Delhi High Court
Gnct Of Delhi & Ors. vs Naresh Kumar on 12 November, 2010
Author: Pradeep Nandrajog
$~10 & 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 12th November, 2010
+ W.P.(C) 4769/2010
GNCT OF DELHI & ORS. ..... Petitioners
Through: Ms.Avnish Ahlawat, Advocate
versus
NARESH KUMAR ..... Respondent
Through: Mr.Jayant Bhushan, Sr.Advocate with
Mr.Anurag Dubey, Advocate
W.P.(C) 4809/2010
GNCT OF DELHI & ORS. ..... Petitioners
Through: Ms.Avnish Ahlawat, Advocate
versus
SANDEEP CHIKKARA ..... Respondent
Through: Mr.Jayant Bhushan, Sr.Advocate with
Mr.Anurag Dubey, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.(Oral)
1. Since common question of law arises for consideration in
the two captioned writ petitions the same are being decided
together.
W.P.(C) Nos.4769/10 & 4809/10 Page 1 of 20
2. It may be noted at the outset that learned counsel
concede that the reasoning of the Tribunal and the decisions
cited by the Tribunal may be ignored inasmuch as the Tribunal
has proceeded on a tangent. Further, counsel concede that
issues arising out of The Pharmacy Act, 1948 have not been
discussed by the Tribunal and that this Court may do the
needful.
3. The Pharmacy Act, 1948 provides for the constitution of a
Pharmacy Council of India for the purposes of regulating the
subject of pharmacy including its profession. Apart from other
functions, a function of The Pharmacy Council is contained in
Section 10 of Pharmacy Act, 1948. Relevant portion whereof is
being noted herein under:-
"10. Education Regulations. - (1) Subject to the
provisions of this section, the Central Council may,
subject to the approval of the Central Government,
make regulations, to be called the Education
Regulations, prescribing the minimum standard of
education for qualification as a pharmacist.
(2) In particular and without prejudice to the
generality of the foregoing power, the Education
Regulations may prescribe -
(a) the nature and period of study and of practical
training to be undertaken before admission to an
examination;
(b) the equipment and facilities to be provided for
students undergoing approved courses of study;
(c) the subjects of examination and the standards
therein to be attained;
(d) any other conditions of admission to
examinations.
...."
4. In exercise of powers conferred upon it by Section 10 of
Pharmacy Act, 1948, Pharmacy Council framed Education
W.P.(C) Nos.4769/10 & 4809/10 Page 2 of 20
Regulations 1991 pertaining to the Diploma Course in
Pharmacy, relevant portion whereof is being noted herein
under:-
"Minimum qualification for admission to diploma in
Pharmacy Part - I course - A pass in any of the
following examinations with Physics, Chemistry and
Biology or Mathematics.
1. Intermediate Examination in Science;
2. The first year of the three year degree course
in Science;
3. 10+2 examination (academic stream) in
science;
4. Pre-degree examination;
5. Any other qualification approved by the
Pharmacy Council of India as equivalent to any of the
above examination." (Emphasis Supplied)
5. Respondent Sandeep Chikkara in W.P.(C) No.4809/2010
and respondent Naresh Kumar in W.P.(C) No.4769/2010 who
had studied Physics, Chemistry and Mathematics at Senior
School level (10+2 level) participated in the Common Entrance
conducted by Board of Technical Education, Department of
Training and Technical Education, Government of NCT of Delhi
for admission to diploma course in pharmacy in various
polytechnic institutes in Delhi in the years 2000 and 2002
respectively. The relevant extract of the information bulletin
issued by Department of Training and Technical Education in
respect of Common Entrance Test-2000 is being noted herein
under:-
"....4.1 Educational Qualifications
I A candidate passing any one of the following
examinations is eligible for admission to the first
semester/year Diploma Course in Computer
Engineering/Modern Office Practice or Pharmacy.
W.P.(C) Nos.4769/10 & 4809/10 Page 3 of 20
Senior School Certificate examination (class XII) of
the Central Board of Secondary Education (CBSE),
Delhi or any other examination recognized as
equivalent to the senior school certificate
examination of the CBSE.
...
10.2 Syllabus for Common Entrance Test
....
