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2005 DIGILAW 1467 (ALL)

Kishore Kumar v. State of U. P.

2005-08-10

N.K.MEHROTRA

body2005
ORDER : N.K. Mehrotra, J. This is a writ petition under Article 226 of the Constitution for issuing a writ in the nature of mandamus commanding the opposite parties to consider the case of the Petitioners for appointment to the post of Pharmacist (Allopathy) by extending the benefit of the judgment and order dated 28.5.2004 passed in Writ Petition No. 2473 (S/S) of 2000, Rajat Yadav and Ors. v. State of Uttar Pradesh and Ors. 2. The case of the Petitioners is that they have completed their Diploma in Pharmacy in the year 1996-1997. It is alleged that 475 posts of Pharmacists were advertised on 28.8.1998. The Petitioners had applied for that post but they were not given appointment, although their juniors belonging to O.B.C. category have been given appointments as they have completed their Diploma Course in Pharmacy in the years 1996 and 1997 and the Petitioners have completed their Diploma in the year 1997. 3. In Writ Petition No. 2473 (S/S) of 2000, Rajat Yadav and Ors. v. State of Uttar Pradesh and Ors. along with 18 connected writ petitions, the names of the Petitioners were included in the select list prepared in pursuance of the advertisement issued on 28.8.1998 and several candidates of the select list had not joined within a period of one year during which the waiting list remains valid. Since, the Petitioners of those writ petitions were in the waiting list, this Court directed to give appointment to those Petitioners who had become entitled for getting appointment against the advertised vacancy which could not be filled up because of the non-joining of the candidates selected against the advertised vacancies. I find that it is nowhere pleaded in the writ petition that the Petitioners' names were also included in the select list or in the waiting list. The case of the Petitioners is that they were senior to those persons who were given appointment but it is not clear as to how the Petitioners claim themselves senior to those persons who were given appointment in pursuance of the select list. It is admitted in Para 11 of the writ petition that the Petitioners of those writ petitions had obtained Diploma in Pharmacist in 1996-1997 and the Petitioners have completed their Diploma Course in the year 1997. It is admitted in Para 11 of the writ petition that the Petitioners of those writ petitions had obtained Diploma in Pharmacist in 1996-1997 and the Petitioners have completed their Diploma Course in the year 1997. This cannot be a criterion to determine the seniority for giving appointment unless, the case of the Petitioners is similar to those, whose names found place in the select list prepared in pursuance of the earlier advertisement of 1998. In the earlier judgment also, this Court had held that waiting list remains valid for a period of one year. The Petitioners of the earlier writ petitions were given appointment because even after occurrence of the vacancies, the Petitioners who were in the select list, were not offered appointment even after occurrence of the vacancies within a period of one year. The Petitioners do not say that they were in the select list and the persons lower in merit in the select list were given appointment. Further I find that the selection had taken place in the year 1998 and the Petitioners have slept over their right. The Petitioners have come to this Court in the year 2005 after a lapse of seven years. There is no explanation for delay and laches on their part. The case of the Petitioners cannot be said to be similar to those who had earlier filed writ petition in the year 1999 to 2002. Since the Petitioners have no vested right to get appointment either being included in the select list or without being included in the select list, the writ petition is not maintainable. In State of Uttar Pradesh v. Bibhakar Dwivedi and Ors. 2004 SCC 969, it has been held by the Supreme Court after following the decision in Shankarsan Dash Vs. Union of India, AIR 1991 SC 1612 , that even those candidates whose names are included in the merit list do not have vested right to be appointed. 4. In view of the above, the writ petition is not maintainable and it is dismissed.