सहायक अध्यापक पद रिक्त का डाटा माँगा गया है सरकार से हलफनामा के द्वारा जिससे पद बढ़ने की प्रबल सम्भावना है। यूपी में फार्मेसी के केस में भी यही कहाँनी हुई थी जिसमे 766 पद को सरकार द्वारा बताये गए रिक्त पदों को ऐड करवा कर भर्ती पूरी करवाई गयी थी।
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION(C) No.20558 of 2009
STATE OF U.P. & ANR. ... Petitioners
Vs.
SANTOSH KUMAR MISHRA & ANR. ... Respondents
WITH
SLP(C)NOS.20769, 20774, 20785, 20901, 20908, 22114,
22655, 22678, 22732, 22749, 22851, 22955, 25647,
25649 & 32977 of 2009
JUDGMENT
ALTAMAS KABIR, J.
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
2
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.
3. 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'.
According to them, 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
3
appointing those Pharmacists who had obtained their
diplomas earlier.
4. 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.
5. The aforesaid controversy was triggered by an
advertisement dated 12th November, 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
4
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.
6. 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
5
the Respondents, were adjusted against the
vacancies first, irrespective of their merit vis-à-
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 Rules of 1980 read
with Rules of 2002, as amended by the Rules of
2003. 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
6
the Allahabad High Court for quashing the above-
mentioned advertisement dated 12th November, 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 year-wise, 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. 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
7
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.
8. 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.
9. 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
8
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
9
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.
11. Appearing for the Petitioners, Ms. Shobha
Dikshit, learned Advocate, submitted that the 1980
Rules prescribe the eligibility conditions for
selection of Pharmacists. Rule 10 provides for the
minimum and maximum ages while Rule 14 provides for
determining the number of vacancies to be filled
during the course of the year. Rule 15 provides the
procedure for direct recruitment by the
constitution of a Selection Committee and
preparation of a select list in order of merit,
10
which would be valid for a period of one year. On
the other hand, the 2003 Rules provide the detailed
procedure for determining the merit and suitability
of candidates with technical qualifications. Ms.
Dikshit submitted that there was no clash or
contradiction between the said two Rules and that
both, therefore, exist side by side.
12. Ms. Dikshit submitted that the 2003 Rules were
being followed by the State Government for direct
recruitment to Class III posts which were outside
the purview of the Public Service Commission, such
as Pharmacists, Lab. Technicians, ECG Technicians,
etc. She submitted that the last advertisement
dated 11th February, 2007 was a composite
advertisement inviting applications from all
paramedical trades such as Pharmacists, Lab.
Technicians, X-ray Technicians, Physiotherapists
and ECG Technicians and selections had already been
made. It was also submitted that while filling the
backlog of reserved category candidates for filling
11
up the posts of Pharmacists for the year 2007, the
Rules of 1980 read with the Rules of 2003 had been
followed and about 73 vacancies had been duly
filled in. Furthermore, since the matters relating
to selection and appointment of Pharmacists were
pending consideration before this Court for other
trades other than the selection of Pharmacists, the
Rules of 2003 had been applied and the selected
candidates had already joined their posts.
13. Ms. Dikshit, submitted that Rule 5 of 2003
Rules made it very clear that only the merit of the
eligible candidates was required to be judged on
the basis of the minimum technical qualifications,
as provided in the Educational Regulation Act,
1991, for the diploma course in Pharmacy, and the
marks obtained in the qualifying examination and
the diploma in Pharmacy are taken into
consideration for determining merit. The method
adopted for allocating certain percentage of marks
as contained in Sub-Rule (2) is only to give more
12
credit to meritorious candidates as compared to
candidates having lesser merit. Ms. Dikshit urged
that the special procedure did not offend Article
14 of the Constitution nor was it contrary to the
1980 Rules, since it did not result in any kind of
bias or prejudice to the candidates of any
particular batch. Ms. Dikshit submitted that all
eligible candidates were graded similarly and the
object of the procedure, as provided in the 2003
rules, is to adjudge the merits of the candidates
on the basis of the technical qualifications
uniformly throughout the State so as to maintain
efficiency in Government service.
14. Ms. Dikshit submitted that the observations
made to the contrary by the learned Single Judge of
the High Court were erroneous and instead of
appreciating the same, the Division Bench also
erroneously accepted the contentions that
notwithstanding the 2003 Rules, the past practice
should be followed. Ms. Dikshit submitted that
13
neither was there any past practice nor was there
any other rule or guidelines for selections to be
made for appointment to the post of Pharmacist
after the year 2003, when the 2002 Rules came into
operation. According to Ms. Dikshit, even
otherwise, the directions issued by the Division
Bench in the impugned judgment would create two
different procedures to select candidates in one
selection process.
15. Ms. Dikshit also urged that the tenor of the
impugned judgment gives the impression that the
State Government had been following a practice of
giving preference to earlier batches over later
batches. According to Ms. Dikshit, such a practice
was factually incorrect and till date, no candidate
from previous batches had been left out. However,
having regard to the decision of the High Court in
case of Rajat Yadav & Anr. vs. State of U.P. & Anr.
(Writ Petition No.2473 (SS) of 2000), issuing a
mandamus to the State Government to accommodate the
14
54 candidates left over from the selection, the
State Government, while implementing the said
direction, had filled up the posts accordingly. In
the process of such an exercise, candidates with
lesser merit came to be appointed, more so, having
regard to the fact that the State Government did
not choose to challenge the correctness of the
judgment. Ms. Dikshit submitted that even on such
grounds the stand of the Respondents that past
practice should be followed in future also ignoring
merit, was not capable of being accepted.