TEST-2: (For Diploma in Pharmacy)
Physics, Chemistry and Mathematics or Biology as
per CBSE syllabus for class XI examination, held in
1999 and CBSE syllabus for Senior School Certificate
Examination held in 2000. Candidates have to
appear either in Mathematics or in Biology. Physics
and chemistry papers are compulsory.
...."
The relevant extract of the information bulletin issued by
Department of Training and Technical Education in respect of
Common Entrance Test-2002 is being noted herein under:-
"....
4 ABOUT THE COURSES
4.27 PHARMACY (Offered at: MP, SH, AI,GR,SB)
Diploma course in Pharmacy imparts knowledge of
manufacturing, synthesis, mode of action, uses and
toxic effects of medicine. It deals with study of
medicinally important drugs from important sources.
A practical training of 500 hrs. in different hospitals
and dispensaries is given to students after
completion of two years course. Then they are
registered as PHARMACIST. The trained diploma
holders are absorbed in pharmaceutical companies
as marketing personnel or as pharmacists in
hospitals, dispensaries health centres and different
pharmaceutical organizations.
....
5. ELIGIBILITY FOR ADMISSION
...
5.1 Educational Qualification
TEST PROGRAMME QUALIFICATION
NUMBER/CODE
..... .... ....
3 Computer Passed Senior School
Engineering/Pharmacy Certificate
Examination (class
XII) of the Central
Board of Secondary
Education (CBSE),
Delhi or any other
examination
recognized as
equivalent to the
senior school
certificate
examination of the
CBSE with English,
Physics, Chemistry
and Mathematics (for
Computer Engg.) and
either Mathematics
or Biology (for
Pharmacy) with
minimum 45% marks
in aggregate of five
compulsory subjects
with a pass in each of
English,
Maths/Biology,
Physics and
Chemistry separately
in Theory and
Practical
examination,
wherever applicable.
...."
6. Respondents Naresh Kumar and Sandeep Chikkara
successfully cleared the respective Common Entrance Test
and obtained admission in the diploma course for pharmacy in
the institutes under Government of NCT of Delhi. On successful
completion of the course, Board of Technical Education
awarded diploma in pharmacy to respondents Sandeep
Chikkara and Naresh Kumar in the years 2002 and 2006
respectively.
7. On 18.10.2004 an Office Order No.F.10(42)/PHC/TRC/
PHARMACIST/2004/11203 was issued by Health and Family
Welfare Department, Government of NCT of Delhi regarding
the recruitment to the post of Pharmacist in medical
institutions under the Government of NCT of Delhi, which reads
as under:-
"In exercise of the powers conferred by proviso to
article 309 of the Constitution, read with the
Government of India, Ministry of Home Affairs
Notification No.F.27/59-(Him) amendment in the
Schedule annexed to the Administration Notification
No.F.2/15/66-Sec (C) dated 3-8-1967 containing the
rules regarding the method of recruitment and
educational qualifications necessary for appointment
to post of Pharmacist in the Medical Institutions
under the Government of NCT of Delhi, namely:-
AMENDMENT
In the said schedule, for the existing entries under
Column 2 (No. of Posts), Column 4 (Scale of Pay),
Column 6 (Age limit for direct recruitment to bring it
at par with the instructions on the subject as
mentioned in the Government of India's RR) and
Column 7 (Educational and other Qualifications
required for direct recruits), following shall be
substituted namely:-
Column 2 770 (2004)
Subject to variation depending upon
workload.
Column 4 Rs.4500-7000 (due to the
implementation of the
Recommendations of 5th Pay
Commission Report)
Column 6 18-30 years (To bring it at par with
the instructions on the subject as
mentioned in the Government of
India's RR)
Column 7 (a) B. Pharmacy from a recognized
Institute
OR
(i) 10+2 with Science Stream
(Physics/Chemistry/Biology) from a
recognized Board.
Technical Qualification:-
(ii) Approved Diploma in Pharmacy
from the Institute recognized by the
Pharmacy Council in India and
registered as Pharmacist under the
Pharmacy Act, 1948." (Emphasis
Supplied)
8. At this juncture, it is most significant to note here that
prior to issuance of afore-noted Office Order dated 18.10.2004
the diploma-holders who had studied Mathematics in Senior
School level (10+2 level) were also eligible to apply for
appointment to the post of Pharmacist in the medical
institutions under Government of NCT of Delhi.
