Allahabad High Court
Vijai Shanker Pandey S/O Vidyadhar ... vs Director Of Ayurvedic And Unani ... on 23 May, 2007
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. The perinial grievance of illegal appointment of candidates who secured less marks than the petitioner ignoring the legitimate claim of the petitioner has fallen for determination in the present writ petition under Article 226 of the Constitution at the instance of the petitioner.
3. As per averments contained in the writ petition, it appears that the petitioner is Science graduae (B.Sc). He is also holder of Diploma in Pharmacist from Board of India Medicine Board, U.P., Lucknow (for short 'Board') and is also registered with the Board w.e.f. 11.6.1987.
4. It appears that in response to an advertisement dated 29.6.1989 inviting applications for the post of Ayurvedic Pharmacist, the petitioner applied. He was called for interview, scheduled to be held on 26.9.90 at Ayurvedic Evam Unani Aushadhi Parikshan Prayogshala, Sector 19, House No. 768, Ring Road, Indira Nagar, Lucknow vide letter dated 1 1.9.1990.
5. The petitioner also participated in the interview but without preparing any select or merit lists, respondent No. 1- Director of Ayurvedic and Unani Services, U.P., Lucknow, who is appointing authority for the post of Ayurvedic Pharmacist, letters of appointment were issued to various candidates who had not qualified in the interview or had earned lesser marks thin the petitioner.
6. Some candidates instituted Civil Misc. Writ No. 7323 of 1991-Tribhuwan Chauhan and Ors. v. Ayurvedic and Unani Services. U.P. Lucknow and Ors. which was decided on 13.7.92 (reported in 1992 UPLBEC-1562) in which direction was issued to respondent No. J to act in accordance with Jaw.
7. One Sri Chandra Bali Yadav moved representation dated 7.4.1993 together with the copy of aforesaid judgment dated 13.7.92 before respondent No. 1.
8. The petitioner claims that he and Sri Chandra Bali Yadav personnalty met respondent No. I and prayed for selection and appointment on the post of Ayurvedic Pharmacist but their effor went in vain compelling the petitioner to file Civil Misc. Writ No. 14102 of 1994- Vijai Shankar Pandey and Ors. v. Director of Ayurvedic and Unani Services, U.P. Lucknow and Ors. which was disposed of vide judgment and order dated 30.3.1994 directing respondent No. 1 to decide representation of the petitioner within a month from the date of production of the judgment.
9. It is stated by the petitioner that he personally served the certified copy of the judgment and order of this Court dated 30.3.1994 along with representation and other requisite documents upon respondent No. 1 on 22.4.1994 followed by registered reminder letter dated 26.5.94. When no action was taken by respondent No. 1, the petitioner was compelled by the circumstances to file Contempt Petition No. 1349 of 1994- Vijay Shankar Pandey v. Dr.Sheo Raj Singh. Director. Ayurvedic and Unani Services U.P., Lucknow. An interim order dated 18.8.94 was passed by this Court in the aforesaid contempt petition directing Dr. Sheo Raj Singh, Director Ayurvedic and Unani Services, U.P., Lucknow to comply with the order of this Court dated 30.3.1994, When respondent No. I was served with the aforesaid order dated 18.8.1994 passed by this Court, he directed the petitioner vide letter dated 6.9.94 to make available certified copy of the aforesaid order of [his Court. The direction was complied with by the petitioner.
10. Interestingly enough, on the one hand, the impugned order dated 16.9.1994 was passed by the respondent No. 1 rejecting the representation of the petitioner solely on the ground that the petitioner was not selected in the selection held in 1990 and on the other hand. Sri Chandra Bali Yadav, who was petitioner No. 2 in Civil Misc. writ No. 14102 of Y994 along with petitioner and had not been selected along with the petitioner, was appointed as Aurvedic Pharmacist. Thereafter, the respondent No. I also appointed one Sri Akhilesh Kumar Singh on the same post vide letter of appointment dated 28.9.1994.
11. It is alleged that no fresh selections were held after 1990 and the respondent No. I issued appointment letters lo various candidates, such as 'Sri Subhash Chandra son of Sri Indra Jeet (who is allegedly failed in 3 papers in Pharmacist's examination; reappeared in supplementary examination and again failed in one paper and could pass the examination in four attempts) and who had secured less marks than the petitioner in the selection held in 1990.
12. Aggrieved by the aforesaid illegal and arbitrary action on the part of respondent No. I. the petitioner has come up in this writ petition.
13. It is specifically averred in the writ petition that S/Sri Chandra Bali Yadav. Akhilesh Kumar Singh and Subhash Chandra had secured less marks than the petitioner in the examination held in 1990 and despite the fact that the petitioner was more meritorious, his claim was ignored and candidates having less merit, were appointed.
