Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1571 (GAU)

Limayanger Ao v. State of Nagaland

2018-10-31

KALYAN RAI SURANA

body2018
JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mr. Taka Masa Ao, the learned Senior Advocate, assisted by Mr. Arenlong, the learned Advocate for the petitioners in both writ petitions. Also heard Mr. K. Wotsa, the learned Senior Govt. Advocate appearing for State Respondents No. 1 and 2 in both the writ petitions and Mr. R. Iralu, the learned Senior Advocate, assisted by Mr. L. Iralu, the learned Advocate for the private respondents No. 3 to 7 in W.P.(C) No. 87(K)/2018 and private respondents No. 3 to 16 in W.P.(C) No. 88(K)/2018. 2. By W.P.(C) No. 87(K)/2018, filed under Article 226 of the Constitution of India, the petitioner has challenged the impugned (i) order No. HFW-7/A/12/2007/504 dated 09.06.2016 (Annexure-18) issued by the Commissioner & Secretary to the Govt. of Nagaland, Health & Family Welfare Department (hereinafter referred to as H & FW Department); (ii) order No. HFW-7/A/12/2007/504 dated 09.06.2016 (Annexure-19) issued by the Commissioner & Secretary to the Govt. of Nagaland, H & FW Department; (iii) order No. HFW-7/A/12/2007/504 dated 09.06.2016 (Annexure-20) issued by the Commissioner & Secretary to the Govt. of Nagaland, H & FW Department; and (iv) HFW-7/A/12/2007/118 dated 27.04.2017 (Annexure-21) issued by the Commissioner & Secretary to the Govt. of Nagaland, H & FW Department. By challenging the said orders, the petitioner is seeking restoration of the seniority of the petitioner over the private respondents to the post of Senior Pharmacist, Head Pharmacist, Deputy Chief Pharmacist/District Pharmacy Officer, and for a direction to the authorities to consider the case of the petitioner for promotion to the post of Chief Pharmacist/Deputy Director under the Directorate of H & FW Department. Case in the writ petition: 3. As requested by the learned Senior Advocate for the petitioner and agreed to by the learned Senior Advocate for the private respondents and the learned Senior Govt. Advocate, the facts of W.P.(C) No. 87(K)/2017 is taken as a lead case. 4. It is projected that there are different grades of the post of Pharmacists, (i) Pharmacist Grade-n, (ii) Pharmacist Grade-I, iii) Senior Pharmacist, (iv) Head Pharmacist, (v) District Pharmacy Officer/Deputy Chief Pharmacist, (v) Chief Pharmacist/Deputy Director (Pharmacy). 5. The case projected in the writ petition is that the petitioner is now serving as District Pharmacy Officer, Mon, Nagaland. 4. It is projected that there are different grades of the post of Pharmacists, (i) Pharmacist Grade-n, (ii) Pharmacist Grade-I, iii) Senior Pharmacist, (iv) Head Pharmacist, (v) District Pharmacy Officer/Deputy Chief Pharmacist, (v) Chief Pharmacist/Deputy Director (Pharmacy). 5. The case projected in the writ petition is that the petitioner is now serving as District Pharmacy Officer, Mon, Nagaland. At the time of his appointment as a Pharmacist by order dated 13.03.2000, the petitioner was then a Diploma holder in Pharmacy and while in service, having availed due permission from the authorities, he had obtained the Degree of Bachelor of Pharmacy on 02.12.2006, and was placed in the First Class. 6. It is projected that the private respondents who are also holders of Degree of Bachelor of Pharmacy were initially appointed as Pharmacist by various orders passed between 28.07.2003 to 20.09.2006, as appears from the Tentative Seniority List of Pharmacist, notified by order dated 19.04.2012. It is projected that three classes of Pharmacists had made their entry in service, being (i) Certificate holders, (ii) Diploma holders, and (iii) Degree holders and in the absence of any Service Rules, the seniority of the Pharmacists were reckoned from the date of the initial appointment, irrespective of the educational qualification of the Pharmacists. 7. It is projected that there was no Service Rules for the Pharmacists in the State. Hence, the State Govt. by notification dated 13.09.2010, had constituted a Cadre Review Committee to restructure the pharmacy cadre. Thereafter, by an order dated 03.09.2012, a Board was constituted for Cadre Review. The said Board by a Minutes of Meeting held on 04.09.2012, had submitted a proposal showing details of requirement of Pharmacists covering various programmes in the Department. Accordingly, the Principal Director, Health & Family Welfare Department, by a letter dated 09.11.2012, submitted the observations of the Board to the Govt. on Cadre Review and Draft Service Rules. Thereafter, another Cadre Review meeting was held on 