9. In January 2007 Delhi Subordinate Services Selection
Board, Government of NCT of Delhi, issued advertisement
No.9/2007 for appointment to various posts including the post
of Pharmacist (Allopathy) under Health and Family Welfare
Department, Government of NCT of Delhi. The relevant extract
of the said advertisement is being noted herein under:-
"PHARMACIST (ALLOPATHY) POST CODE -
.....
Essential Qualifications:-
(a) B. Pharmacy from a recognized Institute,
OR
(i) 10+2 with science stream
(Physics/Chemistry/Biology) from a recognized
Board.
Technical qualification
(ii) Approved Diploma in Pharmacy from the Institute
recognized by the Pharmacy Council of India and
registered as Pharmacist under the Pharmacy Act,
1948.
....." (Emphasis Supplied)
10. Aggrieved by the condition prescribed in the afore-noted
advertisement that only such diploma-holders who had
studied Biology at Senior School level (10+2 level) shall be
eligible to apply for appointment to the post of pharmacist,
respondent Naresh Kumar filed a petition bearing No.723/2008
under Articles 226 and 227 of Constitution of India before a
Single Judge of this Court seeking quashing of the said
condition. Vide interim order dated 28.04.2008 learned Single
Judge permitted respondent Naresh Kumar to participate in
the process of selection for the post of pharmacist. It was
however clarified that the selection of the respondent shall be
dependent upon the final outcome of the petition filed by him.
11. Subsequent thereto, respondent Sandeep Chikkara also
filed a petition bearing No.6451/2008 under Articles 226 and
227 of Constitution of India before a Single Judge of this Court
seeking quashing of the afore-noted eligibility condition
contained in the advertisement No.9/2007.
12. In view of the fact that the afore-noted eligibility
condition impugned by the respondents was based upon the
Recruitment Rules for the post of pharmacist in medical
institutions under Government of NCT of Delhi amended vide
Office Order dated 18.10.2004, respondent Naresh Kumar
withdrew petition No.723/2008 filed by him and filed a fresh
petition No.8181/2008 before a Division Bench of this Court
challenging the vires of the said amended Recruitment Rules.
In that view of the matter, the petition No.6451/2008 filed by
respondent Sandeep Chikkara was also transferred to the
Division Bench for adjudication.
13. While hearing the afore-noted petitions filed by the
respondents, Division Bench was of the view that the
grievance raised by the respondents pertains to service
matters and therefore needs to be raised before Central
Administrative Tribunal in the first instance. Vide order dated
18.04.2009 the Division Bench granted permission to the
respondents to withdraw the petitions filed by them with
liberty to approach the Tribunal.
14. Subsequent thereto, the respondents filed applications
under Section 19, Administrative Tribunals Act, 1985 before
Principal Bench, Central Administrative Tribunal, New Delhi
challenging vires of amended Recruitment Rules to the extent
it prescribes that only diploma holders who had studied
Biology at senior school level shall be eligible for appointment
to the post of pharmacist as also seeking quashing of the
similar eligibility condition contained in the advertisement
No.9/2007 on the grounds that:- (i) on taking admission in
diploma course of pharmacy in the institutes under
Government of NCT of Delhi, the respondents had a legitimate
expectation that they would be eligible for the appointed to
the post of Pharmacist in medical institutions under
Government of NCT of Delhi after completion of their course
and thus the amendment to the Recruitment Rules insofar it
renders the diploma-holders who had Mathematics and not
Biology at senior school level, including the respondents,
ineligible for appointment to the post of pharmacist is illegal
as it is opposed to their legitimate expectation; (ii) the
amendment in question in the Recruitment Rules is violative of
Article 14 of Constitution of India for the classification made by
the amendment between the diploma - holders who had
studied Mathematics at senior school level and those who had
studied Biology has no rationale as Biology is taught in
diploma course of pharmacy and thus it would make no
difference whether a diploma-holder studied Biology at senior
school level or not and (iii) the amendment in question in the
Recruitment Rules is arbitrary and unreasonable for the
diploma-holders who had studied Mathematics and not Biology
at senior school level are eligible for appointment to the post
of Pharmacist in number of medical institutions under Central
Government and other State Governments.
