Sanjay Kumar Sonkar And 7 Ors. vs State Of U.P. Thru ...
2017 Latest Caselaw 6935 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

[A.F.R.]
 

 
[Reserved On 10.10.2017 ]
 
[Delivered on 16.11.2017]
 

 
Court No. - 19
 
	Case :- SERVICE SINGLE No. - 18610 of 2016
 
	Petitioner :- Sanjay Kumar Sonkar And 7 Ors.
 
	Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Medical & 	Health &Ors.
 
	Counsel for Petitioner :- Vidhu Bhushan Kalia
 
	Counsel for Respondent :- C.S.C.
 
AND
 
	Case :- SERVICE SINGLE No. - 2772 of 2016
 
	Petitioner :- Kuldeep Mani Tripathi And 10 Ors.
 
	Respondent :- State Of U.P.Thru Prin.Secy.Deptt.Of Medical & 	Health & Ors.
 
	Counsel for Petitioner :- Vidhu Bhushan Kalia
 
	Counsel for Respondent :- C.S.C.,Dharmendra Kumar Tripathi,Dr 	L.P.Mishra,U.N.Misra,Upendra Nath Mishra
 
Hon'ble Vivek Chaudhary,J.

1. These writ petitions are filed challenging the list for appointment dated 26.7.2016, issued by the Director Para-Medical and Health Services, U.P., of Pharmacy Diploma Holders. The said list is claimed to be issued as per and in compliance of the order of Apex Court passed in an earlier Special Leave Petition and contempt petitions, a fact disputed by the petitioners.

2. The dispute of pharmacists was decided by this Court by its judgment dated 4.5.2009 in Special Appeal No.377 of 2008, which thereafter reached the Apex Court and was decided by judgment dated 3.10.2010 in leading Special Leave Petition No.20558 of 2009 along with other connected matters (reported in 2010 (9) SCC 52 State of U.P. and others. Vs. Santosh Kumar Mishra and another). Some of the relevant paragraphs of the aforesaid judgment would explain the facts and dispute involved:-

"1. The same criteria differently applied at two different points of time leading to different results and consequences, is the problem we are faced with in these special leave petitions. The same principles which were applied in the case of the respondents to deny them the benefit of appointment, were not given effect to when it came to their turn to get the benefit thereof.

2. In order to appreciate this unusual situation, it is necessary to relate some of the relevant facts of these cases. The respondents have passed the diploma course in Pharmacy from different institutions which have been recognized by the Pharmacy Council of India and are also registered with the State Pharmacy Council of U.P. Their claim is for selection and appointment to the post of Pharmacist, which is governed by the U.P. Pharmacists Service Rules, 1980 (hereinafter referred to as the "1980 Rules").

3. According to respondents, under Rule 15(2) of the 1980 Rules, all diploma holders were required to be appointed against the vacancies which became available in each recruitment year by first appointing those Pharmacists who had obtained their diplomas earlier. They claim that appointment to the post of Pharmacist should be made batchwise from each year and that the vacancies which had accrued, should be filled up by giving appointment to those Pharmacists according to the dates on which they had obtained their diplomas, irrespective of their merit. According to the respondents, till those belonging to the earlier batches were not considered and given appointments in such vacancies, the diploma-holders of the subsequent batches should not be given appointment, irrespective of their merit.

4. The aforesaid controversy was triggered by an advertisement dated 12-11-2007, whereby 766 vacancies were advertised for being filled up by diploma holders. The advertisement provided that the recruitment would be made in accordance with the U.P. Procedure for Direct Recruitment of Group `C' Posts (Outside the Purview of Public Service Commission) Rules, 2000, as amended by the U.P. Procedure for Direct Recruitment of Group 'C' Posts (Outside the Purview of Public Service Commission) (First Amendment) Rules, 2003, and the relevant Service Rules in force with regard to educational qualifications and other conditions of service.

