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2014 DIGILAW 204 (UTT)

Rakesh Negi v. State of Uttarakhand

2014-05-05

SUDHANSHU DHULIA

body2014
Judgment Sudhanshu Dhulia, J. 1. The petitioners, before this Court, have challenged the selection process which has been initiated for the selection/appointment on the post of Veterinary Pharmacist in Animal Husbandry Department of Government of Uttarakhand. In Writ Petition No.815 (SS) of 2012, petitioners have challenged the advertisement dated 19th May, 2012 and in Writ Petition No.965 (SS) of 2012, petitioners have challenged Rule 7 (1) (b), as well as Rule 14 (5) of the Uttarakhand Veterinary Pharmacists Service (Amendment) Rules 2011 (from herein after referred to as “the Amended Rules of 2011”), under which such selection is being made. In Writ Petition No. 1091 (SS) of 2013, petitioner has challenged non-consideration of his candidature for the post of Veterinary Pharmacist pursuant to advertisement dated 19th May, 2012, on the ground that petitioner is having “Degree” in Veterinary Pharmacy and not a “Diploma” as provided in the Rules, but since Degree is higher qualification than a Diploma in the same stream, his candidature must also be considered. Since these matters are closely interlinked with each other, all of them are being heard and are decided by this judgment. 2. All the petitioners have passed Intermediate examination with Biology subject and thereafter have done a “Diploma in Veterinary Pharmacy” from “Janardan Rai Nagar Rajasthan Vidyapeeth University, Udaipur (Rajasthan). 3. When the petitioners had approached this Court by way of filing the Writ Petition No. 815 (SS) of 2012, case of the petitioners was that under the Uttarakhand Veterinary Pharmacists Service Rules, 2010 (from herein after referred to as “the Rules of 2010”), following was the qualifications for appointment to the post of “Pharmacist” in Animal Husbandry Department. These are: Intermediate with Biology and the Technical qualification was Diploma in “Pharmacy”. 4. An important fact here is that under the Rules of 2010, what was required was simply a “Diploma in Pharmacy”. In other words, the Rules of 2010 did not distinguish between one having a Diploma in “Allopathy”, “Homeopathic” or “Ayurvedic”, or any other pathy for that matter. All that was required was a “Diploma in Pharmacy”. However, when advertisement was issued by the respondents inviting applications from the eligible candidates, the qualification which was prescribed was not a “Diploma in Pharmacy” but it was a “Diploma in Allopathic Pharmacy”. This caused the filing of Writ Petition No. 815 (SS) of 2012. All that was required was a “Diploma in Pharmacy”. However, when advertisement was issued by the respondents inviting applications from the eligible candidates, the qualification which was prescribed was not a “Diploma in Pharmacy” but it was a “Diploma in Allopathic Pharmacy”. This caused the filing of Writ Petition No. 815 (SS) of 2012. As per the advertisement the Diploma required was only in “Allopathy”, thereafter, candidates such as the petitioners (who have done their Diploma in Veterinary Pharmacy), were ineligible from applying for such posts. This Court in Writ Petition No. 815 (SS) of 2012, an interim order was granted to the petitioners on 26.06.2012 which is still operating, and by which selection and the subsequent appointments have all been stayed. 5. In its Counter affidavit, the State Government has rebutted the averments of the petitioners and said that the amendment in the Rules of 2010 was made in the year 2011, by which the technical qualification of “Diploma in Pharmacy” was amended to “Diploma in (Allopathy) Pharmacy”. Therefore, the case of the respondents before this Court in Writ Petition No. 815 (SS) of 2012 is that the petitioners have not come before this Court with clean hands as they have challenged the advertisement on the ground of violation of Rules of 2010, which infact stood amended in 2011 (before filing of the petition) and by the said amendment earlier qualification of Diploma in “Pharmacy” was changed to diploma in “Allopathy Pharmacy”. 6. Meanwhile, petitioners have also challenged the amended Rules in Writ Petition No. 965 (SS) of 2012. Since the issue involved in both the writ petition is interlinked with each other, hence both these writ petitions are being heard and decided together. 7. What goes to the root of the matter is the Amended Rules of 2011. It is necessary to deal with this aspect, which has been raised in Writ Petition No. 965 (SS) of 2012, where the vires of the Rules itself has been challenged. 