15. Relevant would it be to note that no pleadings were
urged with respect to the Pharmacy Act 1948 and the question
whether at all the Government could prescribe essential
qualifications at the Senior Secondary level for Pharmacists
contrary to the one's recognized by the Pharmacy Council.
16. Per contra, the stand taken by the Government of NCT of
Delhi before the Tribunal was that the Recruitment Rules have
been amended after due deliberation and seeking guidance
from the experts; the requirement of having studied Biology at
senior school level is necessary in view of nature of duties of
Pharmacist and thus prescription of Biology at senior school
level has a rational and that the Recruitment Rules have been
amended on the pattern of Recruitment Rules prescribed by
the Central Government for the post of Pharmacist in Central
Government Health Scheme wherein also only the diploma
holders who had studied Biology at senior school level could
apply for appointment to the post of pharmacist.
17. At this juncture, relevant would it be note that the
following stand was taken by Board of Technical Education,
Department of Training and Technical Education, Government
of NCT of Delhi before the Tribunal:-
"Pharmacy Diplomats of the Board of Technical
Education, trained as per the norms of the Pharmacy
Council of India, can work as pharmacists anywhere
in India - both in public and private sectors."
18. Vide judgment dated 11.03.2010, the Tribunal has
allowed the applications filed by the respondents. It was held
by the Tribunal that :- (i) the amendment in question by
making a distinction between diploma holders who had
studied Biology at senior school level and those who had
studied Mathematics creates a class within class, which is
forbidden by Article 14 of Constitution of India; (ii) the fact
that by virtue of amendment in question the diploma holders
who had studied Mathematics at senior school level have been
rendered ineligible to apply for the post of Pharmacist in
medical institutions under government of NCT of Delhi,
whereas they are eligible to apply for same post in the
medical institutions under the government of other states as
evident from the stand taken by Board of Technical Education
shows that the aforesaid amendment is arbitrary,
unreasonable and discriminatory and (iii) classification made
by the amendment between the diploma holders who had
studied Mathematics at senior school level and those who had
studied Biology has no rationale as Biology is taught in
diploma course of pharmacy and thus it would make no
difference whether a diploma-holder studied Biology at senior
school level or not.
19. Aggrieved by the impugned judgment dated 11.03.2010
passed by the Tribunal, the petitioners have filed the present
petition(s) under Articles 226 and 227 of Constitution of India.
20. What is the doctrine of "legitimate expectation"?
21. After a survey of leading decisions on the point, the legal
position with respect to legitimate expectation can be
summarized as under:-
I Mere reasonable or legitimate expectation of a citizen
may not by itself be a distinct enforceable right, but failure to
consider and give due weightage to it may render the decision
arbitrary.
II Legitimate expectation may arise (a) if there is an
express promise given by a public authority; or (b) because of
acceptance of a regular practice, a claimant can reasonably
expect it to continue; and (c) such expectation may be
reasonable.
III For a legitimate expectation to arise, the decision of
administrative authority must affect the person by depriving
him of some benefit or advantage which he had in the past
been permitted, by the decision maker, to enjoy and which he
can legitimately expect to be permitted to continue, until
some rational grounds for withdrawing it have been
communicated to him.
IV If the authority proposes to defeat a person's legitimate
expectation, it should afford him an opportunity to make a
representation in the matter.
V The doctrine of legitimate expectation permits the Court
to find out if the change in policy which is the cause for
defeating the legitimate expectation is irrational or perverse
or one which no reasonable person could have made.
22. Having noted the general principles pertaining to
doctrine of legitimate expectation, let us proceed to note
judicial decisions where applicability of said doctrine was
examined by the Courts in similar facts situation.