5. According to the respondents, on an interpretation of Rule 15(2) of the 1980 Rules by the State Government, they were entitled to be selected and appointed first on the vacancies advertised, as they belonged to previous batches and were denied appointment by the State Government earlier on the plea that notwithstanding their merit being superior to those of some of the diploma holders, who had obtained diploma prior in point of time, the latter candidates were to be given appointment first. As a result, those diploma holders, who had obtained diploma before the Respondents, were adjusted against the vacancies first, irrespective of their merit vis-`a-vis the diploma holders of subsequent batches and the said practice was continued till 2002. However, when the fresh vacancies were declared and the Respondents were to be appointed on the same principle and practice, they were denied the benefit of the same citing the 1980 Rules read with Rules of 2002, as amended by the Rules of 2003.

6. According to the respondents, it was not open to the State Government to take a different stand in interpreting the Rules to severe prejudice of the respondents' right to appointment, though similarly situated persons have been given the benefit of the said Rules and whereunder the Respondents had been denied appointment when their turn came to be appointed.

7. Questioning the said discriminatory and arbitrary treatment, the respondents herein moved several writ petitions before the Lucknow Bench of the Allahabad High Court for quashing the above- mentioned advertisement dated 12-11-2007 and for a writ in the nature of mandamus to command the petitioners herein to make recruitment to the vacant posts of Pharmacists strictly in accordance with Rules 14 and 15 of the 1980 Rules, by specifying the vacancies yearwise, and, thereafter, appointing the writ petitioners to the post of Pharmacists after providing for age relaxation. A further prayer was made in one of the writ petitions [Writ Petition No.7771 (SS) of 2007] to declare Rule 5(2)(iv)(b) of the amended Rules as ultra vires.

8. After a detailed consideration of the rules and the existing procedures, the amended Rules were held to be intra vires. Considering the same, the petitioners herein were competent to issue the advertisement and to constitute a Selection Committee in terms of Rule 6 of the 2002 Rules and the First Amendment Rules 2003. It was, however, also indicated that until and unless clause (a) of sub-rule (3) of Rule 5 of the 2003 Rules was amended, selection could not be undertaken by computing the marks as per the procedure prescribed therein and selection had to take place as per the provisions of Rule 15(2) of the 1980 Rules on the basis of the marks obtained in the Pharmacy Diploma examination.

9. The said order of the learned Single Judge was challenged by the respondents herein in several writ appeals before the Division Bench of the Lucknow Bench of the Allahabad High Court. Taking notice of the peculiar situation which had developed on account of the differing interpretations of the Rules in question, the Division Bench very succinctly summarized the issue in the following words:

"A peculiar and a piquant situation has arisen in the instant case, where it is not the case that an aspirant of the higher post in service on becoming eligible for promotion or a person seeking direct appointment on the date when he is to be considered for such a promotion or appointment, seeks to interpret the rule of recruitment in a particular manner, looking to the past practice, to his advantage, but here is a case where the appellants were excluded from consideration of their appointment at the relevant time earlier, by interpreting the rule to their disadvantage, and were made to believe that likewise their candidature shall be considered later on, for which various circulars and instructions were also issued by the State Government, but when their turn came for getting employment, they were again being put out of consideration, by interpreting the rule in a different manner."

10. On the basis of its aforesaid observations, the Division Bench disposed of the several appeals with a direction that the case of the Appellants therein would be considered in accordance with pre-existing practice by considering their appointment on the basis of their merit taking their objects into consideration as was being done earlier, but this process would be available only for said appellants. They would be accommodated if they were otherwise found eligible and the remaining vacancies would be filled in by following Rule 15(2) strictly as directed by the Single Judge. A direction was also given to the respondents in the said appeals to give age relaxation to the said appellants as per the Rules, if they had crossed the age limit, for the reason that right from the year 1998 no selection had been made and in certain cases, age relaxation had already been given. A further direction was given to complete the selection process within three months from the date of receipt of a certified copy of the order"

3. Apex Court after considering the entire matter, reached on the following conclusions:-

"40. In our view, the learned Single Judge while deciding the various writ petitions filed by the private respondents herein and allowing the benefit of relaxation of age, erred in directing that the selections of even the said Respondents were to be made strictly on the criteria of merit, irrespective of the batch in which the incumbents had obtained their diplomas in Pharmacy. The said error was rightly corrected by the Division Bench in the Special Appeals, which had been filed, which is reflected in the extract of the impugned judgment set out hereinbefore. The Division Bench quite rightly held that the injustice caused to the private respondents on account of the interpretation of the Rule to their disadvantage at a subsequent stage by the State Government, required to be corrected.