14. Curiously enough, in paragraphs 5.7.8 and 9 of the counter affidavit filed on behalf of respondent Nos. I and 2. it has been candidly admitted that the then Director late Dr. Shiv Raj Singh made illegal appointments in Croup C and Group D posts in 1990 without following the procedure of selection. For ready reference, paragraphs 7 and 8 are being reproduced below:
7. That in reply to the contents of paragraph No. 18 of the petition, it is submitted that in the year 1990 then Director late Dr. Shiv Raj Singh made appointments in large numbers against the Group C and Group D posts without following the procedure of seletion in iregular manner. Subsequently the services of all these irregular appointees were dispensed with and being aggrieved against which most of the employees filed various writ petitions before the Hon'ble Court and incompliance of various directions and orders passed by the Hon'ble Court the then Director again taken bafk these employees in their services without bringing all factual aspects before the Hon'ble Court. It is further submitted that similarly the trained Pharmacists were appointed against 'Group. C posts without following' the selection procedure prevalent at that time as during said period recruitment was required to he made by holding interview and selection was required to he made on the basis of eligibilty and merit and which was not followed by the then respondent No. 1.
8. That the contents of paragraph 19 of the petition are not admitted as stated being highly misconceived, misleading incomplete and incorrect and hence are denied. In reply thereto it is submitted that at present the respondent No. I has not been "authorized to make direct appointments against the post of trained Pharmacist as the State Government vide notification dated 23rd February, 2006 has constituted 'U.P. Subordinate Services Selection Commission Lucknow' for appointment against the post of Subordinate Services in the State of U.P. And the selection proceedings are being conducted by the said Commission. It is relevant to mention here that for appointment of Pharmacists Ayurvedic and Pharmacists Unani against the 190 and 67 posts respectively, the requisition has already been sent to said Commission for holding the recruitment of Pharmacists Ayurvedic/Unani. The photostat copy of said requisition sent to 'U.P. Subordinate Services Selection Commission, Lucknow' is being filed herewith and is marked as Annesxure No. C.A. I to this counter affidavit, contents of which form the part of present paragraph.
(emphasis supplied)
15. Paragraphs 5 and 9 are verbatim and substantially the same as paragraphs 7 and 8 quoted above.
16. Thus, a perusal of above averments made in the counter affidavit, it reveals that the respondents have candidly admitted that late Dr. Shiv Raj Singh, the Director made illegal appointments.
17. Now the question for consideration is that after issuance of Government notification dated 23.2.2006 constituting U.P. Subordinate Services Selection Commission. Lucknow, can the petitioner be appointed on the basis of interview held in 1990'
18. Admittedly, in 1990, appointments were being made on the basis of interview. U.P. Subordinate Services Selection Commission. Lucknow has been constituted in pursuance of notification dated 23.2.2006 and has come into existence after February 2006. Therefore, in my opinion the rule and procedure at the relevant point of time would be applicable. Moreover, the petitioner had approached this Court in writ petition as well as in contempt application and was aware of the rights. If other candidates who had filed writ petitions along with the petitioner have succeeded and even those who had admittedly as per averments made in the counter affidavit had been illegally appointed by late Dr. Shiv Raj Singh. Director of Ayurvedic and Unani Medicines having less marks-and being unqualified, 1 see No. reason to discriminate the petitioner who has secured moe marks than the candidates appointed by the then Director and is also qualified for the post. The representation of the petitioner has been illegally rejected stating that he had not qualified in the interview particularly when the then Director made appointment by pick and choose of candidates in which he was interested. The specific plea of the petitioner that the candidates who were less meritorious than him were given appointment ignoring his claim has not been denied by the respondents. It is also admitted fact that the then Director Dr. Shiv Raj Singh had made illegal appointments. Had petitioner been appointed in 1990 itself in accordance with his position in the merit list, he would have served the department for about 17 years by now. Therefore, the interest of justice demands that the petitioner, who must have crossed the upper age limit for appointment to the post in question, should not suffer for the illegal and arbitrary act of the then Director late Sri Shiv Raj Singh.
19. For what has been discussed above, the writ petition deserves to be allowed.
20. Accordingly, the writ petition succeeds and is allowed. Impugned order dated 16.9.1994 passed by the respondent No. 1 is quashed. The respondent No. 1 is directed to issue letter of appointment to the petitioner in case his name figures in the merit list/select list of the examination/interview held in 1990. It is further directed that in view of the averments made in the counter affidavit. State Government mus initiate vigilance enquiry within a period of one year from today in respect of moveable and immoveable properties of late Dr. Shiv Raj Singh, disproportionate to his source of income as after his death, departmental proceedings are not possible. No order as to costs.