23. In the decision reported as University Grants Commission
v Sadhana Chaudhary & Ors (1996) 10 SCC 536 in exercise of
powers conferred by Section 26(l)(e) of University Grants
Commission Act, 1956 University Grants Commission
(hereinafter referred to as "UGC") framed University Grants
Commission (Qualifications Required of a Person to be
Appointed to the Teaching Staff of a University and Institutions
Affiliated to it) Regulations 1982 (hereinafter referred to as
"1982 Regulations"). Under 1982 Regulations the minimum
qualifications prescribed for appointment to the post of
University lectures were (i) a Doctorate's Degree or Research
Work of equally high standard; and (ii) a good academic
record with at least second class (C I the seven point scale)
Master's degree in a relevant subject from an Indian University
or an equivalent degree from a foreign University. For college
lectures the minimum qualifications prescribed were: - (i) an
M.Phil degree or recognized degree beyond the Master's level
or published work indicating the capacity of a candidate for
independent research work; and (ii) good academic record
with at least second class (C in the seven point scale) Master's
degree in a relevant subject from an Indian University or an
equivalent degree from a foreign University. Thereafter UGC
framed University Grants Commission (Qualifications Required
of a Person to be Appointed to the Teaching Staff of a
University and Institutions Affiliated to it) Regulations 1991
(hereinafter referred to as "1991 Regulations"). The 1991
Regulations superseded the 1982 Regulations and prescribed
the following minimum qualifications for the post of lectures in
universities and colleges:- (i) Good academic record with at
least 55% marks or an equivalent grade at Master's level in
the relevant subject from an Indian University or an equivalent
degree from a foreign University and (ii) Candidates besides
fulfilling the above qualifications should have cleared the
eligibility test for lectures conducted by UGC, CSIR or similar
tests accredited by UGC. Vide circular dated 10.02.1993 UGC
granted exemption to the candidates who would submit their
Ph.D thesis upto 31st December, 1993 and the candidates who
were awarded M.Phil degree upto 31.03.1991 from appearing
in the eligibility test. Vide notification dated 21.06.1995 1991
Regulations were amended and a proviso was added to the
provision regarding the requirement of clearing the eligibility
test for appointment to the post of lecturer to the effect that
candidates who would submit Ph.D thesis or passed M.Phil
examination by 31st December 1993. The act of UGC of
granting exemption to the candidates from appearing in the
eligibility test was challenged in Supreme Court, which
challenge was repelled by the Court in the following terms:-
"22. We may now come to the validity of the
exemption from the requirement regarding clearing
the eligibility test that has been granted under the
Circulars dated 10-2-1993 and 15-6-1995 and the
notification dated 21-6-1995. Shri S.B. Sanyal,
learned Senior Counsel appearing for the appellants
in civil appeal arising out of SLP (C) No. 27375 of
1995, has submitted that having regard to the report
of the National Commission on Teachers II and the
report of the Mehrotra Committee, which form the
basis for introducing this requirement by the UGC in
the 1991 Regulations, there is no rational basis for
granting exemption from the eligibility test to
candidates who had submitted Ph.D. thesis or
passed the M. Phil. examination by 31-12-1993. We
find no merit in this contention. Prior to the making
of the 1991 Regulations there was no statutory
requirement regarding clearing the eligibility test for
the purpose of appointment on the post of Lecturer.
Such a requirement was introduced for the first time
by the 1991 Regulations. At the time when the 1991
Regulations were made the provisions contained in
the 1982 Regulations had given rise to a legitimate
expectation that a person having a Ph.D. or M. Phil.
degree and having good academic record as
prescribed under the 1982 Regulations would be
eligible for appointment on the post of Lecturer
without anything more. While introducing the
requirement of clearing the eligibility test in the
1991 Regulations, the UGC did not intend to deprive
the persons who had obtained M. Phil. degree or
Ph.D. degree prior to the making of the 1991
Regulations of their legitimate expectation in the
matter of appointment on the post of Lecturer in
universities or colleges. It was also felt that the said
requirement in the 1991 Regulations should not
operate to the prejudice of persons who, having
regard to the qualifications prescribed in the 1982
Regulations, had registered for the Ph.D. degree or
had joined study for M. Phil. degree course prior to
making of the 1991 Regulations and, therefore,
provision was made for granting exemption to such
candidates with the condition that they should have
passed M. Phil. examination or should have
submitted Ph.D. thesis by a particular date.......We
are, therefore, unable to hold that the exemption
that has been granted by the amendment introduced
in the 1991 Regulations by notification dated 21-6-
1995 is violative of the right to equality guaranteed
under Article 14 of the Constitution." (Emphasis
Supplied)
24. In the decision reported as Dr. M. Sathiyapriya v
Secretary to Government, Health and Family Welfare
Department & Ors (2005) 1 MLJ 378 the appellants were
doctors who were appointed in various Primary Health Centers
under Government of Tamil Nadu in the year 2001. The
relevant rule prevailing at the time of their appointment was
