MADAN LAL (ASI/M) Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition under Articles 226/227 of the Constitution of India, the petitioners have challenged the impugned order of 15th February, 2009 whereby they have been promoted to the rank of Assistant Sub-Inspector (Medic) (ASI/M) in the Sashastra Seema Bal (SSB). Their grievance is that they should have been promoted to the rank of Sub-Inspector (Medic) instead of ASI/M on the date of their eligibility without insistence for their registration under the Pharmacy Act, 1948; that relaxation ought to have been given to them as was given to one Mr. Mohar Singh who was appointed as ASI/M on 5.1.1998. The facts of the case are that the petitioners had been promoted to the rank of Head Constable (Medical) in the year 1992 (while the petitioner No. 6 was promoted in 1996) on the basis of the Recruitment Rules of 1991; that according to Memorandum No. 1/12//84-SCB/SI dated 5.8.1985 issued by the SSB, promotions to the rank of ASI/M and SI/M were to be based on seniority-cum-merit without holding any test, subject to fulfilling other prescribed qualifications. This Memorandum was issued with reference to an earlier Memo dated 3rd June, 1985 dealing with ad hoc promotions of SI/M and ASI (Comp). It recorded that:

(2.) The learned Counsel for the petitioner submits that the aforesaid two Clauses do not refer to any registration of pharmacists under the Pharmacy Act, 1948 but the recruitment rules, subsequently notified on 2nd July, 1991 require that for promotion to the rank of ASI/M, a candidate must possess qualification specified under Section 31(d) of the Pharmacy Act, 1948 and registered under Section 33 of the said Act. He submits that since the post was to be filled 100% by promotion and since such a requirement did not exist for the earlier rank of Constable or Head Constable, the requirement at the promotional level of ASI/M was without reason, arbitrary and therefore, liable to be quashed. He further submits that in view of the Government having already acknowledged vide Memorandum dated 5.8.1985 that registration of pharmacist had been closed in many States and there was no prospect of its re-opening in the near future, the insistence upon registration and possession of the said qualifications is ex facie, impractical, unjustified and onerous upon Head Constables (Medic). He submits that for the identically placed, direct recruits, although the said condition is supposedly binding, the respondents have not insisted upon it but indeed in the face of it have directly recruited one Mr. Mohar Singh as ASI on 5.1.1998 to the said post. He submits that the said ASI possesses no qualification better than the petitioners.

(3.) In reply, the respondents have submitted that the said person was reemployed in SSB with effect from 15.1.1998, being qualified in various courses of Medical Cadre in the Army which are (i) General Nursing Technical Class IV of 9 months duration, (ii) General Nursing Technical Class III of 9 months duration, (iii) General Nursing Technical Class II of 6 months duration and (iv) General Nursing Technical Class I of 12 months duration. The justification being that the Recruitment Rules of 1991 itself provided for the re-employment of ex-servicemen, who had held the same or equivalent ranks in the Armed Forces. However, on 1st September, 2008, the Government of India has notified the Sashastra Seema Bal Combatised Medics Cadre (Non-professional) Group 'C posts Recruitment Rules, 2008 for the Sashastra Seema Bal (SSB). It dropped the requirement of registration under the Pharmacy Act, 1948 for the rank of ASI/M. The notification was made applicable from the date of its publication in the Official Gazette i.e., from 19th September, 2008; therefore, it was to be prospective. The impugned order dated 15.2.2009 was issued under the said Recruitment Rules.