05.04.2013 to finalize the Pharmacist Cadre Review and the Service Rules Draft, where in it was proposed that out of 126 posts of Pharmacist Grade-I, 50% posts would be filled up by promotion from amongst Certificate holders, 25% posts would be filled up by promotion from amongst senior-most Diploma Holders and remaining 25% posts would be filled up on the basis of seniority list of Degree and Post Graduate Degree holders. Thereafter, the resulting vacancies of Pharmacist Grade-1 would be filled up as follows - 50% by way of direct recruitment from amongst Diploma Holder, 25% from amongst degree holders and 25% by way of promotion from Pharmacist Grade-II. Furthermore, the posts of Senior Pharmacist, Head Pharmacist, District Pharmacy Officer/Deputy Chief Pharmacist and Chief Pharmacist may be filled up with a gap of 1 year beginning from 2014. It was envisaged that once the cycle of filling up the post is completed, the normal procedure of filling up of the posts would be carried out as per the Pharmacist Service Rules for all corresponding posts, subject to having requisite qualification. It is projected that in terms of above, the Certificate holders in the cadre would be phased out with no further recruitment of persons having only a Certificate in Pharmacy. Accordingly, the State Govt. by notification dated 13.11.2015, had upgraded the post of Pharmacist Grade-I and Grade-II, Senior Pharmacist, Head Pharmacist, District Pharmacy Officer/Deputy Chief Pharmacist, Chief Pharmacist/Deputy Director (Pharmacy) by providing that the higher posts would be filled up with a gap of 1 (one) year beginning from 2014 by following the policy of promotion of 80:10:10; until the certificate holders are phased out and it was also provided that the Department shall add a proviso to the clause in Schedule-II, item 4 that this ratio shall in no way deprive the relative seniority of the Diploma/Degree holders. It was further provided that the promotions of the incumbents shall be in line with existing instructions in consultation with the P & AR Department. 8. On 28.07.2015, the Principal Director, Directorate of H & FW Department had submitted the said Service Rules draft to the Govt. for examination. The proposed Schedule-II contained, amongst others, a Note No. (iii) to the effect that: "In service pharmacists getting higher qualification and who wishes to opt the next higher qualification category, his/her seniority in the opted category shall be counted from the date of passing the qualifying examination." By a notification dated 10.11.2015 (bearing signature dated 28.10.2015), the Tentative Seniority List of Pharmacists under the H & FW Department was published wherein the name of the petitioner was at Sl. No. 316 and the names of the private respondents were in Sl. No. 325 onwards. No. 316 and the names of the private respondents were in Sl. No. 325 onwards. Thereafter, vide letter dated 22.02.2016, the Under Secretary, H & FW Department had directed the Principal Director, H & FW Department to submit APARs for period 2010-2015 for up-gradation of Pharmacists who are due for promotion, wherein the name of the petitioner was at Sl. No. 24, however, the names of the private respondents were placed before him. It is projected that by a Tentative Seniority List was issued on 22.02.2016, which was not issued, published, notified or circulated by the competent authority, the name of the petitioner was placed at Sl. No. 348 and the names of the private respondents were placed before him. Hence, the petitioner had submitted his representation. However, the Nagaland Pharmacist Association had issued a letter to the petitioner to withdraw his representation. The authorities then issued a Final Seniority List on 11.04.2016, where the name of the petitioner was at Sl. No. 314 and the names of the private respondents were placed from Sl. No. 323 onwards. The Commissioner & Secretary, H & FW Department by the impugned order dated 09.06.2016 upgraded the petitioner and the private respondents to the post of Senior Pharmacist w.e.f. 01.01.2014, however, the name of the petitioner was placed a the bottom of the list, below that of the private respondents. By another order dated 09.06.2016, the Commissioner & Secretary, H & FW Department had further upgraded the petitioner and the private respondents to the post of Head Pharmacist w.e.f. 01.01.2015, however, the name of the petitioner was placed at the bottom of the list, below that of the private respondents. By another order dated 9.6.2016, the Commissioner & Secretary, H & FW Department had further upgraded the petitioner and the private respondents to the post of Deputy Chief Pharmacist/District Pharmacy Officer w.e.f. 01.01.2016, and the name of the petitioner was again placed at the bottom of the list, below that of the private respondents. By another impugned order dated 27.04.2017, the Commissioner & Secretary, H & FW Department had given officiating promotion to the respondent No. 3 to the post of Chief Pharmacist/Deputy Director with immediate effect and, as such, the petitioner was superseded. The petitioner had submitted his representations dated 4.5.17 and 31.5.17 and as the authorities had not disposed of the said representation, the petitioner has approached this Court. 