PREM CHANDRA Vs. STATE OF U P

JUDGEMENT

(1.) HEARD the learned counsel for the appellants Sri S.K. Kalia, Senior Advocate, Dr. L.P. Misra, Sri V.B. Kalia, Sri R.C. Tiwari and Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel for the State. Though there is some delay in some of the special appeals, but we condone the delay. This is a bunch of special appeals challenging the order passed by the learned Single Judge dated 23.5.08 by means of which, though on the one hand they have been given the benefit of relaxation in age as per the Rules of 2002, but on the other hand, they have been deprived of being selected and given appointment on the post of Pharmacist in terms of 1980 Rules, a direction having been issued that the select list shall be prepared for the vacancies advertised in accordance with Rule 15(2) of the U.P. Pharmacists Service Rules, 1980 and the selection shall be made strictly on the criteria of merit irrespective of the batch, in which the incumbent has obtained the Pharmacy diploma. To understand the controversy, it would be relevant to have a glance at the relevant facts involved in the matter. The appellants who have passed diploma course in Pharmacy from various institutions, recognized by Pharmacy Council of India in different years and have been duly registered with the State Pharmacy Council of U.P., claim selection and appointment on the post of Pharmacist, which is governed by Rules known as U.P. Pharmacists Service Rules, 1980 (hereinafter referred to as 'Rules of 1980') interpreting Rule 15(2) in a manner so that all diploma holders are accommodated/appointed on the vacancies, which become available in each recruitment year, by first accommodating the Pharmacists, who have obtained diploma prior to the Pharmacists, who have obtained diploma later on. In other words, they claim appointment on the post of Pharmacist on the basis of their batches and pray that the selection should be made by giving the appointment to the Pharmacist, first who have cleared diploma course in the earlier batches irrespective of their merit. The prayer in nutshell is that the Pharmacist be given appointment by keeping in mind the date of passing of the diploma course, namely, batch wise and till the incumbent of the prior batches are considered for appointment, the diploma holders of the subsequent batch be not given appointment irrespective of their merit. The cause of action for filing the writ petitions, out of which the present special appeals have arisen, is the advertisement dated 12.11.07 by means of which, 766 vacancies were advertised for filling up the post by diploma holders. The advertisement provided that the recruitment shall be made in accordance with U.P. Procedure for Direct Recruitment of Group 'C' Posts (outside the Purview of Public Service Commission) Rules, 2002 as amended by 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 as may be in force with respect to educational qualification and other conditions of service. The appellants felt that as per the interpretation made of the aforesaid Rule 15(2) of 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 irrespective of their merit being higher to some of the diploma holders, who had obtained diploma prior in time, were first to be given appointment. Thus, the diploma holders who had obtained diploma before the appellants were first adjusted irrespective of the inter se merit of the diploma holders of subsequent batches and this practice continued till the year 2002, though the last selection was made in the year 1998 and now when the appellants are to be appointed on the same principle and practice, which was prevalent in the State Government continuously, they are being shown the door by relying upon the Rules, namely, Rules of 1980 read with Rules of 2002 as amended by Rules of 2003. Submission in nutshell is that the appellants cannot be treated inequally or discriminated again and it is not open to the State Government to take different stand even in the matter of interpretation of Rules, which affects the appellants adversely, though similarly situated persons had been given the benefit otherwise throughout right from the very beginning. Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel, defending the order passed by the learned Single Judge, submitted that the interpretation of Rule is not dependent upon the wisdom of the State Government in following the Rules and unless it is established by the appellants that the interpretation of Rule 15(2) given by the learned Single Judge does not flow from the Rule itself, this Court would not interfere with the order passed, nor would be guided by the sympathy upon the persons who could not be given appointment till date. To buttress the aforesaid submission, she further argued that a glimpse of 1980 Rules and in particular Rules 14 and 15 would decide without any reservation, that the selection/appointment has to be made on the post of Pharmacist by preparing a merit list against the number of vacancies determined for a particular recruitment year and the appointment is to be made in pursuance of the said merit list. In case the vacancies stand filled up from amongst the merit list so prepared absorbing a particular number of finally selected candidate, the remaining candidates though may be on the select list, would not have any right to seek appointment in subsequent year of recruitment, as the selection once made for a particular year stands exhausted, the moment all the vacancies advertised are filled up. Rule 14 requires determination of vacancies and says that the Director shall determine the number of vacancies to be filled in during the course of the year