Rakesh Baroi vs State Of Odisha And Others
2023 Latest Caselaw 3152 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                W.P.(C) No.36664 of 2022

                 Rakesh Baroi                              ....            Petitioner
                                                           Mr. K.C. Sahu, Advocate
                                              -versus-
                 State of Odisha and others             ....      Opposite Parties
                                                      Mr. N.K.Praharaj, A.G.A.
                                                Mr. P.K. Parhi, DSGI along with
                                                         Mr. B.S. Rayguru, CGC
                                        CORAM:

                            JUSTICE A.K. MOHAPATRA

                                               ORDER

Order No.                                     11.04.2023
             I.A.NO.4398 OF 2023
    04.     1.      This matter is taken up through Hybrid Arrangement (Virtual
            /Physical Mode).

2. This is an application for modification of order dated 28.02.2023 passed in W.P.(C) No.36664 of 2022.

3. Considering the submission, the order dated 28.02.2023 is recalled and the following order is passed:

4. Heard learned counsel for the petitioner, learned counsel for the State as well as Mr. B.S. Rayguru, learned C.G.C. Perused the writ petition as well as documents annexed thereto.

5. The present writ petition has been filed by the petitioner with the following prayers:

"It is therefore humbly prayed that the Hon'ble Court be graciously pleased to pass following relief(s):

(i) The Hon'ble Court be pleased to Admit the writ petition and call for the // 2 //

records/documents,

(ii) The Hon'ble Court be pleased to direct the opp.parties for modification of the impugned eligibility criteria of the advertisement under Annexure-3 so also the impugned letter dtd.10.12.2021 under Annexure-9 relating to allowing the only Diploma in Pharmacy candidates by declaring the same as erroneous and void ab-initio in view of the statutory provisions of Pharmacy Act 1948 so also the regulations issued by the Pharmacy Council of India under Annexure-10, 10/1 & 11, 11/1,

(iii) The Hon'ble Court be pleased to further direct Opp.parties for allowing the higher qualified B.Pharma candidates in the recruitment as they are became automatically eligible in the matter of recruitment for the post of Pharmacist as per notification dtd.16.07.2019 under Annexure-10/1 with further directing the Opp.party no-4 & 5 to issue the order of appointment in favour of the petitioner in view of his selection in the recruitment test so also verification of his documents made as per Annexure-6 & 7 within a time bound period for the interest of justice.

And may pass any other Writ(s), Direction(s), Order(s) as this Hon'ble Court may be deemed fit and proper;"

6. It is submitted by learned counsel for the petitioner that pursuant to Advertisement dated 28.12.2020 under Annexure-3 for recruitment to the post of Pharmacist-2020 issued by Odisha Sub- ordinate Staff Selection Commission, Bhubaneswar (in short 'OSSSC', the petitioner applied for the said post. On perusal of the writ petition, it appears that the petitioner possesses the qualification // 3 //

of Bachelor Degree of Pharmacy (B.Pharma) from Jayadev College of Pharmaceutical Sciences, Naharkanta, which is affiliated by Biju Pattanaik University of Technology, Odisha, Rourkela, which is also approved by the Pharmacy Council of India as well as institute recognized by A.I.C.T.E. Pursuant to eligibility criteria, the petitioner participated in the selection test. After conclusion of the selection test, a list of meritorious candidates was published and the name of the petitioner finds place under the Schedule Caste category. Accordingly, the name of the petitioner was recommended under Annexure-8 for appointment as Pharmacist in Chief District Medical & Public Health Officer, Khordha. However, appointment letters were issued in favour of 20 candidates out of 21 candidates under Annexure-8 and the appointment letter dated 25.10.2021 has been annexed to the writ petition as Annexure-8. So far as the present petitioner is concerned, it is further submitted by learned counsel for the petitioner that no appointment letter was issued in him favour although the petitioner has been selected under the S.C. man Category by the OSSSC. It is submitted by learned counsel for the petitioner that although the petitioner fulfills all the eligibility criteria including the educational qualification and accordingly, selected by OSSSC, however, surprisingly she was not issued with appointment letter whereas other candidates, who have been selected, were issued appointment letters. Accordingly, the petitioner approached this Court by filing the present writ petition.

7. Learned counsel for the State, on the other hand, relying on eligibility criteria with regard to qualification in the advertisement as well as rules submitted that the petitioner is having higher qualification than the qualification prescribed for the post of Pharmacists, i.e. the petitioner having B. Pharma degree from BPUT, // 4 //

which is higher qualification than the Diploma in Pharmacy, the authorities have not issued any appointment letter to him. In such view of the matter, learned counsel for the State tries to justify the action of the Opposite Parties by stating that they have not committed any illegality in issuance of appointment letter.