9. The petitioner had submitted his representations dated 4.5.17 and 31.5.17 and as the authorities had not disposed of the said representation, the petitioner has approached this Court. 9. It may be noted herein that as against the affidavit-in-opposition filed by the State Respondents as well as by the private respondents, the petitioner has filed his affidavit-in-reply. 10. The petitioner in W.P.(C) No. 88(K)/2017, is now serving as Senior Pharmacist, S.M.O., Tseminyu, CHC, Kohima. He entered into service as a Diploma holder in Pharmacy and initially appointed as Pharmacist Grade-II by order dated 15.03.2005. He was granted study leave and obtained Degree in Pharmacy in the year 2010. In the writ petition, he is praying for up-gradation of his seniority position in the grade of Senior Pharmacist, Head Pharmacist, District Pharmacy Officer/Deputy Chief Pharmacist, above that of the private respondents No. 3 to 6. The rest of the facts and issues are in common to the facts and issue raised in W.P.(C) No. 87(K)/2017. 11. In W.P.(C) No. 88(K)/2017, the petitioner has prayed for quashing and setting aside the impugned (i) order No. HFW-7/A/12/2007/504 dated 09.06.2016 (Annexure-27) issued by the Commissioner & Secretary to the Govt. of Nagaland, H & FW Department); (ii) order No. HFW-7/A/12/2007/504 dated 09.06.2016 (Annexure-28) issued by the Commissioner & Secretary to the Govt. of Nagaland, H & FW Department; (iii) order No. HFW-7/A/12/2007/504 dated 09.06.2016 (Annexure-29) issued by the Commissioner & Secretary to the Govt. of Nagaland, H & FW Department; (iv) HFW-7/A/12/2007/118 dated 27.04.2017 (Annexure-30) issued by the Commissioner & Secretary to the Govt. of Nagaland, H & FW Department; (v) order No. HFW-7/A/12/2007/504 dated 09.06.2016 (Annexure-31) issued by the Commissioner & Secretary to the Govt. of Nagaland, H & FW Department; (vi) order No. HFW-7/A/12/2007/504 dated 9.6.2016 (Annexure-32) issued by the Commissioner & Secretary to the Govt. of Nagaland, H & FW Department; (vii) order No. HFW-7/A/12/2007/504 dated 9.6.2016 (Annexure-33) issued by the Commissioner & Secretary to the Govt. of Nagaland, H & FW Department. of Nagaland, H & FW Department; (vi) order No. HFW-7/A/12/2007/504 dated 9.6.2016 (Annexure-32) issued by the Commissioner & Secretary to the Govt. of Nagaland, H & FW Department; (vii) order No. HFW-7/A/12/2007/504 dated 9.6.2016 (Annexure-33) issued by the Commissioner & Secretary to the Govt. of Nagaland, H & FW Department. By challenging the said orders, the petitioner is seeking restoration of the seniority of the petitioner over the private respondents to the post of Senior Pharmacist, Head Pharmacist, Deputy Chief Pharmacist/District Pharmacy Officer w.e.f. 01.01.2014, and for a direction to the authorities to consider the case of the petitioner for promotion to the post of Pharmacist grade-I under the Directorate of H & FW Department and to place him above his juniors/private respondents. Stand of the State Respondents No. 1 and 2 in their Affidavit-in-opposition: 12. The State Respondents took a stand that the private respondents were already in service on the dates when the petitioners in both writ petitions had acquired their respective Degree. It was projected that the tentative seniority list is a common seniority list maintained by the Department on the basis of entry into service without classifying the classes of Certificate holder, Diploma holder and Degree holders. The history of Cadre Review culminating to drafting and approval of the draft of the Service Rules has been elaborated. It was projected that from the date of obtaining the degree, the seniority of the petitioners in both writ petition would be counted, whereas by that time, the private respondents had already entered into service as Degree holders, as such, the petitioners were rightly placed below the private respondents as they were junior to the private respondents. It is projected that although a common seniority list