as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and such other categories under Rule 6. He shall notify the vacancies to the Employment Exchange and shall also advertise them in leading newspapers and in such other manner as may be considered proper by him. Rule 15 is the procedure for direct recruitment, in which sub-clause (1) envisages that for the purpose of recruitment, there shall be constituted a Selection Committee and sub-clause (2) says that the Selection Committee shall prepare a list of candidates in order of merit as disclosed by marks obtained by them in diploma examination. If two or more candidates obtained equal marks, the Selection Committee shall arrange their names in order of merit on the basis of their general suitability for the post. The number of the names in the list shall be larger (but not larger by more than 25 per cent) than the number of vacancies. The list so prepared shall hold good for one year only. Sub-clause (3) says that the Director shall forward the requisite number of names in order of merit, from the list to the concerned appointing authority/appointing authorities. We have considered the arguments from both the sides with respect to interpretation of Rules 14 and 15 and in particular Rule 15(2) and we find that the interpretation given by the learned Single Judge cannot be faulted on the ground that these Rules require continuation of process of selection for all subsequent years from amongst the batches of Pharmacists, who have secured diploma in the previous years and also in the subsequent years. But it requires consideration that if a particular Rule has been interpreted by the State Government throughout from its inception in a particular manner leading to give advantage to some Pharmacists/incumbents, though they form a similar and identical class, and at the same time resulting into disadvantage or denial of their right of appointment to the present appellants-Pharmacists, when they were entitled to be considered for appointment under the same very Rule at a later stage of time. The candidates who remained at the disadvantaged end, both at the time of selection earlier made and also now when the selection is to be made whether can be protected as the procedure under the same very rule, which has been followed by the State Government throughout has not been opposed by anyone till date and that the present appellants, who belonged to different batches right from the year 1992 upto the year 2002, are in agreement that they would not have any objection if the same very practice is followed for giving appointment to all the Pharmacists, who have secured their diploma, prior in time i.e. batch wise and are before this Court in appeal, till the Rules of 2002 came into force. The controversy regarding the interpretation of Rules earlier came into consideration before the learned Single Judge in a bunch of writ petitions, in re: Writ Petition No.2473 (SS) of 2000, Rajat Yadav and another vs. State of U.P. and another, alongwith other connected matters, wherein the learned Single Judge noticed the practice prevailing in the department in the matter of selection of Pharmacists and upheld the said practice and made the following observations: "In view of their position in the select/waiting list, all the petitioners were entitled to be offered appointments. Otherwise also, the Pharmacists, who have completed their course and got registered with the U.P. Pharmacy Counsel, prior to the candidates who obtained diplomas in subsequent years, were entitled on account of the practice prevailing in the department. Learned Standing Counsel for the State has admitted that such a practice still prevails. When it was the position, the year-wise sequence should have been maintained in the matter of appointments of Pharmacists and the irregular appointments, as mentioned in earlier part of the judgement, should not have been made. Even if some enquiries have been ordered in the matter of irregular appointments, it will not restore the humiliation of the petitioners, who had become Diploma Holders prior in time to the regular appointees. Termination of some of the appointees like Manoj Kumar and Kamal was also a proof in support of the petitioners' contention that the authorities adopted illegal course while offering appointments to the Pharmacists of subsequent years." A mandamus was issued by the learned Single Judge to the opposite parties to appoint the petitioners on the vacancies, which remained unfilled after select list was prepared in pursuance of the Notification dated 28.8.1998 and the appointments were to be offered within one month. We are informed by the learned counsel for the State that this order of the High Court was complied with and the persons concerned by the order were given appointments. It is also relevant to mention that there were circulars and instructions issued by the State Government, reiterating the said stand in the matter of making appointment on the post of Pharmacists and one such circular is dated 17.3.1997, which has been issued by the State Government to the Director General, Medical and Health, U.P. Lucknow, directing that the appointment on the post of Pharmacists shall be made in the same manner, as was done earlier in the years 1995 and 1997. Likewise several instructions were issued, but, of course, before issuance of the advertisement in question and, therefore, the Rules of 2002 came into force. Learned counsel for the State has made a reference to the judgement passed by the learned Single Judge at Allahabad in the case of Dharmendra Singh and others vs. State of U.P. and others, 2006(1) ESC 582 (ALL), wherein the Court again made an observation