8. There are two principal grounds for challenging the Amended Rules of 2011. The first is that under the Amended Rules of 2011, for selection of Veterinary Pharmacists the technical qualification must be “Diploma in Veterinary Pharmacy, as a Diploma in Allopathy Pharmacy has nothing to do with the veterinary department. The Rules which have been amended are not proper. 8. There are two principal grounds for challenging the Amended Rules of 2011. The first is that under the Amended Rules of 2011, for selection of Veterinary Pharmacists the technical qualification must be “Diploma in Veterinary Pharmacy, as a Diploma in Allopathy Pharmacy has nothing to do with the veterinary department. The Rules which have been amended are not proper. The change made as “Diploma in (Allopathy) Pharmacy” is violative of Article 14 of the Constitution of India. The contention of the petitioners is that even if respondents came to a conclusion for any reason whatsoever a person having a Diploma in “Allopathy Pharmacy” is eligible for the post then too a person who is having a Diploma in “Veterinary Pharmacy” cannot be made ineligible as the posts are for “Veterinary Pharmacists” only, in the department of “animal husbandry”! 9. The Second ground of contention is that under the Amended Rules of 2011, the Allopathic Pharmacists have to be given a year-wise preference. Rule 14(5) of the Amended Rules of 2011 says that selection has to be done in a manner where the Diploma holders of previous years will be given appointment first and only thereafter the candidates who have obtained diploma (in allopathy pharmacy), in later years will be considered, irrespective of their merit. Meaning thereby, that the respondents will exhaust all the candidates who have done Diploma in (Allopathy) Pharmacy, in let us say year 2009-10, irrespective of their merit in the examination, and only thereafter will they consider candidates having done a Diploma in (Allopathy) Pharmacy in 2010-11, and so on. In other words irrespective of the merit of a candidate who obtained Diploma in a later year, a person who has obtained a “Diploma in (Allopathy) Pharmacy in earlier year, though less meritorious, will be given preference. It is this Rule as well, which has been challenged as being violative of Article 14 of the Constitution of India. 10. In other words irrespective of the merit of a candidate who obtained Diploma in a later year, a person who has obtained a “Diploma in (Allopathy) Pharmacy in earlier year, though less meritorious, will be given preference. It is this Rule as well, which has been challenged as being violative of Article 14 of the Constitution of India. 10. The first objection raised by the State to these writ petitions is regarding the maintainability of the writ petitions itself as the preliminary objection of the State before this Court (already referred above), is that the petitioners have not come before this Court with the clean hands as they had filed Writ Petition No. 815 (SS) of 2012, challenging the advertisement, while not placing before this Court the entire facts as well as the fact that the Rules of 2010 have already stood amended in 2011 before issuance of the Advertisement in question. Moreover, in the second writ petition i.e. Writ Petition No.965 (SS) of 2012, although the petitioners are the same and so is their counsel, yet in writ petition No.965 (SS) of 2012, there is no mention of earlier writ petition no. 815 (SS) of 2012. Therefore, the contention of the State counsel would be that the petitioners not coming before this court with the clean hands, and a remedy in a writ jurisdiction being an equitable remedy, this Court should not grant any relief to the petitioners. 11. In his rebuttal, to the preliminary objections raised by Mr. Subhash Upadhyay, learned Chief Standing Counsel, the counsel for the petitioners Mr. K.K. Tiwari, states that at the time of filing the first writ petition [Writ Petition No. 815 (SS) of 2012], he was not having knowledge that the Rules of 2010 have already been amended in the year 2011 and, therefore, he did not challenge the amended Rules in the first writ petition, which he promptly did as-soon-as he became aware of the amendment by filing second writ petition [Writ Petition No.965 (SS) of 2012]. In his reply to the fact that in the second writ petition he has not disclosed the filing of the first writ petition, counsel simply states that it is his fault as a counsel, it has been an oversight and he assures the Court that he shall be careful in future. In his reply to the fact that in the second writ petition he has not disclosed the filing of the first writ petition, counsel simply states that it is his fault as a counsel, it has been an oversight and he assures the Court that he shall be careful in future. Nothing further needs to be stated on the above submissions of the learned counsel for the petitioners. Moreover this is too important a matter to be dismissed on the above objections of the learned Chief Standing Counsel. 