According to Ms. Dikshit, such an action would be
contrary to the 1980 Rules and the established
service jurisprudence. She also pointed out that
the learned Single Judge had come to the positive
conclusion that only an amendment was made to Rule
5(3)(a) since selection could not be undertaken by
computing the marks in terms of the procedure
prescribed, and, on the other hand, selection would
have to take place as per the provisions of Rule
15(2) of the U.P. Pharmacists Service Rules, 1980,
15
on the basis of the marks obtained in the Pharmacy
Diploma Examination, irrespective of the year in
which the candidate had appeared in the Diploma
Examination.
16. Several Special Appeals were filed by the writ
Petitioners before the High Court which were
disposed of by a common judgment dated 4th May,
2009, with a direction that the age of the
Respondents be relaxed as per rule, 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 been granted.
17. Ms. Dikshit further pointed out that while
disposing of the Writ Appeals, the Division Bench
of the High Court had also relied on the submission
that unless the Respondents were considered for
selection, they would lose their right to be
considered for such selection for all times to come
on account of an incorrect interpretation of the
16
Rule, forgetting that the Respondents could have
challenged their non-selection at the time when
they were excluded from the zone of consideration
on the ground that their case would be considered
only after the diploma holders who had obtained
diploma prior to them were accommodated or selected
irrespective of their merit. Ms. Dikshit concluded
on the note that if the State Government had
interpreted the rule in question otherwise and had
adopted a policy which would accommodate all
diploma holders and the same was not challenged by
the Respondents and, on the other hand, the State
Government deliberately and consciously, in the
interest of the diploma holders, adopted a policy
which would accommodate all diploma holders, the
Petitioners could not be penalized for not coming
to court earlier. Ms. Dikshit submitted that
having regard to the rules for appointment to the
post of Pharmacist having been promulgated in the
year 2003, there was no justification in the claim
of the Respondents that for filling up future
17
vacancies the cases of the candidates who had
obtained their diplomas earlier should be
considered for appointment in earlier batches till
such time as all such candidates were accommodated
against the vacancies that existed or were to arise
in future. Ms. Dikshit submitted that the judgment
and order of the learned Single Judge, as also the
Appeal Court, was liable to be set aside.
18. In support of her aforesaid submissions, Ms.
Dikshit firstly referred to the decision of this
Court in S. Prakash & Anr. vs. K.M. Kurian & Ors.
[(1999) 5 SCC 624], which deals with the question
of rules of interpretation and in this case the
interpretation of the maxim "generalia specialibus
non derogant" and "generalia specialibus derogant".
The first of the two maxims indicate that general
things do not derogate from special things and it
was held by this Court that although, ordinarily
the special law would override the general law, in
special circumstances if the language of the
18
general provision is clear and unqualifying, it
would prevail over the special provision and the
special provision would have to give way, if the
legislature intended to establish a rule of
universal application. Ms. Dikshit urged that in
the instant case, since there was no existing rule
and only a practice was being followed, when a
special provision was enacted relating to
recruitment, the same would have precedence over
the past practice which had been followed till such
time as the rules were promulgated.
19. Ms. Dikshit also referred to the decision of
this Court in Maya Mathew vs. State of Kerala &
Anr. [2010 (2) SCALE 833], which deals with the
rules of interpretation when a special matter is
governed by two such rules. The ratio which was
laid down by this Court is that if a subsequent law
did not repeal the earlier rule, there cannot be a
presumption that the earlier rule was intended to
be repealed. It was indicated that when two
19
provisions of law, one of which is general and the
other is special, govern the same matter, the court
should make an attempt to give a harmonious
construction to both the provisions, but when there
was a clear expression in the general rules to
exclude the special rules, the same would have to
be given effect to. Applying the aforesaid
decision to the facts of the instant case, Ms.
Dikshit urged that in the present case when special
rules have been framed for appointment to the post
of Pharmacist and earlier appointments to the said
post were made on the basis of the prevailing
practice, it is the enacted rules which would
prevail and the practice as followed so far would
have to give way.
20. On the question of acting on the basis of the
past practice for the purpose of appointment or
promotion, Ms. Dikshit referred to the decision of
this Court in Suraj Prakash Gupta & Ors. vs. State
of J&K & Ors. [(2000) 7 SCC 561], wherein while
20
considering the question of promotion on the basis
of the quota and rota rules, this Court had
occasion to consider the legal value of past
practice in such matters. This Court went on to
hold that in the absence of any provision for rota
in the rules, the same could not be claimed on the
basis of past practice. Ms. Dikshit submitted that
since in the 2003 Rules no mention had been made
regarding the continuance of the appointment to the
post of Pharmacist on the basis of past practice,
both the Single Judge, as well as the Division
Bench of the High Court, had erred in placing
reliance on the said practice and the appointments
to be made on the basis thereof.
21. Ms. Dikshit submitted that out of the 16
Special Leave Petitions being heard, the State is
the petitioner in 12 and the 4 other SLPs have been
filed by the private parties. Ms. Dikshit submitted
that the submissions in respect of all the SLPs are
common to those made in the instant SLP.
21
22. Mr. L. Nageshwar Rao, learned Senior Advocate
appearing for the Respondents in SLP(C)No.21570 of
2006, submitted that the said Special Leave
Petition was in fact the lead matter and all the
other Special Leave Petitions were filed
subsequently for the same relief. Joining issue
with the submissions made by Ms. Dikshit, Mr. Rao
submitted that in order to prevent the perpetrating
of an injustice which had been caused to the
candidates who had successfully completed the
diploma course in Pharmacy prior to 2003 and had
been denied appointment solely on the ground that
those who had completed Pharmacy course before each
year, had to be accommodated first, and were being
denied appointment on the basis that such
appointment could not be made batch-wise, the High
Court had to work out a formula by which they could
also be provided relief without interfering with
the provisions of the 2003 Rules, as has been
indicated in the very beginning of this judgment.