that they can seek admission to the Post Graduate/Diploma in
Medicine Course only after completion of their two years
service in Government Primary Health Centers. In February
2004 a prospectus was issued by the government for
admission to Post Graduate Medicine Course for the academic
year 2004-2005 introducing a new Clause 23 providing
eligibility criteria for admission to Post Graduate
Degree/Diploma in Medicine Courses increasing the two years
period of service in Primary Health Center to three year. On
being aggrieved over the increase of the service from two
years to three years as eligibility criteria for admission to Post
Graduate Degree/Diploma in Medicine Courses, the appellants
filed writ petitions before a Single Judge of Madras High Court
assailing the validity of Clause 23 of the Prospectus, which
petitions were dismissed. Aggrieved by the dismissal of their
writ petitions, the appellants filed appeals before a Division
Bench of Madras High Court. One of the contentions advanced
by the appellants was predicated upon the doctrine of
legitimate expectation, which contention was accepted by the
Court in the following terms:-
"According to the writ appellants that they joined
service in Primary Health Centers only on the
assurance through the then service conditions and
eligibility criteria prescribing the minimum qualifying
service, namely two years to apply for Post Graduate
course. The writ appellants have acted upon such
promise and applied for the Post Graduate Course on
completion of two years. At that stage, curiously, the
respondents introduced the impugned Clause 23 for
the first time in the Prospectus for the academic year
2004-2005. While they joined the service in Primary
Health Centers in the year 2001, they were made to
believe by the then existing clause that they were to
undergo only two years of service in the Primary
Health Centers and they can apply for Post Graduate
Course in which 50% of the seats were earmarked
for the service candidates.
It is not debated that the then existing rule at the
time of appointment giving the said promise
stipulating two years period was made only to attract
the Doctors to make them join service in Primary
Health Centers to serve the rural masses so that
they may readily go to join service and then pursue
their studies in the Post Graduate Course by joining
the same after serving two years. Had they known at
the time of appointment in the year 2001 the initial
period for service in Primary Health Centers would
be increased from two years to three years or more,
they would not have joined the service. On the other
hand, they would have opted to seek the chance of
joining the Post Graduate Course directly through
open category. This was not allowed to be done.
....
When there is express promise given by the public
authority relating to the compulsory service of two
years in the Primary Health Centers assuring that
they would be allowed to join Post Graduate Service
after completion of two years making the writ
appellants to believe that it may happen after
completion of two years and when the expectation of
their entry into Post Graduate Course is reasonable
in the light of the promise given earlier, the sudden
introduction of the clause making as three years
without any reason and without giving any
opportunity to make the representation with
reference to their grievance would certainly defeat a
person's legitimate expectation.
If a denial of legitimate expectation in a given case
amounts to denial of right guaranteed or is arbitrary
and unfair or violation of principles of natural justice,
the same can be questioned by this Court. The court
must lift the veil and see whether the decision is
violative of these principles warranting interference.
In determining whether there is any unfairness
involved, the nature of the right infringed, the
underlying purpose of the restriction imposed, the
extent of the evil sought to be remedied, the
prevailing condition at the relevant time have to be
analyzed before the court enters into judicial verdict.
In light of the principles laid down by the Supreme
Court, the Court is well within its rights to find out
whether the introduction of the new clause under the
garb of change of policy which is the cause for
defeating the legitimate expectation is irrational or
perverse or unreasonable.
In that view of the matter, we are constrained to
hold that the introduction of Clause 23 is opposed to
legitimate expectation and consequently, this Court
has to accept the contention of the writ appellants
with reference to the same.
...."
25. In the light of the ratio laid down in the afore-noted two
judicial decisions, we proceed to examine the present case(s).
26. In case of respondent Sandeep Chikkara, the educational
qualification prescribed by Board of Technical Education for
admission in diploma courses in Pharmacy conducted by the
institutes under government of NCT of Delhi was that the
candidate should have passed Senior School Certificate
Examination of CBSE or any other examination recognized as
equivalent to the Senior School Certificate Examination of
CBSE. Relevant would it be to note that no condition of having
studied any particular subject at senior school level was
prescribed. However, the syllabus for Common Entrance Test
conducted in said regard was Physics, Chemistry and
Mathematics or Biology syllabus of CBSE for class XI or XII as
the case maybe. Whereas it was compulsory for a candidate to
appear in Physics and Chemistry papers an option was given
to him to choose between Mathematics and Biology papers.