with respect to interpretation of Rule 15(2) and observed as follows: "This Court may also record that the procedure which was adopted by the Selection Committee for preparing the merit list in the year 1998 was not in strict compliance of Rule 15 of the Pharmacy Service Rules, 1998, inasmuch as under the Rules merit list is to be prepared on the basis of the marks obtained in the Pharmacy Diploma examination irrespective of the year in which the applicant had appeared in the diploma examination. However, this Court in the present case is not inclined to upset the merit list which had been prepared in the year 1998 as none of the petitioners had challenged the same within reasonable time i.e. when the same was declared and appointments were offered nearly 13 years ago. Moreover, the petitioners have approached this Court seeking similar treatment as in other cases on the basis of the same merit list prepared by the Selection Committee with reference Rule 15 of the Pharmacy Rules in the year 1998." The issue in the aforesaid writ petitions was slightly different than the interpretation of Rule 15(2). In these writ petitions, the petitioners claimed parity of the judgement and order passed in the case of Rajat Yadav in the matter of appointment. The learned Single Judge though made the aforesaid observation, but protected the interest of the Pharmacists by not interfering with the selection and observed that the Court was not inclined to upset the merit list which had been prepared in the year 1998 as none of the petitioners had challenged the same within reasonable time. This order has not been challenged by the State Government and the directives issued therein did not upset the practice which was being followed by the State Government in making appointments. In the case of Shailendra Dania and others vs. S.P. Dubey and others, (2007) 5 SCC 535, the apex court had an occasion to consider the impact of the Rules which permitted the promotion of diploma holders with eight years qualifying service on the post of Junior Engineer with 50% of the post being filled up from the Junior Engineers who were graduate Engineering degree-holders with three years qualifying experience. The question arose as to whether this three years qualifying experience would be counted from the date of passing the degree or the entire length of service even before such incumbent has obtained the degree. In the aforesaid case, while considering the case of N.Suresh Nathan vs. Union of India, 1992 Supp. (1) SCC 584, and other cases, the apex court observed as under: "From a reading of the decision rendered by this Court, one thing is clear to us that the decisions in N. Suresh Nathan, M.B. Joshi, D. Stephen Joseph, Anil Kumar Gupta, A.K. Raghumani Singh and Indian Airlines Ltd., are based on the interpretation of the respective rules called in question, giving meaning to the words used in the context of the entire scheme governing service conditions and the facts involved in each case and it cannot be said that the decision rendered by this Court after the decision of N.Suresh Nathan case have taken a different view than what has been decided in N.Suresh Nathan case. Thus, we are required to decide the matter on the basis of the entire scheme of the Rules, the facts and circumstances at the relevant time and the Rules called in question before us, independently giving meaning to the words, the principle involved and the past practice, if any, which is in consonance with the interpretation given by us to the Rule. If we find that two views are possible after interpreting the Rule, then the Rule would be interpreted keeping with the practice followed in the Department for a long time and thus, the practice practically acquired status of rule in the Department." The learned Single Judge has though found that the Rules of 2002 as amended by Rules of 2003, are not applicable and cannot be made applicable, the same being not workable and, therefore, for the reason given in the order, he has observed that unless the Rules are amended, the same cannot be applied to the post of Pharmacist and till these Rules are amended, the merit has to be determined by pre-existing Rules, i.e. Rules of 1980. Thus, we have no doubt that so far the Rules of 2003 and 2002 are concerned, they cannot be applied in the present selection and, therefore, the advertisement issued, which prescribes for making selection on the post of Pharmacist cannot be given effect to, unless the Rules are amended. The next question, which arises for consideration is, as to whether in view of the observations made by the learned Single Judge about Rule 15(2), the appellants and other like diploma holders who might not have approached the Court earlier, when they were denied consideration for appointment, in the presence of diploma holders of prior batches, irrespective of their higher merit, can be given opportunity of selection/appointment before the selection is made strictly in accordance with the merit list irrespective of the batch in which the diploma holders have obtained the diploma. The plea of the appellants that they have been deprived of their appointment by giving two different interpretations of the same Rules, requires us to consider that despite the appellants having no right to plead legitimate expectation or to imply the doctrine of promissory estoppel, whether they can still claim selection/appointment on the basis of pre-existing practice. In case this Court finds that the appellants are entitled to the same benefit, which has been extended to their counterparts continuously, the natural consequence would be that they would have to be considered by the State Government