Mr. Rao submitted that in 1998 only a part of the
22
1992 batch of Pharmacists had been appointed in
general category and upto 1997 the reserve category
had been cleared. However, the Respondents were
only concerned with the question of batch-wise
promotion from prior to the promulgation of 1993
Rules on the ground that having been deprived once
on the basis of the past practice, they could not
be deprived for the second time by virtue of the
promulgation of 2003 Rules. Further more, it was
also pointed out that the State Government had
itself admitted in paragraph 22 of its affidavit
that the past practice was being followed for a
long time prior to the promulgation of 2003 Rules.
23. In support of his submissions, Mr. Rao relied
on the decision of this Court in N. Suresh Nathan &
Anr. vs. UOI & Ors. [(1992) Supp. (1) SCC 584],
wherein, while considering the question of
promotion to the post of Assistant Engineer in the
Public Works Department, this Court had occasion to
consider the construction of the service rules in
23
consonance with the long-standing practice in the
concerned department and it was held that such long
standing practice was to be preferred. In fact, in
the said decision, this Court was considering the
decision of the Central Administrative Tribunal
which had held that in considering the question of
preferring the decree holders in Civil Engineering
to Diploma holders in the same discipline, the case
of the decree holders was to be preferred on
account of their superior qualification and
question of past practice could not be introduced
while considering the respective cases of their
promotion. Disagreeing with the view expressed by
the Tribunal, this Court was of the view that the
rules must be interpreted to mean that the three
years' service in the grade of a degree-holder for
the purpose of Rule 11 is three years from the date
of obtaining the degree and that the same is quite
tenable and in conformity with past practice which
had been followed consistently. Accordingly, the
Tribunal was not justified in taking a contrary
24
view and unsettling the settled practice in the
said department.
24. Reference was also made to another decision in
Shailendra Dania & Ors. vs. S.P. Dubey & Ors.
[(2007) 5 SCC 535], where a similar question arose
in connection with the eligibility for promotion
wherein differential service experience based on
differential educational qualifications had been
prescribed and longer period of service experience
was prescribed for diploma holder Junior Engineers
in comparison to degree holder Junior Engineers for
the post of Assistant Engineer. Explaining the
rationale behind the permissibility of making such
a distinction, this Court held that the difference
between the service qualifications has been an
essential criterion for promotion based on interest
of an establishment. While considering the said
question, this Court had also the occasion to
consider the possibility of two views being taken
while interpreting a particular set of service
25
rules. In such a situation, this Court held that
the rules should be interpreted in consonance with
the practice followed by the department for a long
time. In fact, while arriving at such a
conclusion, this Court had also the occasion to
consider the earlier case of N. Suresh Nathan
(supra).
25. Mr. Rao urged that having applied the relevant
Rules in a particular manner at a particular point
of time to the prejudice of the Respondents, the
Petitioners have acted arbitrarily and unfairly in
not applying the same set of Rules, again to the
prejudice of the Respondents, thereby completely
eliminating the chance of appointment in case of
some of the Respondents, who, in the meantime, had
become over-aged. Mr. Rao submitted that such
arbitrariness should not be allowed to continue and
the decision of the Petitioners not to give batch-
wise promotion to those Pharmacists, who have
obtained their diplomas prior to 1998, was liable
26
to be quashed.
26. The same line of submissions was advanced by
Mr. Mukesh Giri, learned Advocate, appearing for
some of the Respondents in SLP(C)No.22678/09 and
SLP(C)No.22749/09. In addition to what was
submitted by Mr. Rao, Mr. Giri submitted that
having regard to Rule 3(g) of the 1980 Rules, the
vacancy position should have been provided by the
State. On the other hand, there was a complete
violation of the provisions of Rules 14 and 15 of
the said Rules which provided for the same.
Reiterating Mr. Rao's submissions, Mr. Giri
submitted that the Respondents could not be denied
an opportunity of employment twice on the basis of
the same set of Rules, but on being applied
differently.
27. Mr. D. Roy Choudhary, learned Senior Advocate,
appearing for some of the Respondents in SLP(C)No.
20558/09 and various other Special Leave Petitions,
contended that if any inconsistencies were to be
27
found in the 1980, 2002 and 2003 Rules, the benefit
would have to be presumed to be in favour of the
Respondents. Mr. Roy Choudhary submitted that the
question of discontinuance of the past practice was
irrelevant and having followed the 1980 Rules
consistently, it was not open to the State to
resile from its position to the detriment of those
candidates who were available for appointment
according to the said Rules, but were not
considered, since the earlier diploma holders in
Pharmacy had to be adjusted against the existing
vacancies. Mr. Giri submitted that the decision of
the High Court was sound and did not require any
interference.
28. Mr. S.K. Verma, learned counsel, who appeared
for the private Respondents in SLP(C)No.22732/09,
also supported the judgment of the High Court and
urged that this was not a case where any of the
candidates, who had the necessary qualifications,
was rejected. On the other hand, it would appear
28
that their cases were deferred in order to
accommodate those diploma-holders who were waiting
from previous batches for appointment in the
vacancies occurring from time to time. He too
submitted that the impugned order of the High Court
did not merit any interference and the Special
Leave Petitions filed by the State of U.P. were
liable to be dismissed.
29. The submissions made by Mr. Rao, Mr. Choudhary
and Mr. Giri were reiterated by Mr. Shree Pal Singh
appearing in SLP(C)No.20558/09. He, however, added
that the Rules of 2000 and 2003 would have to be
read in harmony with the Rules of 1980, which had
not been repealed by the subsequent Rules and
continued to be in existence.