Therefore, by implication, the candidates who had studied
Physics, Chemistry and Mathematics or Biology at senior
school level were eligible for applying for admission in diploma
course. Respondent Sandeep Chikkara took admission in the
diploma course in the year 2000 and successfully completed
the same in the year 2002. At the time when respondent
Sandeep Chikkara took admission in the course and
successfully completed the same the relevant Recruitment
Rules prescribed that the diploma holders who had studied
Physics, Chemistry and Mathematics or Biology at senior
school level shall be eligible for appointment to the post of
Pharmacist. Since respondent Sandeep Chikkara had taken
admission for diploma course in the institutes under
government of NCT of Delhi and was eligible for being
appointed to the post of Pharmacist in terms of the existing
Recruitment Rules he could legitimately expect that he would
be eligible for getting appointed to the post of Pharmacist in
the medical institutions run by government of NCT of Delhi
after successful completion of his course. In that view of the
matter, the amendment made by the petitioners in the
relevant Recruitment Rules changing the educational
qualification required for being eligible to be appointed to the
post of Pharmacist and thereby rendering respondent Sandeep
Chikkara ineligible for applying to the said post is opposed to
legitimate expectation of respondent Sandeep Chikkara and is
thus liable to be quashed.
27. In case of respondent Naresh Kumar, the educational
qualification prescribed by Board of Technical Education for
admission in diploma courses in Pharmacy conducted by the
institutes under government of NCT of Delhi was that the
candidate should have passed Senior School Certificate
Examination of CBSE or any other examination recognized as
equivalent to the Senior School Certificate Examination of
CBSE and should have studied Physics, Chemistry and
Mathematics or Biology at the senior school level. Respondent
Naresh Kumar took admission in the diploma course in the
year 2004. At the time when respondent Naresh Kumar took
admission in the course the relevant Recruitment Rules
prescribed that the diploma holders who had studied Physics,
Chemistry and Mathematics or Biology at senior school level
shall be eligible for appointment to the post of Pharmacist.
Since respondent Naresh Kumar had taken admission for
diploma course in the institutes under government of NCT of
Delhi and was eligible for being appointed to the post of
Pharmacist in terms of existing Recruitment Rules he could
legitimately expect that he would be eligible for getting
appointed to the post of Pharmacist in the medical institutions
run by government of NCT of Delhi after successful completion
of his course. In fact, in the information bulletin issued by
Board of Technical Education in respect of Common Entrance
Test pertaining to respondent Naresh Kumar an assurance was
given to the candidates that on successful completion of the
course they would be eligible to work as pharmacists in
hospitals, dispensaries and health centers. Since the
assurance was being given by Board of Technical Education, a
government department, the candidates could legitimately
expect that the said assurance relates to the employment as
pharmacists in the medical institutions under the government
as well. In that view of the matter, the amendment made by
the petitioners in the relevant Recruitment Rules, changing the
educational qualification required for being eligible to be
appointed to the post of Pharmacist and thereby rendering
respondent Naresh Kumar ineligible for applying to the said
post is opposed to legitimate expectation of respondent
Naresh Kumar and is thus liable to be quashed.
28. Since there were no pleadings with respect to the
Pharmacy Act 1948 and parties did not urge contentions on
the issue whether at all the Government can prescribe
eligibility conditions at the Senior Secondary level for
Pharmacists contrary to the eligibility conditions recognized by
a statutory authority constituted under law i.e. the Pharmacy
Council, we refrain from rendering any opinion on the vires of
the amended recruitment regulation. But observe that on the
reasoning of the Tribunal it would not be permissible to hold
the same as arbitrary. Thus, leaving the question of vires
open, we set aside the decision of the Tribunal that the
amended Recruitment Rule is ultra-vires the constitution, but
uphold the final direction issued by the Tribunal.
29. As a result of the above discussion, the above-captioned
petitions are dismissed.
PRADEEP NANDRAJOG, J.
SIDDHARTH MRIDUL, J.
NOVEMBER 12, 2010
mm