41. It is on account of a deliberate decision taken by the State Government that the private Respondents were left out of the zone of consideration for appointment as Pharmacists in order to accommodate those who had obtained their diplomas earlier. The decision taken by the State Government at that time to accommodate the diploma-holders in batches against their respective years can no doubt be discontinued at a later stage, but not to the disadvantage of those who had been deprived of an opportunity of being appointed by virtue of the same Rules. In our view, the same decision which was taken to deprive the private Respondents from being appointed, could not now be discarded, once again to their disadvantage to prevent them from being appointed, introducing the concept of merit selection at a later stage. The same may be introduced after the private respondents and those similarly-situated persons have been accommodated.

42. The various decisions cited by Ms. Dikshit are of little help to the case of the Petitioners. The facts in the case of Suraj Prakash Gupta bear no comparison to the facts at issue in these Special Leave Petitions. There can be no divergence of opinion with regard to the principles of law laid down in the said decision, but the same was referred to in the facts of that case, where it was held that in the absence of any provision for rotation in the Rules, the same could not be claimed on the basis of the past practice.

43. As indicated hereinbefore, in this case a certain set of Rules were applied in a manner which deprived the private Respondents of an opportunity to be considered for appointment as Pharmacists, despite having acquired the requisite qualification and being deprived of appointment once again by discarding the same Rules to their detriment. In our view, the decision in N. Suresh Nathan is more apposite to the facts of this case. Of course, this is not a case for applying the "doctrine of past practice" alone, in addition, this is a case which involves the deprivation of certain candidates by application of the procedure differently at two different points of time.

44. 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 U.P., being SLPs Nos. 20558, 20769, 20774, 20785, 20901, 20908, 22655, 22678, 22732, 22749, 22851, 22955 of 2009, along with SLPs (C) Nos. 25647 and 25649 of 2009, filed by Vaibhav Kumar Singh and others 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.

45. 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 SLPs also."

4. Repeated orders were passed in contempt petitions as State was not following the directions given. Ultimately, the State complied with the directions and made appointments. The dispute in the present writ petitions, between the petitioners and the private respondents, appears to be the last of the compliance of the aforesaid judgment of the Apex Court.

5. The peculiar facts involved in the present writ petition, between the petitioners and the private respondents arise as, while in rest of the years, only one class of Pharmacists passed out from the Institution in a year, however, in the State of Karnataka Class-F was supposed to have given its examination of second year/final year in the year 2001 and Class-G was also supposed to have given examination of final year in the year 2002. The petitioners also claim that in fact final year examinations of Class-F were held in December, 2001. However, in their result, the same is noted as examination of January, 2002. Class-G admittedly gave examination in December, 2002. Thus, it appears that two Classes (Class-F and Class-G) passed their examination in a same year i.e., 2002, only. Thus, State Government treated them to belong to a same Batch of 2002. The State Government on the basis of the inter se merit of all these persons, prepared their merit list for appointments. The impact is, that though all the persons are offered appointments, but, more meritorious persons of the Class-G have been placed higher in merit list than less meritorious persons of Class-F. The petitioners, thus, have challenged the same claiming that since they are from Class-F, they should be treated as a separate Batch and placed on better seniority, on the basis of inter se seniority of Class-F alone and should not be clubbed with Class-G. The stand of the State respondents as well as the private respondents is that traditionally a batch was always fixed yearwise. Those persons who gave examination in a particular year, were always treated to be of the same batch, for the purpose of appointment in service, and hence all those persons who gave examination in the year 2002 are rightly clubbed together and given appointment on basis of their merit. Thus, the only adverse impact which visits the petitioners is their lower placement in the list and the challenge to the impugned order is to that extent only and not to any appointments, as they all stand appointed in service. Both the parties agree that it is not the result of the examination or their registration as Pharmacists which is relevant, in view of the earlier judgment and orders passed by this Court as well as by the Apex Court, but the year of final examination, which they passed.

