*THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+W.P. No. 10147 OF 2017
&
W.P. No.11003 OF 2017
% 20-01-2023
# I. Rajendra Prasad & others
....petitioners
Vs.
$ The Chairman & Managing Director, Singraeni Collieries Company Ltd.,
Kothagudem Collieries and others
.... Respondents
!Counsel for the petitioner : J. Sudheer
Counsel for the Respondents : B. Arjun, SC for Singareni Colleries
<Gist :
>Head Note:
? Cases referred:
1. 2021 AIR (SC) 2221
2 RRN,J
W.P.Nos.10147 & 11003 of 2017
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
W.P. No. 10147 OF 2017 & W.P. No.11003 OF 2017 Between:
I. Rajendra Prasad & others ....petitioners Vs.
The Chairman & Managing Director, Singraeni Collieries Company Ltd., Kothagudem Collieries and others .... Respondents ORDER PRONOUNCED ON: 20.01.2023 THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to see the fair copy of the Judgment? : Yes _____________________________________ NAMAVARAPU RAJESHWAR RAO, J 3 RRN,J W.P.Nos.10147 & 11003 of 2017 HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO WRIT PETITION No.10147 OF 2017 & WRIT PETITION No.11003 OF 2017 COMMON ORDER:
These Writ petitions are filed for the following relief:
"...to issue a Writ, Order or Orders more particularly one in the nature Writ of Mandamus declaring that the petitioners are eligible and entitle for appointment to the post of Pharmacist with the higher qualification of B. Pharmacy as per merit obtained in the written test and as per the offer of appointment order dated 09.03.2017 issued by the 2nd respondent by taking into consideration of the Ad-hoc rule issued vide GO.Ms.No.282 GAD dated 20.09.2003 and the law laid down by the Hon'ble Apex Court as well as this Court and consequently direct the respondent to issue final appointment orders to the petitioners as Pharmacists with all consequential benefits, by holding the action of the respondents in not appointing the petitioners on the sole ground that the petitioners possessed the higher qualification of B.Pharmacy than that of the prescribed minimum qualification of Diploma in Pharmacy is as illegal, arbitrary, discriminatory and subversive of Articles 14, 16 of the Constitution of India and pass...."
2. Since the facts of the case and the issue involved in both these Writ Petitions are identical, these Writ Petitions are taken up together and are being disposed of by this common order.
3. For convenience, the facts in W.P.No.10147 of 2017 are discussed hereunder:
4 RRN,J W.P.Nos.10147 & 11003 of 2017 The petitioners have contended that they have completed their B.Pharmacy Degree from Kakatiya University, Warangal, and they are eligible for selection to the post of Pharmacist. As per the notification No.1/2016 of the 1st respondent, the petitioners have applied for the post of Pharmacist. As per notification, the minimum qualification prescribed for the said post is Diploma in Pharmacy. It is also clear from the application form against the column of the examination passed is diploma / graduation / PG. And against the column of prescribed qualification, is a diploma in Pharmacy. As per the column of examination passed, it is very clear that B.Pharmacy candidates are also eligible to apply to the post of Pharmacist. 3.1 Petitioners have further contended that they were permitted to appear for written examination and they have secured 78.66 and 86.00 respectively out of 100 marks. A provisional merit list of candidates was published which includes the names of the petitioners at Sl.No.4 and 1 respectively. The final selection list was published on 06.03.2017 wherein the petitioners' names were shown at Sl. No.5 and 1 respectively. According to this, the 2nd respondent 5 RRN,J W.P.Nos.10147 & 11003 of 2017 had issued a provisional offer of appointment order dt.09.03.2017 directing the petitioners to appear before them on 24.03.2017 for verification of certificates. However, in clause-8 of the offer of appointment order dated 09.03.2017, it was stated that "if you are possessing the qualification other than the qualifications prescribed/notified in the notification No.01/2016 for the posts of Pharmacist, your candidature will not be considered during the verification of original certificates, as such, you are informed to ensure the eligibility parameters in all aspects including qualification before reporting for verification of original certificates on 24-3-2017." 3.2 It is further contended by the petitioners that along with the offer of the appointment order, the respondents also enclosed Annexure-I, i.e. terms and conditions of appointment, wherein, it is clearly mentioned that the petitioners are provisionally appointed as Pharmacist on a basic pay of Rs.17,605.41. Later, the petitioners approached the 2nd respondent/General Manager and informed that they possess the qualification of a B.Pharmacy, but surprisingly, the respondents informed the Petitioners that they will not be 6 RRN,J W.P.Nos.10147 & 11003 of 2017 considered for the said post, as they did not have the minimum qualification of Diploma in Pharmacy, though they possess the higher qualification of B.Pharmacy. Aggrieved over the same, the petitioners are before this Court.
