REPORTABL E

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.22590 OF 2011

KISHOR KUMAR & ORS. … PETITIONERS                 Vs.

PRADEEP SHUKLA & ORS.       … RESPONDENTS

WITH S.L.P.(C) NOS.27086 OF 2011 AND 4130 OF 2012

J U D G M E N T

ALTAMAS KABIR, J.

1. These  three  Special  Leave  Petitions  are  

directed  against  the  judgment  and  order  dated

12.7.2011,  passed  by  the  Lucknow  Bench  of  the  

Allahabad  High  Court  in  C.P.  No.2209  of  2009,  

affirming  the  order  of  the  learned  Single  Judge  

which had been upheld by the Division Bench of the  

High Court regarding the appointment of Pharmacists  

in the State of Uttar Pradesh.  So as to understand  

how  the  matter  reached  the  High  Court,  it  is  

necessary to set out a few facts which led to the  

filing of the Writ Petitions.  

2. By way of an advertisement dated 12.11.2007,  

766 vacancies were advertised for being filled up  

by diploma holders in Pharmacy. The advertisement  

provided that the recruitment could be done as per  

the U.P. Procedure for Direct Recruitment of Group  

‘C’ Posts (Outside the Purview of Public Service  

Commission) Rules, 2000.  The said advertisement  

led  to  controversies  as  to  how  the  appointments  

were to be filled up.  

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3. According  to  the  Respondents,  the  

interpretation  of  Rule  15(2)  of  the  U.P.  

Pharmacists  Service  Rules,  1980,  hereinafter  

referred  to  as  the  “1980  Rules”,  required  the  

diploma  holders  to  be  appointed  against  the  

vacancies  which  became  available  in  each  

recruitment  year,  by  first  appointing  those  

Pharmacists  who  had  obtained  their  diplomas  

earlier. It was their claim that appointment to the  

post of Pharmacist could be made batch-wise from  

each year and that the vacancies which had accrued  

were required to be filled up by giving appointment  

to  those  Pharmacists  according  to  the  dates  on  

which they obtained their diplomas, irrespective of  

their merit.  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  in  respect  of  the  

vacancies advertised, as they belonged to previous  

batches  and  had  been  denied  appointment  by  the  

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State  Government  earlier  on  the  plea  that  

notwithstanding their merit being superior to some  

of  the  diploma  holders,  those  who  had  obtained  

diplomas  prior  to  the  Respondents,  had  to  be  

adjusted against the vacancies first, irrespective  

of  their  merit.   It  was  submitted  that  those  

diploma  holders  who  had  obtained  their  diplomas  

before the Respondents, should be adjusted first  

against  the  vacancies  available,  irrespective  of  

their  merit,  vis-à-vis  the  diploma  holders  of  

subsequent  batches  and  the  said  practice  was  

continued till 2002.

4. Questioning the interpretation of Rule 15(2) of  

the 1980 Rules, several Writ Petitions were filed  

before  the  Lucknow  Bench  of  the  Allahabad  High  

Court  for  quashing  the  advertisement  dated  

12.11.2007  and  for  a  writ  in  the  nature  of  

Mandamus to command the concerned authorities to  

effect  recruitment  to  the  post  of  Pharmacist  

strictly in accordance with Rules 14 and 15 of the  

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1980 Rules, by specifying the vacancies year-wise,  

and, thereafter, appointing the Writ Petitioners to  

the  post  of  Pharmacist  after  providing  for  age  

relaxation.    

5. According to the Respondents, it was not open  

to  the  State  Government  to  interpret  the  Rules  

differently to the prejudice of the Respondents’  

right  to  appointment,  though  similarly  situated  

persons  had  been  given  the  benefit  of  the  said  

Rules  under  which  the  Respondents  were  denied  

appointment when their turn came to be appointed.  

The order passed by the learned Single Judge, while  

disposing of various Writ Petitions, was challenged  

by the Respondents in several Writ Appeals before  

the  Division  Bench  of  the  Lucknow  Bench  of  the  

Allahabad High Court, which after recognizing the  

anomalous position which had arisen, disposed of  

the various Appeals with a direction that the case  

of the Appellants would be considered in accordance  

with the pre-existing practice by considering their  

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appointment on the basis of their merit, but that  

the said process would be available only for the  

Appellants.  It was directed that they would be  

accommodated if they were otherwise found eligible  

and the remaining vacancies would be filled up by  

following Rule 15(2) of the 1980 Rules strictly.