6. Petitioners' challenge to the impugned order is on the ground that they actually gave their examination of the final year in December, 2001 and not in January, 2002. In support of their case, they have annexed the examination schedule of their college. The submission is that the college, for reasons unknown, in their result wrongly noted that the said examination was held in January, 2002. They submit that it is not their mistake and, for the same, they cannot be held responsible. They further submit that, admittedly they belong to be a batch prior to that of the private respondents and hence, on the basis of the same also, they should be treated separately from the private respondents. Strong emphasis is made on the word, 'Batch' and it is claimed that their batch, from the date of their admission till their passing out from the Institution, was a separate batch and hence the same cannot be clubbed with a junior/later batch of the Institution.

7. In response, the submission of the private respondents is that the petitioners never ever disputed their results nor made any attempts to get their results corrected, where their examination is noted to be held in January, 2002 by the Institution only. Thus, the private respondents submit that, since their final results, as submitted by the petitioners themselves, note that they gave their examination in January, 2002, which they never disputed earlier, the same cannot now be disputed by them. The private respondents thus, submit that it is admitted position that both the petitioners and the private respondents gave their examination in the year 2002 and State has rightly treated all of them belong to the Batch of 2002.

8. Private respondents further submit that since both the petitioners and private respondents gave their examination in the year 2002 hence they have all been rightly treated to be Bach of 2002 by the State Government and appointments have been given on the basis of inter se merit of all of them.

9. Learned standing counsel adopted all the arguments raised by the private respondents. He further submits that State Government has followed the traditional policy, which is in consonance and compliance of the orders of the Division Bench of this Court as well as judgment and orders of the Apex Court. They also submit that traditionally, relevant date, for constituting a batch for appointments, is the year of final examination and the same policy is been applied in the present case.

10. From above, it is clear that the dispute between the parties, revolves around the following questions:-

1. Whether petitioners belong to the Batch of 2001 or the Batch of 2001?.

2. If the petitioners belong to the Batch of 2002, whether they can be clubbed with the answering respondents in one Batch and can be appointed on the basis of their inter se merit?

11. So far as the first question is concerned, only record submitted by petitioners to the State Government was their marksheets for the purpose of their appointments. The State Government, on the basis of date of examination given in these marksheets, placed petitioners in the list. Nothing has been placed by the petitioners before this Court, that they placed any other record before the State Government to show that, in fact, they gave final examination in the year 2001. Therefore, now, the said question cannot be reopened by the petitioners. The petitioners are estopped now, at this later stage, from disputing correctness of the documents which they themselves submitted. The State Government only appointed petitioners on the basis of the documents submitted by them. Even otherwise, in the present proceedings no such relief, of correction of marksheets, is sought by the petitioners. Neither State Government nor this Court, can correct their marksheets. The remedy available to the petitioners, for getting their marksheets corrected, was to approach their institution. It is only their institution, which was having the relevant records, could have corrected the date of examinations, in the marksheets issued by them. Since there is nothing before this Court to the effect, that the petitioners ever approached their institution, and also in view of the fact that no such relief is sought by the petitioners in the present writ petitions, this Court cannot but treat their final year marksheets to be correct. Since the said marksheets note that the petitioners gave their final year examination in January, 2002, hence, the State Government has rightly treated them to have appeared and given their examination in the year 2002.

12. The second issue is, whether the State Government could have clubbed both, the petitioners who gave final year examination in January, 2002 and private respondents who gave examination in December, 2002, together and given appointment on the basis of inter se merit of all of them?