4. Learned standing counsel appearing for the respondents file counter denying the allegations stating that that the respondent Company has issued an External Notification No.01/2016 inviting applications for the post of Pharmacist, NCWA Grade-D, fixing the qualification as "Diploma in Pharmacy (with Registration from Pharmacy Council of India)". The petitioners have gone through the guidelines and submitted their candidature mentioning their qualification as "Diploma in Pharmacy" which is a two years course. However, the petitioners have suppressed the fact that they have completed the course of B.Pharmacy Degree instead of Diploma in Pharmacy as notified in the Notification and made the wrong entry as a 'Diploma in Pharmacy' in the online application, to validate their application for the said post. 4.1 It is further contended by the respondents that though it is mentioned clearly in the call letters that "if selected 7 RRN,J W.P.Nos.10147 & 11003 of 2017 for the Pharmacist Post and possessing the qualification other than the qualification prescribed in the Notification No.01/2016, the candidature will not be considered", the petitioners ignored the said conditions stipulated and inscribed their signatures on the Call Letter accepting the terms and conditions mentioned therein.
4.2 It is further submitted by the respondents that if the candidature of the petitioners is considered, litigation may arise from the candidates who completed a B.Pharmacy degree and did not appear for the written test scheduled on 12.02.2017 and the setting of question paper for the post of Pharmacist is purely based on the qualification mentioned in notification i.e. Diploma in Pharmacy and not based on the B.Pharmacy. Accordingly, prayed to dismiss the Writ Petition.
5. Heard Sri CH. Jagannatha Rao, learned counsel appearing for the petitioners and Sri B. Arjun, learned Standing Counsel appearing for the respondents. Perused the record.
6. This Court vide interim orders dt.22.03.2017 in W.P.M.P No. 12568 of 2018 observed as follows:
8 RRN,J W.P.Nos.10147 & 11003 of 2017 "The larger issue as to whether mere possession of higher qualification than prescribed qualification would entitle a candidate to compete requires consideration in the writ petition. Since 7 vacancies of Pharmacists are notified, granting of stay even to the extent of two vacancies would not be in the larger interest of the respondent employer as well as the employees of the respondent company for whose benefit the pharmacy counters are operated. Balance of convenience is not in favour of the petitioner. However, the selected candidates should be informed about the pendency of the writ petition and their appointment shall abide the result of the writ petition. In the event, petitioners succeeding in the writ petition, it should be the obligation of the respondent company to provide employment to the petitioners with protection of seniority and other benefits as per their merit. Accordingly, WPMP is disposed of."
As such, the issue for consideration now before this Court is with regard to the following two aspects:
i) Whether the B.Pharmacy graduated candidates are also eligible to apply to the post of Pharmacist under the Notification 01/2016 of the 1st respondent?
9 RRN,J
W.P.Nos.10147 & 11003 of 2017
ii) Whether the candidates holding higher qualification than
that of the prescribed qualification are entitled for appointment to the post of Pharmacist under the Notification 01/2016 of the 1st respondent?
7. In answer to the first point, it is necessary to analyse the material placed before this Court, viz., the Notification 01/2016 of the 1st respondent, the online application data sheet of the petitioners and the Provisional Offer of Appointment Order dt.09.03.2017.
The tabular form of the Notification 01/2016 of the 1st respondent at page No.5 with SL.No. 07 i.e with respect to the post of Pharmacist is extracted as hereunder:
SL. NO NAME OF THE POST, GRADE, MINIMUM QUALIFICATION, NO. OF VACANCIES, ROSTER EXPERIENCE & DESCRIPTION MAXIMUM AGE 07 PHARMACIST DIPLOMA IN PHARMACY (WITH NCWA, GRADE-D REGISTRATION FROM PHARMACY RS.17605.41. COUNCIL OF INDIA).
TOTAL VACANCIES : 7
(UNRESERVED (OPEN TO AGE: MINIMUM 18 YEARS AND
ALL I.E. LOCAL & MAXIMUM 30 YAERS. THE AGE IS
NON-LOCAL): 1 VACANCY, RECKONED AS ON 01.06.2016
(BCBW-1) (HOWEVER, SC, ST, BC
LOCAL -: 6 VACANCIES CANDIDATES WILL HAVE 5
(OC-2; OCW-1; BCB-1; YEARS AGE RELAXATION OF
SCW-1; ST-1) UPPER AGE LIMIT I.E, 30+5=35
YEARS AS ON 01.06.2016).
