii) in relation to the administration of a Union territory, the administrator thereof acting within the scope of the authority given to him under article 239 of the Constitution;
::: Downloaded on - 31/01/2022 23:25:04 :::CIS 69 The State includes union territory as is evident from Section 3(58) of the General Clauses Act, which reads as under:-
.
(58) "State"--
(a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and
(b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory.10
Once that be so, then obviously rejection of candidature of the petitioner can safely be held to be illegal, arbitrary and contrary to law.
11 In view of aforesaid discussions, we find merit in the instant petition and the same is accordingly allowed.
Consequently, impugned rejection letter (Annexure A-6) is quashed and set aside; and the respondents are directed to declare result of the petitioner and in case she is found to have qualified, then appointment be made to her from the same date when the candidates of selection in question were appointed, which, in no event, shall be later than 31.12.2021 and she shall be entitled to all other consequential benefits, save and except benefit of pay, which shall be granted to her from the date of her ::: Downloaded on - 31/01/2022 23:25:04 :::CIS 7 actual joining. Pending application(s), if any, also stands disposed of.
12 For compliance, list on 5.1.2022.
.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) 10.12.2021 Judge (pankaj) r to ::: Downloaded on - 31/01/2022 23:25:04 :::CIS