13. Both the parties have strongly argued to define the word 'Batch'. All the parties agree that the word 'Batch' would only mean "a set of things or persons who are treated as a group for certain purpose." Learned counsels for petitioners submit that in the Institution, petitioners belonged to Class-F which took admission prior to answering respondents while private respondents belonged to Class-G, who took admission in the Institution a year after the petitioners. They further submits that throughout, in the education Institution, they were one year senior to the private respondents. Hence petitioners and private respondents always belonged to a different batch and petitioners batch was throughout senior to that of private respondents. Thus, while giving appointment also the State Government ought to have treated them to be of a separate batch and could not have clubbed them to a batch which passed out after them, which is an argument strongly disputed by the respondents.

14. The manner in which an education institution defines batch, cannot be imposed upon the employer/State Government while such student apply for recruitment. For the purpose of recruitment/ appointment in service, it is State Government which is the appropriate authority to decide as to how it would define the group/batch. The same has to be defined by the State Government on the basis of the policy for appointment, which in present case, is framed as per directions of the Court. Every year, the state Government has given appointments, to persons who have given their final year examination in that year, on the basis of their inter se merit and it has not gone into the facts as to when they took admission in the education Institution or to which Class they belonged. In fact such record, that is as to when they took admission in the Institution, was neither produced before the State Government and nor was considered by the State Government. The State Government only considers the year of the final year of the examination of a person for the purpose of putting him in the batch of the said year. If result of final year examination is declared in a subsequent year and even if candidate is registered with the Pharmacy Council of India in a subsequent year, for the purpose of appointment the person is treated to be of the batch of the year in which he gave examination. Thus, the Batch for the purpose of recruitment and appointment is final only on the basis of the year in which a person gave his final year examination.

15. The State Government has always followed the aforesaid policy. The aforesaid policy does not violate the judgment and orders of the Courts on the basis of which these appointments are being made. In fact the said policy was clearly stated before this Court also, by affidavit dated 11.4.2016 in Writ Petition No.2772 (S/S) of 2016, by the State Government. Definitely, the word 'Batch' as is understood in the education Institution, cannot be imposed on the State Government for the purpose of recruitment. The Batch has to be understood in reference to and the purpose for which it is being interpreted. In the present case, it is for the purpose of appointment in the service. If the State has throughout following the policy of treating persons, who have passed in a particular year to be belonging to one Batch and has been making appointment on the basis of their inter se seniority, the said definition has to be given to the word, ''Batch'. Had it been a case where both petitioners and the private respondents had given their final year examination in different year, they would have definitely belonged to different batch for the purpose of appointment. In the peculiar facts of the present case, both the petitioners and private respondents gave their final year examination in one year. As per policy of the State Government, thus, they both, for the purpose of appointment, belong to one Batch. There is neither any arbitrariness or illegality in creation of such a Batch by the State Government.

16. On being treated to be of one Batch, the petitioners have to be clubbed together with private respondents, for the purpose of appointment, since there is no arbitrariness or illegality in the above definition of word, 'Batch'. Following the said policy and implementation of the same cannot be faulted with. The respondents State authorities are bound to appoint persons, on the basis of the above definition of Batch and on basis of their inter se merit. The respondents State authorities have, therefore, rightly appointed parties on the basis of their inter se merit and no fault can be found in the appointments.

17. Even otherwise, so far as equity is concerned, presuming submission of the petitioners as correct, even then looking into the fact, that admittedly the private respondents and petitioners passed out from the same Institution and on merits, admittedly, private respondents are better placed than the petitioners, thus, merely because a more meritorious persons are given a benefit by placing them higher in the select list, while every one has been selected and appointed, it would not be appropriate for this Court to interfere with the select list in its discretionary jurisdiction. Thus, this Court in its discretionary jurisdiction also refuses to interfere with the impugned order.

18. In view of aforesaid the writ petitions are dismissed.

Order Date :- 16.11.2017

Rajneesh DR-PS)

(Vivek Chaudhary, J.)