30. Mr. Kailash Vasudev and Mr. P.S. Narasimhan,
learned Senior Advocates, appearing for some of the
Respondents in two of the Special Leave Petitions,
reiterated Mr. Rao's submissions that the practice
29
which had been followed since 1980, could not be
discarded, till all those who were to be benefitted
under the said Rules had been duly accommodated.
In fact, it was submitted that there was no
provision which prevented the State Government from
following such practice merely because of the
intervention of the 2000 and 2003 Rules.
31. We have carefully considered the submissions
made on behalf of the respective parties, having
particular regard to the fact that a practice which
had been consistently followed and had deprived
some of the diploma-holders in Pharmacy earlier, is
now being discarded against them to deprive them of
an opportunity of employment. Although, an attempt
has been made by Ms. Shobha Dikshit to justify the
action of the State authorities, in the face of
apparent injustice caused to the private
Respondents in these Special Leave Petitions, we
are unable to accept her contentions. In our view,
the learned Single Judge while deciding the various
30
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.
32. 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
31
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.
33. 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 & Ors.
(supra) bear no comparison to the facts at issue in
these Special Leave Petitions. There can be no
32
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. 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 & Anr.
(supra) 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.
33
34. 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 S.L.P.
Nos. 20558, 20769, 20774, 20785, 20901, 20908,
22655, 22678, 22732, 22749, 22851, 22955 of 2009,
along with S.L.P.(C) Nos. 25647 and 25649 of 2009,
filed by Vaibhav Kumar Singh and Ors. 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. 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
S.L.Ps also.
34
................................................J.
(ALTAMAS KABIR)
................................................J.
(S.S. NIJJAR)
New Delhi
Dated: August 03, 2010.
35
ITEM NO.1A COURT NO.2 SECTION XI
(FOR JUDGMENT)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil)
No(s).20558/2009
(From the judgement and order dated 04/05/2009 in SA
No.388/2008
of The HIGH COURT OF U.P AT LUCKNOW)
STATE OF U.P.& ANR.
Petitioner(s)
VERSUS
SANTOSH KUMAR MISHRA & ANR.
Respondent(s)
WITH
SLP(C) NO. 20774 of 2009
SLP(C) NO. 20901 of 2009
SLP(C) NO. 20908 of 2009
SLP(C) NO. 22749 of 2009
SLP(C) NO. 22955 of 2009
SLP(C) NO. 25649 of 2009
SLP(C) NO. 20785 of 2009
SLP(C) NO. 20769 of 2009
SLP(C) NO. 22655 of 2009
SLP(C) NO. 22678 of 2009
SLP(C) No. 22732 of 2009
SLP(C) No. 22851 of 2009
SLP(C) No. 25647 of 2009
SLP(C) No. 32977 of 2009
SLP(C) NO. 22114 of 2009
Date: 03/08/2010 These Petitions were called on for
JUDGMENT today.
36
For Petitioner(s)
Ms. Niranjana Singh, Adv.
Ms. Malvka Trivedi, Adv.
Ms. Sunita Sharma, Adv.
Mr. S.K. Sabharwal, Adv.
Mr. Chiraranjan Addey, Adv.
Mr. T. Mahipal, Adv.
Contd..2/-
-2-SLP(C)No.20558/09
Ms. Anu Gupta, Adv.
Mr. S.K. Sabharwal, Adv.
Ms. Priyanka Singh, Adv.
For Respondent(s)
/applicant Mr. Neeraj Shekhar, Adv.
Mr. Praveen Agrawal, Adv.
Ms. Asha Gopalan Nair, Adv.
Dr. Sumant Bharadwaj, Adv.
/applicant Ms. Mridula Ray Bharadwaj, Adv.
Mr. Abhisth Kumar, Adv.
Mr. Pankaj Sharma, Adv.
/intervenor Ms. Archana Singh, Adv.
Ms. Hema Sahu, Adv.
Mr. C.L. Sahu, Adv.
Mr. Mukesh Verma, Adv.
37
Mr. Yash Pal Dhingra, Adv.
Mr. Vivek Vishnoi, Adv.
Mr. Mukesh K. Giri, Adv.
Mr. Vishwajit Singh, Adv.
Ms. S.Janani, Adv.
Mr. Aftab Ali Khan, Adv.
Mr. Shree Pal Singh, Adv.
Mr. Santosh Kumar Tripathi, Adv.
Mr. Dharmendra Kumar Sinha, Adv.
Mr. Harinder Mohan Singh, Adv.
Mr. Ritesh Agrawal, Adv.
Dr.(Mrs.) Vipin Gupta, Adv.
-3-SLP(C)No.20558/09
Mr. Rana Ranjit Singh, Adv.
Ms. Aruna Gupta, Adv.
Mr. R.C. Kaushik, Adv.
Mr. Vivek Singh, Adv.
Mr. Vikas Mehta, Adv.
UPON hearing counsel the Court made the following
O R D E R
Hon'ble Mr. Justice Altamas
Kabir pronounced the judgment of
the Bench comprising His Lordship and
Hon'ble Mr. Justice Surinder Singh
38
Nijjar.
In terms of the signed
judgment, the 12 Special Leave Petitions
filed by the State of U.P., being S.L.P.
Nos. 20558, 20769, 20774, 20785, 20901,
20908, 22655, 22678, 22732, 22749,
22851, 22955 of 2009, along with S.L.P.
(C) Nos. 25647 and 25649 of 2009, filed
by Vaibhav Kumar Singh and Ors. 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.