while making recruitment on the advertised vacancies, but in case the answer to the aforesaid plea is that in view of the specific rule, they do not have any right to be considered, they cannot claim any appointment. The appellants are diploma holders. They obtained diploma in various batches in different years and as informed by the parties' counsel, almost all the batches are represented by atleast one or two diploma holders. Irrespective of their year of award of diploma, all are in agreement and say that they would have no objection in case the present appellants, who have obtained diploma are first considered, batch wise irrespective of their merit, i.e. to say by adopting the same process, which was being followed during all this period by the State Government. It is also not in dispute that the selection right from the very beginning was being made till the present selection, on the basis of the same principle and applying the same criteria. The appellants thus, stand to loose their right of being considered for selection for all times so to say because of an incorrect interpretation of the Rule. True, that the appellants could have challenged their non-selection at the time when they were excluded from the zone of consideration on the ground that they would be considered only when diploma holders who had obtained diploma prior to them are accommodated/selected irrespective of their merit, but in view of the methodology adopted by the State Government and instructions issued, not only oral, but also in writing to the Departmental Head, namely, Director General reminding that the selection must be made only by following the procedure, which is prevalent, namely, by offering the appointment first to those, who have obtained diploma prior in time, there was no occasion for the appellants to approach the Court as they were bona fide, waiting for their turn and felt assured to be considered for appointment, whenever their turn comes. If the State Government had interpreted the Rule as aforesaid and it not being a case where the Rule was not in the knowledge of the State Government, but the State Government deliberately, consciously and in the interest of diploma holders adopted a policy, which would accommodate all diploma holders, therefore, if the appellants did not challenge their exclusion from consideration on the aforesaid ground, they cannot be penalized for not coming to the Court earlier, particularly when time and again instructions were issued by the State Government to follow the same procedure in making the appointments Learned counsel for the State, however, submitted that the State Government had not given any assurance to the appellants at any point of time. We do agree with the aforesaid argument but this Court is not dealing with an issue of representation being made by the State Government to the appellants so as to alter their position to their disadvantage, but it was only an expectation which the appellants bona fide believed to be an assurance, in view of the definite stand of the State Government, which was reflected from past practice and also by the directions issued, till the selection of the year 1998, repeatedly by issuing circulars and directions to the Head of Department, which was the last selection and thereafter no fresh selection has been made. In the supplementary affidavit dated 6.4.09 filed before us by the State Government, it has been reiterated as follows: "5. That the petitioners' counsel during the course of argument of the aforesaid special appeal brought to the notice of the Hon'ble Court that all along there has been a practice in the department concerned of appointing Pharmacists who pass out each year from various institutions on post/vacancies occurring for direct recruitment in that particular year. The petitioners alleged that this practice continued to be followed upto 1998 but after 1998 there were no selections held on an annual basis till the advertisement was issued on 12.11.07 for the current selection proposed to be held. Because of non determination of vacancies each year, nor advertising the same for selection for that particular year, the settled practice to marking year-wise and batch-wise selections got disturbed. The petitioners alleged that because of accumulation of vacancies for several years, the department has taken a new stand that 0 now selection shall be held strictly in accordance with merit and not in accordance with the earlier practice making year-wise/batch-wise selections. 6. That it has been department's case all along that the earlier practice which was being followed by the department of which mention has also been made in the various judgements of the Hon'ble Single Judge relied upon by the petitioners like that of Rajat Yadav and Dharmendra Singh has been disapproved and commented upon adversely in the decision rendered on 8.12.05 in the writ petition of Dharmendra Singh and others vs. State of U.P. and others, reported in 2006 (1) ESC page 582, wherein in paragraph - 20 and 21, the Hon'ble Single Judge had held that the selections held in the year 1998 and the merit list prepared was not in strict compliance of Rule 15 of the Pharmacy Service Rules, 1980 inasmuch as under the Rules, merit list is to be prepared on the basis of marks obtained in the Pharmacy Diploma Examination, irrespective of the year in which the applicant had appeared in the diploma examination. As a result of this adverse comment being made on the earlier select list by the Hon'ble Court, the department has taken a decision to follow Rule-14 and 15 of the Service Rules of 1982 to the letter, now the department cannot make year-wise and batch-wise selections