was maintained, the petitioners being juniors to the private respondents in the category of degree holders, cannot claim seniority over the private respondents, as such, the contention of the petitioners are totally misconceived. Stand of the private respondents in their affidavit-in-opposition: 13. The stand of the private respondents is that the writ petition was not maintainable for non-joinder of necessary parties. It is projected that from the letter dated 9.4.2010, the Principal Director of H & FW Department had apprised the Commissioner and Secretary of the said Department about the need of streamlining of Pharmacist Services and the long pending demand of the Nagaland Pharmacist Association since 1980's for a Service Rules. It is projected that from the letter dated 9.4.2010, the Principal Director of H & FW Department had apprised the Commissioner and Secretary of the said Department about the need of streamlining of Pharmacist Services and the long pending demand of the Nagaland Pharmacist Association since 1980's for a Service Rules. The draft Rules was made in the year 2009 and then the same was submitted before the competent authority Thereafter, the Cadre Review Committee had held its meetings from time to time. It is projected that as per the Final Seniority List dated 11.04.2016, there were 295 Certificate holders, 91 Diploma holders and 92 Degree/Masters Degree holders including the petitioners in the present two writ petitions. It is also projected that based on the said classification that seniority as per educational qualification has been recognized, and formed the basis of the Govt. to recommend and approve the up-gradation of various posts of Pharmacists. It is also projected that without the said classification, the restructuring of the Pharmacist services would not have its intended effect. 14. It was projected that prior to the restructuring of the Pharmacist services, there used to be "one-line seniority" for all Pharmacist without any classification, for which there was no scope for any promotional avenues. Hence, the Pharmacist service was restructured and streamlined. There was a common seniority list on the basis of date of entry into service, which culminated into a final seniority list as on 22.02.2016, vide letter dated 11.04.2016. It is projected that as per the Final Seniority List, the name of the petitioner appears at Sl. No. 314, which is as per initial entry into service as a Diploma holder, but on obtaining Degree in Pharmacy, the petitioner was born into the separate and distinct class on 02.12.2006. Therefore, the petitioner was required to be placed below the names of the private respondents, who had acquired Degree in Pharmacy prior to the date of obtaining of such degree by the petitioner. Hence, it is projected that the writ petition is on wrong assumption that (i) there is no classification, or (ii) there is classification but the petitioner wishes to take advantage of the best of both his service in Diploma and Degree class, which is unfounded and legally impermissible and therefore, a wrong conclusion is drawn that the petitioner is senior to the private respondent. Hence, the stand of the private respondents is that they are senior to the petitioners in both writ petitions. 15. It is projected that if the classification is disturbed by allowing the writ petition, it would unsettle all the settled things, thereby causing injustice and inequity to the Pharmacist services in place of justice and equity. It is further projected that as per the final seniority list dated 11.04.2016, the petitioner is at SI. No. 22 in terms of seniority in Diploma class and at SI. No. 6 in terms of Degree class w.e.f. 02.02.2006 (date of acquiring degree) and similarly, the petitioner in W.P.(C) No. 88(K)/2017 is also below that of the private respondents, as such, the petitioners in both the writ petitions have no scope for their progression in seniority over the private respondents. It is also projected that based on the date of acquiring the educational qualification of Degree, the petitioner was rightly placed below the private respondents. However, if the petitioner seeks to retain his seniority, then it would be as a Diploma holder and the petitioner would still be below the private respondents. 16. It is projected that as per the requirement of the Pharmacy Act, 1948 and Pharmacy Practice Regulation, 2015, to be employed as a Pharmacist or to practice the profession, or to continue his/her profession, one has to be registered in the State Pharmacy Council as a registered Pharmacist and keep his registration up-to-date. However, the petitioner in W.P.