6. The said decision of the Division Bench came to  

be challenged before this Court by the State of  

U.P.  by  way  of  Special  Leave  Petition  (Civil)  

Nos.20558  of  2009,  which  was  heard  along  with  

several other Special Leave Petitions, where the  

issue was the same.  During the course of hearing  

of the Special Leave Petitions, the main question  

which fell for decision was whether the Rules could  

be applied differently at different points of time,  

in order to deny the benefit of appointment to the  

same group of people at such different points of  

time. It was also indicated by the Division Bench  

that the State Government had acted arbitrarily and  

unfairly in not applying the same set of Rules when  

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the turn of the Respondents came to be appointed on  

the  basis  thereof  on  the  ground  that  they  have  

become over-age. It had been submitted that such  

arbitrariness could not be allowed to continue and  

the decision of the State and its authorities not  

to give batch-wise promotion to those Pharmacists,  

who had obtained their diplomas prior to 1988, was  

liable to be quashed.   

7. Some of the Petitioners moved the High Court  

for implementing the order dated 4.5.2009 passed by  

the Division Bench of the said Court.  Inasmuch as,  

the applications were not being disposed of, one  

Sunil Kumar Rai and others moved Contempt Petition  

No.2209  of  2009  before  the  High  Court  alleging  

willful contempt on the part of the State and its  

authorities  in  not  implementing  the  directions  

given by the Division Bench on 4.5.2009. During the  

hearing  of  the  Contempt  Petition,  it  was  also  

pointed out that the said order of the Division  

Bench  of  the  High  Court  had  been  challenged  in  

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Special Leave Petition (Civil) No.22665 of 2009,  

and that while issuing notice, this Court did not  

stay the operation of the judgment and order passed  

by the Division Bench on 4.5.2009.   

8. Upholding the decision of the Division Bench of  

the High Court, this Court did not interfere with  

the same and dismissed the Special Leave Petitions  

vide judgment dated 3.8.2010 titled State of U.P. &  

Anr. Vs.  Santosh Kumar Mishra & Ors. reported in  

(2010) 9 SCC 52, and directed that the decision  

taken by the State Government to accommodate the  

diploma holders in batches against their respective  

years, could be discontinued at a later stage, but  

not  to  the  disadvantage  to  those  who  had  been  

denied the opportunity of being appointed by virtue  

of the same Rules. This Court observed that the  

same  decision  which  was  taken  to  deprive  the  

private Respondents from being appointed, could not  

be discarded once again to their disadvantage to  

prevent them from being appointed, introducing the  

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concept of merit selection at a later stage. It was  

further directed that the subsequent policy could  

be  introduced  after  the  private  Respondents  and  

those  similarly  situated  persons  have  been  

accommodated.  

9. After the aforesaid judgment of this Court, a  select list was prepared on 14.2.2011, which was  

again challenged by way of several Writ Petitions,  

of which the lead matter was Writ Petition No.1186  

of 2011 filed by Pawan Kumar and others, against  

the State of U.P. and others. On 4.3.2011, the High  

Court stayed the select list prepared on 14.2.2011  

and  directed  not  to  make  any  appointments  

therefrom.   At  the  same,  time,  the  contempt  

proceedings were also take up for consideration and  

on  12.7.2011,  in  the  said  proceedings  the  High  

Court directed the official respondents to prepare  

a fresh select list.   

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10. It is in such background that these Special  

Leave Petitions came to be filed by candidates who  

had not been selected for appointment on the ground  

that despite having better merit, they had not been  

selected for filling up the 766 vacancies.  

11. The submissions which had been previously urged  

when the earlier batch of Special Leave Petitions  

were  disposed  of,  were  reiterated  during  the  

hearing  of  these  Special  Leave  Petitions.  An  

attempt was made to re-open the issue by urging  

that the Petitioners have been over-looked, despite  

their better merit.  

12. We are unable to accept the said submissions on  

account of the fact that the matter has already  

been  decided  and  it  has  been  directed  by  this  

Court, following the decision of the Division Bench  

of the High Court, that the candidates could be  

appointed against the vacancies in order of their  

inter-se seniority as per the vacancies available  

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in each year. That being so and having regard to  

the  earlier  decision  of  this  Court  referred  to  

hereinabove, we see no reason to interfere with the  

order of the Division Bench of the High Court.   

13. The Special Leave Petitions are, accordingly,  

dismissed, but without any order as to costs.  

14. All  the  pending  applications  shall  stand  

disposed of by virtue of this judgment. As we have  

observed  hereinabove,  all  candidates,  who  were  

similarly  situated  as  the  original  petitioners,  

would be entitled to the benefit of the judgment  

delivered in State of U.P. & Anr. Vs. Santosh Kumar  

Mishra & Ors. (supra).     

………………………………………………………J.    (ALTAMAS KABIR)

………………………………………………………J.                      (J. CHELAMESWAR)

New Delhi Dated:29.2.2012

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