and accommodate the petitioners in the vacancies occurring of the year in which they had passed out." This shows that the State Government was continuously under the bona fide impression that the selection was to be made in the manner which was being followed by them. It has been submitted by the counsel for the appellants as well as learned counsel for the State that few hundred diploma holders, who belong to different batches right from the year 1992 to 2002 are in queue seeking appointment and they have been denied appointment earlier on the ground that diploma holders belonging to prior batches are still to be appointed, and the diploma holders of prior batches have to be accommodated first, as per the policy and process of selection, which was prevalent in the department and their merit will not allow them to be appointed in the presence of the diploma holders of earlier batches (years). But today, when they became entitled for being appointed on the same very principle, i.e. having obtained diploma, prior in time than the Pharmacists of subsequent batches, they are again being denied appointment on the ground that the selection has to be made strictly on merit, irrespective of the batch in accordance with the Rules of 2002, read with Rules of 2003 as well as 1980 Rules. The appellants though, under the rules were entitled to be appointed on the basis of their merit, even in the presence of diploma holders of prior batch of lower merit, but were denied consideration for appointment because of the procedure adopted by the State Government in making the appointments, 1 with the result, persons of comparatively lower merit were appointed and are in service, whereas the appellants stand ousted even from the zone of consideration. We are informed that about 300 diploma holders falling in the same category are before this Court who have been fighting for their cause and, therefore, we feel that the directives issued in these appeals be confined only to those persons who are vigilant and have approached this Court and those who have succumbed to their ouster, would not get the benefit of this order. We may also clarify that as per the statistics given by the appellants' counsel, there were about 800 writ petitioners but after the decision of the learned Single Judge, only about 300 persons are before this Court and rest of them left themselves to their fate. Such persons cannot be entitled to the benefit of this order. Rule 15 (2) whether can be interpreted in two ways or not is not relevant for the present controversy as the interpretation given by the State Government makes it clear that under the impression that the Rules so provide, all selections have been made till date and, therefore, the appellants who are before this court are also entitled to be considered in the same manner in which the cases of other similarly situated persons have been considered. Any other order passed by this court would not only defeat their right of appointment for no fault of theirs, but would also deprive them of their right of consideration for appointment by their total exclusion from the zone of consideration, by interpreting the rule, on both the occasions, against their interest. A peculiar and a piquant situation has arisen in the instant case, where it is not the case, that an aspirant of the higher post in service on becoming eligible for promotion or a person seeking direct appointment on the date when he is to be considered for such a promotion or appointment, seeks to interpret the rule of recruitment in a particular manner, looking to the past practice, to his advantage, but here is a case, where the appellants were excluded from consideration of their appointment at the relevant time earlier, by interpreting the rule to their disadvantage, and were made to believe that likewise their candidature shall be considered later on, for which various circulars and instructions were also issued by the State Government, but when their turn came for getting employment, they are again being put out of consideration, by interpreting the rule in a different manner. Injustice thus, caused to them, in the hands of the State Government, therefore, requires to be corrected. 2 We also take notice of the fact that under the present advertisement, 766 vacancies have been notified, therefore, the present appellants, who are much less in number, can also be considered for appointment, leaving sizeable vacancies for the rest of the candidates. We, therefore, dispose of these special appeals with the direction that the appellants' cases shall be considered in accordance with the pre-existing practice by considering their appointment on the basis of their merit taking their batches into consideration as was being done earlier but this process would be available only for the appellants and they would be accommodated if they are otherwise found eligible and the remaining vacancies would be filled in by following Rule 15 (2) strictly as directed by the learned Single Judge. At this juncture, Dr. L.P. Misra placed before the Court U.P. Lok Seva (Bharti Ke Liye Aayu Seema Ka Shithilikaran) Niyamawali, 1992, in support of his submission that the appellants are entitled to be given the age relaxation. We without entering into this question in detail, do observe that the age relaxation be given to the appellants as per rules, if they have crossed the age limit for the reason that right from the year 1998, no selection has been made and in certain cases, age relaxation has been granted. The selection process be completed within three months from the date of receipt of a certified copy of this order. All the special appeals are disposed of accordingly.