12. On merits, the State as well as the private respondents i.e. those who have done their “Diploma in (Allopathy) Pharmacy” and were the only eligible candidates as per the Rules, contend that earlier for the post of Veterinary Pharmacists there was no specific technical qualification in the Animal Husbandry Department. Candidates having Intermediate with Biology as a subject, were qualified and after selection they were given an in-house training for two years. This was the practice which was being followed in the Animal Husbandry Department in the erstwhile State of U.P. and had continued to be followed in the State of Uttarakhand as well after its creation on 09.11.2000. 13. For the first time, Rules were framed in the year 2010, regarding Pharmacists of Animal Husbandry department which was known as “Uttarakhand Veterinary Pharmacist Service Rules, 2010, where a technical qualification of “a diploma in pharmacy” was prescribed for appointment to the post of Pharmacist, which was in addition to the academic qualifications. According to the Respondent-State the problem which came before the State with this qualification was that since in the Rules of 2010 the branch of “Pharmacy” was not specified, even persons having Diploma in Homeopathy or Ayurvedic claimed to be eligible as a “Pharmacist” in Animal Husbandry Department and therefore in order to rule-out such candidates or to debar such candidates a specific technical qualification of Diploma in (Allopathy) Pharmacy was given in the Rules after making amendment in the Rules of 2010 and such a Diploma should also be from a recognized Institution. 14. Another contention of the Respondent-State before this Court is that the Diploma which the petitioners have done i.e. the “Diploma in Veterinary Pharmacy” is a Diploma which is not from the State of Uttarakhand. Infact, there is no Institute in Uttarakhand which grants such a Diploma. 14. Another contention of the Respondent-State before this Court is that the Diploma which the petitioners have done i.e. the “Diploma in Veterinary Pharmacy” is a Diploma which is not from the State of Uttarakhand. Infact, there is no Institute in Uttarakhand which grants such a Diploma. The petitioners have done a Diploma in Veterinary Pharmacy from a University in Rajasthan which is not recognized or regulated by any regulatory body. Moreover, this diploma is not a regular diploma, but it has been done by “distance mode”. 15. Earlier the petitioners had not impleaded the University from where they had obtained their Diploma. During the pendency of the writ petition, the University was impleaded as a respondent, and it has also filed its counter affidavit and is here represented by Mr. Ravi Babulkar, Advocate. In its counter affidavit it has been said that the University i.e. “Janardan Rai Nagar Rajasthan Vidyapeeth University”, is a “Deemed University” under Section 3 of the University Grants Commission Act, 1956. The “Diploma” given to the petitioners was under a distance mode, which is recognized by the Indira Gandhi National Open University i.e. IGNOU. Under a distance mode, it is not the case where the petitioners have simply done their Diploma Course by way of correspondence, but it is a two years “Diploma” in Veterinary Pharmacy where the petitioners had to appear in a Study Center at Delhi where they had to qualify a practical as well theoretical examination, after being evaluated by experts, and only after this evaluation is the diploma given to them. 16. As far as the validity of the diploma of the petitioners is concerned, since the “Diploma” which the petitioners have is from a recognized University, though, from the distance mode, its validity cannot be challenged particularly in view of the fact that there is no prohibition to a diploma obtained by “distance mode” under the Rules of 2011. Moreover, this Diploma cannot be ignored merely on the basis of the fact that there is no regulatory body to control or recognize such a “Diploma”. Therefore, although the amendment in the Rules of 2010 was done with the purpose to differentiate between the candidates having done their Diploma in “Ayurvedic Pharmacy” or in “Homeopathic Pharmacy” which has no apparent connection with the Animal Husbandry. Therefore, although the amendment in the Rules of 2010 was done with the purpose to differentiate between the candidates having done their Diploma in “Ayurvedic Pharmacy” or in “Homeopathic Pharmacy” which has no apparent connection with the Animal Husbandry. However, to debar a person having valid Diploma in “Veterinary Pharmacy” is clearly violative of Article 14 of the Constitution of India. This Court finds that the petitioner having a “Diploma in Veterinary Pharmacy” from the recognized University will be deemed to be qualified under the Rules and the Diploma in “Veterinary Pharmacy” shall be read to be a valid qualification under Rule 7 (i) (g) of the Rules. 