SLP(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 S.L.Ps also.
(Sheetal Dhingra) (Juginder Kaur)
Court Master Court Masterसरकारी नौकरी - Government of India Jobs Originally published for http://e-sarkarinaukriblog.blogspot.com/ Submit & verify Email for Latest Free Jobs Alerts Subscribe
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION(C) No.20558 of 2009
STATE OF U.P. & ANR. ... Petitioners
Vs.
SANTOSH KUMAR MISHRA & ANR. ... Respondents
WITH
SLP(C)NOS.20769, 20774, 20785, 20901, 20908, 22114,
22655, 22678, 22732, 22749, 22851, 22955, 25647,
25649 & 32977 of 2009
JUDGMENT
ALTAMAS KABIR, J.
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
2
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.
3. 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'.
According to them, 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
3
appointing those Pharmacists who had obtained their
diplomas earlier.
4. 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.
5. The aforesaid controversy was triggered by an
advertisement dated 12th November, 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
4
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.
6. 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
5
the Respondents, were adjusted against the
vacancies first, irrespective of their merit vis-à-
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 Rules of 1980 read
with Rules of 2002, as amended by the Rules of
2003. 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
6
the Allahabad High Court for quashing the above-
mentioned advertisement dated 12th November, 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 year-wise, 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. 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
7
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.
8. 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.
9. 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
8
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
9
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.
11. Appearing for the Petitioners, Ms. Shobha
Dikshit, learned Advocate, submitted that the 1980
Rules prescribe the eligibility conditions for
selection of Pharmacists. Rule 10 provides for the
minimum and maximum ages while Rule 14 provides for
determining the number of vacancies to be filled
during the course of the year. Rule 15 provides the
procedure for direct recruitment by the
constitution of a Selection Committee and
preparation of a select list in order of merit,
10
which would be valid for a period of one year. On
the other hand, the 2003 Rules provide the detailed
procedure for determining the merit and suitability
of candidates with technical qualifications. Ms.
Dikshit submitted that there was no clash or
contradiction between the said two Rules and that
both, therefore, exist side by side.
12. Ms. Dikshit submitted that the 2003 Rules were
being followed by the State Government for direct
recruitment to Class III posts which were outside
the purview of the Public Service Commission, such
as Pharmacists, Lab. Technicians, ECG Technicians,
etc. She submitted that the last advertisement
dated 11th February, 2007 was a composite
advertisement inviting applications from all
paramedical trades such as Pharmacists, Lab.
Technicians, X-ray Technicians, Physiotherapists
and ECG Technicians and selections had already been
made. It was also submitted that while filling the
backlog of reserved category candidates for filling
11
up the posts of Pharmacists for the year 2007, the
Rules of 1980 read with the Rules of 2003 had been
followed and about 73 vacancies had been duly
filled in. Furthermore, since the matters relating
to selection and appointment of Pharmacists were
pending consideration before this Court for other
trades other than the selection of Pharmacists, the
Rules of 2003 had been applied and the selected
candidates had already joined their posts.
13. Ms. Dikshit, submitted that Rule 5 of 2003
Rules made it very clear that only the merit of the
eligible candidates was required to be judged on
the basis of the minimum technical qualifications,
as provided in the Educational Regulation Act,
1991, for the diploma course in Pharmacy, and the
marks obtained in the qualifying examination and
the diploma in Pharmacy are taken into
consideration for determining merit. The method
adopted for allocating certain percentage of marks
as contained in Sub-Rule (2) is only to give more
12
credit to meritorious candidates as compared to
candidates having lesser merit. Ms. Dikshit urged
that the special procedure did not offend Article
14 of the Constitution nor was it contrary to the
1980 Rules, since it did not result in any kind of
bias or prejudice to the candidates of any
particular batch. Ms. Dikshit submitted that all
eligible candidates were graded similarly and the
object of the procedure, as provided in the 2003
rules, is to adjudge the merits of the candidates
on the basis of the technical qualifications
uniformly throughout the State so as to maintain
efficiency in Government service.
14. Ms. Dikshit submitted that the observations
made to the contrary by the learned Single Judge of
the High Court were erroneous and instead of
appreciating the same, the Division Bench also
erroneously accepted the contentions that
notwithstanding the 2003 Rules, the past practice
should be followed. Ms. Dikshit submitted that
13
neither was there any past practice nor was there
any other rule or guidelines for selections to be
made for appointment to the post of Pharmacist
after the year 2003, when the 2002 Rules came into
operation. According to Ms. Dikshit, even
otherwise, the directions issued by the Division
Bench in the impugned judgment would create two
different procedures to select candidates in one
selection process.
15. Ms. Dikshit also urged that the tenor of the
impugned judgment gives the impression that the
State Government had been following a practice of
giving preference to earlier batches over later
batches. According to Ms. Dikshit, such a practice
was factually incorrect and till date, no candidate
from previous batches had been left out. However,
having regard to the decision of the High Court in
case of Rajat Yadav & Anr. vs. State of U.P. & Anr.
(Writ Petition No.2473 (SS) of 2000), issuing a
mandamus to the State Government to accommodate the
14
54 candidates left over from the selection, the
State Government, while implementing the said
direction, had filled up the posts accordingly. In
the process of such an exercise, candidates with
lesser merit came to be appointed, more so, having
regard to the fact that the State Government did
not choose to challenge the correctness of the
judgment. Ms. Dikshit submitted that even on such
grounds the stand of the Respondents that past
practice should be followed in future also ignoring
merit, was not capable of being accepted.