8. Learned counsel for the petitioner, on the other hand, submits that the eligibility criteria with regard to the educational qualification, which has been provided in the Rules as well as the advertisement under Clause-(vii) provides the candidates must have passed +2 Science Examination under Council of Higher Secondary Education, Odisha/equivalent, which includes the Diploma in Pharmacy from the Government Medical College and Hospitals of the State or other recognized private institutions duly approved by the A.I.C.T.E. and examination conducted by the Odisha Pharmacy Board. He further contended that the petitioner having B. Pharma Degree from the Pharmacy College which was affiliated by the BPUT as well as to the A.I.C.T.E., she stands on a better footing with the minimum eligibility criteria prescribed under rules and eligibility clause for the post in the advertisement. With regard to having higher educational qualification than the prescribed rules as well as in the advertisement, learned counsel for the petitioner referred to the judgment of the Hon'ble Supreme Court of India in the case of Puneet Sharma vrs. Himachal Pradesh State Electricity Board Ltd. : reported in AIR 2021 Supreme Court 2221. In the said reported judgment, the Hon'ble Supreme Court has categorically held that the decision of the High Court that Matriculation and Diploma holder in the relevant subject alone are eligible for the post of Junior Engineer and no persons holding any degree which is definitely highest qualification are not eligible is erroneous and accordingly, the judgment of the // 5 //

Hon'ble High Court of Himchal Pradesh was set aside. In a similar factual scenario, the Coordinate Bench of this Court in the case of Durga Madhab Dakua and another vrs. State of Odisha in WPC(OAC) No.1889 of 2017 decided on 27.09.2021, in paragraph-8 while referring to the judgment in the case of Puneet Sharma vrs. Himachal Pradesh State Electricity Board Ltd.(supra) allowed the writ petition and the petitioners in that case, who were possessing B.Sc. Nursing degree, were allowed to be higher qualification and another Post Basic Diploma in Psychiatric Nursing Course and allowed the said petitioner to be appointed to the post of Staff Nurse.

9. Further, learned counsel for the petitioner in course of argument has drawn attention of this Court to the letter dated 07.10.2022 issued by the Pharmacy Council of India, which is annexed at Annexure-11 wherein clarification has been given by the Pharmacy Council of India with regard to minimum qualification of the Pharmacist under Section 12 of the Pharmacy Act, 1948. Further, in the said letter reveals that the qualification like D. Pharm, B. Pharm and Pharm D are approved by the Pharmacy Council of India under Section 12 of the Pharmacy Act, 1948 for the purpose of registration of Pharmacy.

10. Mr. B.S. Rayguru, learned Counsel for the Central Government appearing for the Pharmacy Council of India supported such contentions and he further reiterated that Pharmacy Council of India has issued clarification.

11. Further referring to a Gazette notification of the Government of India dated 16th of July, 2019, learned counsel for the petitioner also submits that the Central Government on recommendation of the Pharmacy Council of India has decided that a person holding Pharm // 6 //

D qualification being higher qualification shall automatically become eligible for appointment to various posts where a person holding Diploma in Pharmacy or Bachelor of Pharmacy or Master Pharmacy qualification is eligible to be appointed.

12. Learned counsel for the petitioner also referred to a recent advertisement issued by the Odisha Staff Selection Commission for recruitment of the post of Pharmacists. The advertisement was issued on 31.12.2019 and the same has been annexed to the writ petition at Annexure-14. On perusal of the said advertisement, it reveals that the qualification for the post of Pharmacist was prescribed as +2 Science with Diploma in Pharmacy/Bachlor in Pharmacy from A.I.C.T.E. approved institution and must have registered under Pharmacy Council of Odisha.

13. In such view of the matter, learned counsel for the petitioner submits that inaction of the authorities in issuing appointment letter in favour of the petitioner is illegal, arbitrary and unsustainable in law.

14. Having heard learned counsel for the respective parties, considering the rival contentions and further upon a careful consideration of the materials placed before this Court, this Court has no hesitation in coming to a conclusion that the petitioner having B. Pharma Degree and the same being a higher degree than the prescribed degree of Diploma in Pharmacy is also eligible to be considered for appointment to the post of Pharmacist as has been decided by the Pharmacy Council of India. Further such view of this Court gets support from the judgment of the Hon'ble Supreme Court in the case of Puneet Sharma vrs. Himachal Pradesh State Electricity Board Ltd.(supra), this Court is also of the considered // 7 //

view that Pharmacy Council of India issued clarification, which is a statutory body so far Pharmacy course is concerned. The Opposite Parties should not have taken stand different from the Pharmacy Council. Accordingly, this Court is of the view that the letter dated 10.12.2021 under Annexure-9 issued by the Directorate of Health Services, Odisha, Bhubaneswar does not depict the correct picture. The letter dated 10.12.2021 under Annexure-9 so far it relates to the eligibility criteria for appointment to the post of Pharmacist is hereby quashed and the matter is remitted back to the Directorate of Health Services, Odisha, Bhubaneswar-Opposite Party No.2 to consider the matter afresh in the light of the analysis made hereinabove. Further, the Superintendent, Chief District Medical & Public Health Officer, Khordha-Opposite Party No.4 is directed to issue appointment letter in favour of the petitioner, if the post is not filled up till date and subject to verification of the name of the petitioner as has been recommended by the OSSSC for such appointment.

15. Further, it is directed that the entire exercise be carried out within a period of six weeks from the date of production of certified copy of this order, if there is no other legal impediment.

16. With the aforesaid observation/direction, the writ petition stands disposed of.

( A.K. Mohapatra ) Judge RKS