17. The second grievance of the petitioners is regarding the preference to diploma holders of earlier years. On this, much emphasis has been raised by the respondents. Firstly, it has specifically come in the Amended Rules of 2011 that the Diploma holders of earlier years shall be considered first and only after this list is exhausted that the diploma holders of later years shall be considered. 18. On this point, reliance has been placed on a judgment of Hon’ble Allahabad High Court. Before the Allahabad High Court. A number of writ petitions were filed before the Allahabad High Court challenging the selection being made for the post of Pharmacists in the Government Hospitals in State of U.P. under the U.P. Pharmacists Service Rules, 1980 where the Government had advertised the vacancies in which the selection was not to be made yearwise but purely on the basis of the merits irrespective of the year of diploma. The Pharmacists having diploma of earlier years had challenged the selection process on the ground of being violative of Rules of 1980 wherein the learned Single Judge had held that the selection if being made in accordance with the merits is not violative of Rules of 1980 as alleged. The Rules of 1980 only prescribe yearwise vacancies to be notified and there is no specific condition that first the earlier diploma holders should be adjusted only thereafter the later year’s diploma holders should be considered. This order was challenged in Special Appeal by such candidates who were having diploma from earlier years. The Rules of 1980 only prescribe yearwise vacancies to be notified and there is no specific condition that first the earlier diploma holders should be adjusted only thereafter the later year’s diploma holders should be considered. This order was challenged in Special Appeal by such candidates who were having diploma from earlier years. Their case before the Division Bench was that there has been an established practice in State of U.P. where in the Government Hospitals, diploma holders of earlier years were being considered first on the posts of pharmacist and when the list of the diploma holders of earlier years were exhausted, then only the diploma holders of later years were considered. Infact their case was that earlier when they were entitled to be selected and appointed on the basis of their merit alone on the vacancies advertised they were denied appointment by the State Government on the ground that irrespective of their merits being higher to some of the diploma holders, yet since they had obtained their diploma prior in time they would be considered first. Now when the petitioners are to be appointed on the same principle, they are being denied appointment and along with them the persons who have obtained diploma later in time are also being considered and all are being considered at par. This was an aspect which was not considered by the learned Single Judge and consequently the Division Bench of the Allahabad High Court held that pre-existing practice must be upheld, an order which was upheld by the Hon’ble Apex Court where the reasoning adopted by the Division Bench was held to the correct. The two judgments, referred above are (a) Sunil Kumr Rai and others Vs. State of U.P. & others, reported in [2009 (3) ESC 2053 (All) (LB)] and (b) Prem Chandra and others Vs. State of U.P. & others, Special Appeal No.377 of 2008. It is the judgment which are being relied upon by the respondent-State authorities as well as the other private respondents. 19. State of U.P. & others, reported in [2009 (3) ESC 2053 (All) (LB)] and (b) Prem Chandra and others Vs. State of U.P. & others, Special Appeal No.377 of 2008. It is the judgment which are being relied upon by the respondent-State authorities as well as the other private respondents. 