According to Ms. Dikshit, such an action would be
contrary to the 1980 Rules and the established
service jurisprudence. She also pointed out that
the learned Single Judge had come to the positive
conclusion that only an amendment was made to Rule
5(3)(a) since selection could not be undertaken by
computing the marks in terms of the procedure
prescribed, and, on the other hand, selection would
have to take place as per the provisions of Rule
15(2) of the U.P. Pharmacists Service Rules, 1980,
15
on the basis of the marks obtained in the Pharmacy
Diploma Examination, irrespective of the year in
which the candidate had appeared in the Diploma
Examination.
16. Several Special Appeals were filed by the writ
Petitioners before the High Court which were
disposed of by a common judgment dated 4th May,
2009, with a direction that the age of the
Respondents be relaxed as per rule, 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 been granted.
17. Ms. Dikshit further pointed out that while
disposing of the Writ Appeals, the Division Bench
of the High Court had also relied on the submission
that unless the Respondents were considered for
selection, they would lose their right to be
considered for such selection for all times to come
on account of an incorrect interpretation of the
16
Rule, forgetting that the Respondents could have
challenged their non-selection at the time when
they were excluded from the zone of consideration
on the ground that their case would be considered
only after the diploma holders who had obtained
diploma prior to them were accommodated or selected
irrespective of their merit. Ms. Dikshit concluded
on the note that if the State Government had
interpreted the rule in question otherwise and had
adopted a policy which would accommodate all
diploma holders and the same was not challenged by
the Respondents and, on the other hand, the State
Government deliberately and consciously, in the
interest of the diploma holders, adopted a policy
which would accommodate all diploma holders, the
Petitioners could not be penalized for not coming
to court earlier. Ms. Dikshit submitted that
having regard to the rules for appointment to the
post of Pharmacist having been promulgated in the
year 2003, there was no justification in the claim
of the Respondents that for filling up future
17
vacancies the cases of the candidates who had
obtained their diplomas earlier should be
considered for appointment in earlier batches till
such time as all such candidates were accommodated
against the vacancies that existed or were to arise
in future. Ms. Dikshit submitted that the judgment
and order of the learned Single Judge, as also the
Appeal Court, was liable to be set aside.
18. In support of her aforesaid submissions, Ms.
Dikshit firstly referred to the decision of this
Court in S. Prakash & Anr. vs. K.M. Kurian & Ors.
[(1999) 5 SCC 624], which deals with the question
of rules of interpretation and in this case the
interpretation of the maxim "generalia specialibus
non derogant" and "generalia specialibus derogant".
The first of the two maxims indicate that general
things do not derogate from special things and it
was held by this Court that although, ordinarily
the special law would override the general law, in
special circumstances if the language of the
18
general provision is clear and unqualifying, it
would prevail over the special provision and the
special provision would have to give way, if the
legislature intended to establish a rule of
universal application. Ms. Dikshit urged that in
the instant case, since there was no existing rule
and only a practice was being followed, when a
special provision was enacted relating to
recruitment, the same would have precedence over
the past practice which had been followed till such
time as the rules were promulgated.
19. Ms. Dikshit also referred to the decision of
this Court in Maya Mathew vs. State of Kerala &
Anr. [2010 (2) SCALE 833], which deals with the
rules of interpretation when a special matter is
governed by two such rules. The ratio which was
laid down by this Court is that if a subsequent law
did not repeal the earlier rule, there cannot be a
presumption that the earlier rule was intended to
be repealed. It was indicated that when two
19
provisions of law, one of which is general and the
other is special, govern the same matter, the court
should make an attempt to give a harmonious
construction to both the provisions, but when there
was a clear expression in the general rules to
exclude the special rules, the same would have to
be given effect to. Applying the aforesaid
decision to the facts of the instant case, Ms.
Dikshit urged that in the present case when special
rules have been framed for appointment to the post
of Pharmacist and earlier appointments to the said
post were made on the basis of the prevailing
practice, it is the enacted rules which would
prevail and the practice as followed so far would
have to give way.
20. On the question of acting on the basis of the
past practice for the purpose of appointment or
promotion, Ms. Dikshit referred to the decision of
this Court in Suraj Prakash Gupta & Ors. vs. State
of J&K & Ors. [(2000) 7 SCC 561], wherein while
20
considering the question of promotion on the basis
of the quota and rota rules, this Court had
occasion to consider the legal value of past
practice in such matters. This Court went on to
hold that in the absence of any provision for rota
in the rules, the same could not be claimed on the
basis of past practice. Ms. Dikshit submitted that
since in the 2003 Rules no mention had been made
regarding the continuance of the appointment to the
post of Pharmacist on the basis of past practice,
both the Single Judge, as well as the Division
Bench of the High Court, had erred in placing
reliance on the said practice and the appointments
to be made on the basis thereof.
21. Ms. Dikshit submitted that out of the 16
Special Leave Petitions being heard, the State is
the petitioner in 12 and the 4 other SLPs have been
filed by the private parties. Ms. Dikshit submitted
that the submissions in respect of all the SLPs are
common to those made in the instant SLP.
21
22. Mr. L. Nageshwar Rao, learned Senior Advocate
appearing for the Respondents in SLP(C)No.21570 of
2006, submitted that the said Special Leave
Petition was in fact the lead matter and all the
other Special Leave Petitions were filed
subsequently for the same relief. Joining issue
with the submissions made by Ms. Dikshit, Mr. Rao
submitted that in order to prevent the perpetrating
of an injustice which had been caused to the
candidates who had successfully completed the
diploma course in Pharmacy prior to 2003 and had
been denied appointment solely on the ground that
those who had completed Pharmacy course before each
year, had to be accommodated first, and were being
denied appointment on the basis that such
appointment could not be made batch-wise, the High
Court had to work out a formula by which they could
also be provided relief without interfering with
the provisions of the 2003 Rules, as has been
indicated in the very beginning of this judgment.