10 RRN,J
W.P.Nos.10147 & 11003 of 2017
8. A bare reading of column No.3 shows that it is mentioned as a Minimum qualification. When they mentioned Minimum qualification, it is deemed that there would be Maximum qualification. Coming to the Online Application, the Data Sheet of the petitioners and the relevant tabular form i.e the Educational Qualifications portion is extracted as hereunder:
Educational Qualifications Examination Passed: Diploma/Graduation/PG Prescribed DIPLOMA IN PHARMACY Qualification:
Subject: N/A
Name & Place of Kakatiya wgl
University/Board:
%age of Marks: 68.30
Year of Passing: 2010
Duration of Course 4
9. The second column shows the passing of the
examination...Diploma/Graduation/PG and prescribed
qualification is mentioned as Diploma in Pharmacy. When it is their contention only the candidates who passed Diploma in Pharmacy are eligible to apply for the post of Pharmacist, they would not have mentioned Diploma/Graduation/PG. Moreover, the petitioners have mentioned the duration of the course as 4 11 RRN,J W.P.Nos.10147 & 11003 of 2017 years, and when the course for Diploma is for two years, they ought not to have accepted the applications of the petitioners.
10. Learned counsel appearing for the petitioners contended that the petitioners are entitled to be appointed in the post of Pharmacist as per the notification 01/2016 of the 1st respondent. He relied upon the Ad-hoc rule under Article 309 if the Constitution of India vide G.O. Ms No.282, General Administration Department, dt.20.09.2003 which is as follows:
"Notwithstanding anything contained in the Andhra Pradesh State and Subordinate Service Rules or Special Rules or any other rule governing the post for the Direct Recruitment the candidate who possesses higher qualification than the prescribed qualification and the candidate with higher qualification without the prescribed qualification shall also be considered for selection along with candidates who have the prescribed qualification only."
In view of the above Ad-hoc, the petitioners are eligible to be appointed as Pharmacists.
11. Learned counsel for the petitioners also relied upon the Notification dt.04.01.2017 issued by the District Medical & Health Office, Hyderabad, wherein at column No.5 is shown as under:
12 RRN,J
W.P.Nos.10147 & 11003 of 2017
S. Name of the Qualification Eligibility Pay Total posts
No. post allotted sanctioned
5 Pharmacist a. Intermediate 11,000/- 85
b. D. Pharmacy/B. Pharmacy
c. Must be registered with the
Pharmacy council.
As seen from the above, the Government itself declared that the post of Pharmacist can be filled up by a candidate who possesses either D. Pharmacy / B. Pharmacy which goes to show that the petitioners are eligible for the post of Pharmacist. However, the respondents are in contradiction with the above said notification.
12. Learned counsel for the petitioners has relied upon the judgment of the Hon'ble Supreme Court in the case of Puneet Sharma Vs. Himachal Pradesh State Electricity Board Ltd.,1 wherein it was held that even for the post of Junior Engineers, those individuals holding higher qualifications are eligible to compete and directed the respondent to process candidature of all applicants, including degree holders who participated and depending on relative 1 2021 AIR (SC) 2221 13 RRN,J W.P.Nos.10147 & 11003 of 2017 merits, proceed to issue final selection list of all successful candidates, after holding interviews. In this case also, the Hon'ble Supreme Court considered the persons with higher qualifications to be eligible for the post specifying a lesser qualification.
13. However, on the other hand, the learned counsel appearing for the respondents vehemently argued that the petitioners appeared for certificates verification pursuant to receiving a Provisional Offer of Appointment Order and when the same were verified, it came to the notice of the respondents that the petitioners do not possess the prescribed qualification i.e Diploma in Pharmacy and they have suppressed the information that they possessed B. Pharmacy. As such, the petitioners were denied the appointment.
14. In view of the foregoing discussion in the above paras, it cannot be found fault with the petitioners and this Writ Petition is liable to be allowed.
14 RRN,J W.P.Nos.10147 & 11003 of 2017
15. Accordingly, these Writ Petitions are allowed by directing the respondents to appoint the petitioners as Pharmacists as per the offer of appointment order dated 09.03.2017 issued by the 2nd respondent with protection of seniority and other benefits as per the merit. No order as to costs.
As a sequel thereto, miscellaneous applications, if any, pending in these writ petitions, shall stand closed.
___________________________________ NAMAVARAPU RAJESHWAR RAO, J 20th day of January, 2023 BDR