19. This logic, however, cannot apply here in the present petitions for the simple reason that we do not have a case where appointments are being made for “Pharmacist” in Government Hospitals in accordance with the Rules of 1980, instead we have a selection and appointment for the post of “Veterinary Pharmacists” in the department of animal husbandry, for which the admitted position is that there were no Rules earlier and Rules have been framed only in the year 2010. Therefore, there is no question of there being an “accepted or long followed policy or practice”, in the present case. Infact, it is not the case of the respondents, including the private respondents, that they were earlier given a promise by the State Government that the diploma holders of earlier years shall be considered first and now the State Government is going back on its promise. Such was the case only in the State of U.P., that too in another department. Therefore, the decision of the Division Bench of Allahabad High Court as well as of the Hon’ble Apex Court is based on the entirely different facts and different Rules which will not be applicable in the present case. 20. Be that as it may, in the amended Rules of 2011, Rule 14 (5) has been amended. As per the earlier Rule 14 (5), the Section Committee had to prepare yearwise vacancies and thereafter appointment was to be made in accordance with the marks obtained by diploma holders in the examination. This provision, after amendment, has been made specific and elaborated and it has been stated that after preparing such list, first the list of such candidates will be exhausted and selection will be made who have obtained their diploma in previous years and only after that year will the diploma holders of the next years be considered. This specific provision in the Rules [Rule 14 (5)] is clearly discriminatory in nature and violative of Article 14 of the Constitution of India. This specific provision in the Rules [Rule 14 (5)] is clearly discriminatory in nature and violative of Article 14 of the Constitution of India. It is discriminatory as it distinguishes one diploma holder with another diploma holder of the previous years, and violative of Article 14 of the Constitution, inasmuch as, it does not give credit to merit but to a qualification obtained in previous years which has absolutely no rational with the object sought to be achieved by the Government, in making such appointments. Moreover, unlike State of U.P., we do not have a case where there is a longstanding practice, where earlier diploma holders were considered first and only thereafter the diploma holders of later years were considered. Lastly, when this Court has already held that diploma holders in Veterinary Pharmacy are eligible for consideration, along with diploma holders in Allopathic Pharmacy, there is absolutely no rational now for making a distinction between previous years diploma and later years diploma. Consequently, the provision contained in Rule 14 (5) of the Rules is held to be violative of Article 14 of the Constitution. Consequently, the provisions contained in Rule 14 (5) of the Uttarakhand Veterinary Pharmacists Service (Amendment) Rules, 2011 is hereby declared as ultra vires to the Constitution of India. The respondent State shall not implement the above provision. 21. The respondents-State shall consider the Diploma in (Allopathy) Pharmacy as well as the Diploma in Veterinary (Pharmacy) as qualified for the post of Veterinary Pharmacist in Animal Husbandry Department, irrespective of years in which they have done such a Diploma provided they fulfil other conditions. It is made clear that since there is no regulatory body/Registering Body like a Veterinary Pharmacy Council in State of Uttarakhand, there is also no question of petitioners being registered with the Pharmacy Council of Uttarakhand. Having said this, registration with Pharmacy Council of Uttarakhand is not necessary at present for the petitioners. 22. Lastly, in Writ Petition No. 1091 (SS) of 2013, petitioner has challenged his non-consideration for the post of Veterinary Pharmacist advertised vide advertisement dated 19th May, 2012, on the strength of Degree obtained by the petitioner in Veterinary Pharmacy on the ground that it is invalid as in the rules only Diploma is mentioned. 23. Such a stand taken by the respondents-State here is totally uncalled for and infact devoid of logic. 23. Such a stand taken by the respondents-State here is totally uncalled for and infact devoid of logic. The Degree course as has been done by the present petitioner is more importance than the diploma, and it is in the same stream. Therefore, the degree obtained by the petitioner is also a valid qualification for the posts. 24. In view of the above observation, these writ petitions stands allowed. Respondents-State is hereby directed to consider the petitioners as eligible for the post of Veterinary Pharmacist in Animal Husbandry Department, thereafter prepare a new select list. No order as to costs.