Mr. Rao submitted that in 1998 only a part of the
22
1992 batch of Pharmacists had been appointed in
general category and upto 1997 the reserve category
had been cleared. However, the Respondents were
only concerned with the question of batch-wise
promotion from prior to the promulgation of 1993
Rules on the ground that having been deprived once
on the basis of the past practice, they could not
be deprived for the second time by virtue of the
promulgation of 2003 Rules. Further more, it was
also pointed out that the State Government had
itself admitted in paragraph 22 of its affidavit
that the past practice was being followed for a
long time prior to the promulgation of 2003 Rules.
23. In support of his submissions, Mr. Rao relied
on the decision of this Court in N. Suresh Nathan &
Anr. vs. UOI & Ors. [(1992) Supp. (1) SCC 584],
wherein, while considering the question of
promotion to the post of Assistant Engineer in the
Public Works Department, this Court had occasion to
consider the construction of the service rules in
23
consonance with the long-standing practice in the
concerned department and it was held that such long
standing practice was to be preferred. In fact, in
the said decision, this Court was considering the
decision of the Central Administrative Tribunal
which had held that in considering the question of
preferring the decree holders in Civil Engineering
to Diploma holders in the same discipline, the case
of the decree holders was to be preferred on
account of their superior qualification and
question of past practice could not be introduced
while considering the respective cases of their
promotion. Disagreeing with the view expressed by
the Tribunal, this Court was of the view that the
rules must be interpreted to mean that the three
years' service in the grade of a degree-holder for
the purpose of Rule 11 is three years from the date
of obtaining the degree and that the same is quite
tenable and in conformity with past practice which
had been followed consistently. Accordingly, the
Tribunal was not justified in taking a contrary
24
view and unsettling the settled practice in the
said department.
24. Reference was also made to another decision in
Shailendra Dania & Ors. vs. S.P. Dubey & Ors.
[(2007) 5 SCC 535], where a similar question arose
in connection with the eligibility for promotion
wherein differential service experience based on
differential educational qualifications had been
prescribed and longer period of service experience
was prescribed for diploma holder Junior Engineers
in comparison to degree holder Junior Engineers for
the post of Assistant Engineer. Explaining the
rationale behind the permissibility of making such
a distinction, this Court held that the difference
between the service qualifications has been an
essential criterion for promotion based on interest
of an establishment. While considering the said
question, this Court had also the occasion to
consider the possibility of two views being taken
while interpreting a particular set of service
25
rules. In such a situation, this Court held that
the rules should be interpreted in consonance with
the practice followed by the department for a long
time. In fact, while arriving at such a
conclusion, this Court had also the occasion to
consider the earlier case of N. Suresh Nathan
(supra).
25. Mr. Rao urged that having applied the relevant
Rules in a particular manner at a particular point
of time to the prejudice of the Respondents, the
Petitioners have acted arbitrarily and unfairly in
not applying the same set of Rules, again to the
prejudice of the Respondents, thereby completely
eliminating the chance of appointment in case of
some of the Respondents, who, in the meantime, had
become over-aged. Mr. Rao submitted that such
arbitrariness should not be allowed to continue and
the decision of the Petitioners not to give batch-
wise promotion to those Pharmacists, who have
obtained their diplomas prior to 1998, was liable
26
to be quashed.
26. The same line of submissions was advanced by
Mr. Mukesh Giri, learned Advocate, appearing for
some of the Respondents in SLP(C)No.22678/09 and
SLP(C)No.22749/09. In addition to what was
submitted by Mr. Rao, Mr. Giri submitted that
having regard to Rule 3(g) of the 1980 Rules, the
vacancy position should have been provided by the
State. On the other hand, there was a complete
violation of the provisions of Rules 14 and 15 of
the said Rules which provided for the same.
Reiterating Mr. Rao's submissions, Mr. Giri
submitted that the Respondents could not be denied
an opportunity of employment twice on the basis of
the same set of Rules, but on being applied
differently.
27. Mr. D. Roy Choudhary, learned Senior Advocate,
appearing for some of the Respondents in SLP(C)No.
20558/09 and various other Special Leave Petitions,
contended that if any inconsistencies were to be
27
found in the 1980, 2002 and 2003 Rules, the benefit
would have to be presumed to be in favour of the
Respondents. Mr. Roy Choudhary submitted that the
question of discontinuance of the past practice was
irrelevant and having followed the 1980 Rules
consistently, it was not open to the State to
resile from its position to the detriment of those
candidates who were available for appointment
according to the said Rules, but were not
considered, since the earlier diploma holders in
Pharmacy had to be adjusted against the existing
vacancies. Mr. Giri submitted that the decision of
the High Court was sound and did not require any
interference.
28. Mr. S.K. Verma, learned counsel, who appeared
for the private Respondents in SLP(C)No.22732/09,
also supported the judgment of the High Court and
urged that this was not a case where any of the
candidates, who had the necessary qualifications,
was rejected. On the other hand, it would appear
28
that their cases were deferred in order to
accommodate those diploma-holders who were waiting
from previous batches for appointment in the
vacancies occurring from time to time. He too
submitted that the impugned order of the High Court
did not merit any interference and the Special
Leave Petitions filed by the State of U.P. were
liable to be dismissed.
29. The submissions made by Mr. Rao, Mr. Choudhary
and Mr. Giri were reiterated by Mr. Shree Pal Singh
appearing in SLP(C)No.20558/09. He, however, added
that the Rules of 2000 and 2003 would have to be
read in harmony with the Rules of 1980, which had
not been repealed by the subsequent Rules and
continued to be in existence.
30. Mr. Kailash Vasudev and Mr. P.S. Narasimhan,
learned Senior Advocates, appearing for some of the
Respondents in two of the Special Leave Petitions,
reiterated Mr. Rao's submissions that the practice
29
which had been followed since 1980, could not be
discarded, till all those who were to be benefitted
under the said Rules had been duly accommodated.
In fact, it was submitted that there was no
provision which prevented the State Government from
following such practice merely because of the
intervention of the 2000 and 2003 Rules.
31. We have carefully considered the submissions
made on behalf of the respective parties, having
particular regard to the fact that a practice which
had been consistently followed and had deprived
some of the diploma-holders in Pharmacy earlier, is
now being discarded against them to deprive them of
an opportunity of employment. Although, an attempt
has been made by Ms. Shobha Dikshit to justify the
action of the State authorities, in the face of
apparent injustice caused to the private
Respondents in these Special Leave Petitions, we
are unable to accept her contentions. In our view,
the learned Single Judge while deciding the various
30
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.
32. 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
31
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.
33. 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 & Ors.
(supra) bear no comparison to the facts at issue in
these Special Leave Petitions. There can be no
32
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. 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 & Anr.
(supra) 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.
33
34. 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 S.L.P.
Nos. 20558, 20769, 20774, 20785, 20901, 20908,
22655, 22678, 22732, 22749, 22851, 22955 of 2009,
along with S.L.P.(C) Nos. 25647 and 25649 of 2009,
filed by Vaibhav Kumar Singh and Ors. 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. 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
S.L.Ps also.
34
................................................J.
(ALTAMAS KABIR)
................................................J.
(S.S. NIJJAR)
New Delhi
Dated: August 03, 2010.
35
ITEM NO.1A COURT NO.2 SECTION XI
(FOR JUDGMENT)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil)
No(s).20558/2009
(From the judgement and order dated 04/05/2009 in SA
No.388/2008
of The HIGH COURT OF U.P AT LUCKNOW)
STATE OF U.P.& ANR.
Petitioner(s)
VERSUS
SANTOSH KUMAR MISHRA & ANR.
Respondent(s)
WITH
SLP(C) NO. 20774 of 2009
SLP(C) NO. 20901 of 2009
SLP(C) NO. 20908 of 2009
SLP(C) NO. 22749 of 2009
SLP(C) NO. 22955 of 2009
SLP(C) NO. 25649 of 2009
SLP(C) NO. 20785 of 2009
SLP(C) NO. 20769 of 2009
SLP(C) NO. 22655 of 2009
SLP(C) NO. 22678 of 2009
SLP(C) No. 22732 of 2009
SLP(C) No. 22851 of 2009
SLP(C) No. 25647 of 2009
SLP(C) No. 32977 of 2009
SLP(C) NO. 22114 of 2009
Date: 03/08/2010 These Petitions were called on for
JUDGMENT today.
36
For Petitioner(s)
Ms. Niranjana Singh, Adv.
Ms. Malvka Trivedi, Adv.
Ms. Sunita Sharma, Adv.
Mr. S.K. Sabharwal, Adv.
Mr. Chiraranjan Addey, Adv.
Mr. T. Mahipal, Adv.
Contd..2/-
-2-SLP(C)No.20558/09
Ms. Anu Gupta, Adv.
Mr. S.K. Sabharwal, Adv.
Ms. Priyanka Singh, Adv.
For Respondent(s)
/applicant Mr. Neeraj Shekhar, Adv.
Mr. Praveen Agrawal, Adv.
Ms. Asha Gopalan Nair, Adv.
Dr. Sumant Bharadwaj, Adv.
/applicant Ms. Mridula Ray Bharadwaj, Adv.
Mr. Abhisth Kumar, Adv.
Mr. Pankaj Sharma, Adv.
/intervenor Ms. Archana Singh, Adv.
Ms. Hema Sahu, Adv.
Mr. C.L. Sahu, Adv.
Mr. Mukesh Verma, Adv.
37
Mr. Yash Pal Dhingra, Adv.
Mr. Vivek Vishnoi, Adv.
Mr. Mukesh K. Giri, Adv.
Mr. Vishwajit Singh, Adv.
Ms. S.Janani, Adv.
Mr. Aftab Ali Khan, Adv.
Mr. Shree Pal Singh, Adv.
Mr. Santosh Kumar Tripathi, Adv.
Mr. Dharmendra Kumar Sinha, Adv.
Mr. Harinder Mohan Singh, Adv.
Mr. Ritesh Agrawal, Adv.
Dr.(Mrs.) Vipin Gupta, Adv.
-3-SLP(C)No.20558/09
Mr. Rana Ranjit Singh, Adv.
Ms. Aruna Gupta, Adv.
Mr. R.C. Kaushik, Adv.
Mr. Vivek Singh, Adv.
Mr. Vikas Mehta, Adv.
UPON hearing counsel the Court made the following
O R D E R
Hon'ble Mr. Justice Altamas
Kabir pronounced the judgment of
the Bench comprising His Lordship and
Hon'ble Mr. Justice Surinder Singh
38
Nijjar.
In terms of the signed
judgment, the 12 Special Leave Petitions
filed by the State of U.P., being S.L.P.
Nos. 20558, 20769, 20774, 20785, 20901,
20908, 22655, 22678, 22732, 22749,
22851, 22955 of 2009, along with S.L.P.
(C) Nos. 25647 and 25649 of 2009, filed
by Vaibhav Kumar Singh and Ors. 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.
SLP(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 S.L.Ps also.
(Sheetal Dhingra) (Juginder Kaur)
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