(C) No. 87(K)/2017 is yet to register in the State Pharmacy Council as registered Pharmacist, which is mandatory, as such, the petitioner is not eligible to practice Pharmacy. Similarly, the petitioner in W.P.(C) No. 88(K)/2017, the registration of the petitioner had lapsed by non-renewal. 17. Hence, it was prayed that the writ petition be dismissed. Submissions made by the learned Senior Advocate for the petitioner. 18. The learned Senior Advocate for the petitioner has made his elaborate submissions in support of the case of the petitioner. The gist of his submissions are as follows:- a. At the relevant time, persons holding (i) Certificate in Pharmacy, (ii) Diploma in Pharmacy, and (iii) Degree in Pharmacy were all entitled to get an entry in service as a Pharmacist under the H & FW Department. There was no separate cadre for different educational qualification. The gist of his submissions are as follows:- a. At the relevant time, persons holding (i) Certificate in Pharmacy, (ii) Diploma in Pharmacy, and (iii) Degree in Pharmacy were all entitled to get an entry in service as a Pharmacist under the H & FW Department. There was no separate cadre for different educational qualification. b. Therefore, as per the Tentative Seniority List published and circulated from time to time, the date of entry into service was the only criteria for determining seniority. c. Hence, from the date of entry into service, notwithstanding that the petitioner's entry in service was as a Diploma holder, his seniority over the private respondents was maintained till the last Tentative Seniority List was published and circulated on 11.04.2016, the name of the petitioner was at Sl. No. 314 and above the names of the private respondents, which were from SI. No. 323 onwards. d. The proposed Pharmacist Service Rules was in the draft form till the time the writ petition was filed and, as such, the note (f) appended to Schedule-II of the said draft providing for "in-service pharmacists getting higher qualification and who wishes to opt the next higher qualification category, his/her seniority in the opted category shall be counted from the date of passing the qualifying examination." could not be applied retrospectively. e. In the said context, it is further submitted that if the authorities intended to apply the draft Rules, they would have to apply the draft Service Rules in toto, and they cannot pick and choose a particular provision alone. By referring to the Annexure-B appended to the Affidavit-in-reply filed by the petitioner against the Affidavit-in-opposition filed by the State Respondents No. 1 and 2, it is submitted that the Govt. had turned down recommendation for promotions given on the basis of draft Service Rules, which also shows that as on 15.03.2018, the draft Service Rules were not cleared by the Nagaland Public Service Commission and, as such, it was yet to be cleared by the Cabinet and, as such, it is submitted that without the Service Rules being notified, the authorities could not implement only a particular provision of the draft Rules without implementing the same in toto. f. By referring to the policy decision vide notification dated 13.11.2015, it is submitted that the policy of promotion of 80:10:10: for certificate holders, diploma holders and degree holders respectively was made applicable until the certificate holders are phased out and it was also provided that the Department shall add a proviso to the clause in Schedule-II, item 4 that this ratio shall in no way deprive the relative seniority of the Diploma/Degree holders. Hence, it is submitted that the said notification precluded the authorities from depriving the petitioner of his seniority. By referring to the Annexure-C appended to the Affidavit-in-opposition filed by the State Respondents No. 1 and 2, it is submitted that the P & AR Department had recommended that the said ratio shall in no way deprive the relative seniority of the diploma/degree holders. g. It is submitted that all promotions, except for the petitioner, was made on the basis of seniority list and the petitioner was deliberately discriminated with by the authorities. h. It is submitted that the persons whose names appeared in SI. No. 1 to 6 in the impugned orders dated 09.06.2016, were given seniority on the basis of date of entry in service and not from the date of obtaining Diploma/Degree. It is submitted that the said 6 (six) persons had initially joined service as Diploma holders and their names were at SI. No. 53, 56, 87, 160, 195, 226 and 227 respectively, but although the said persons had upgraded their qualification to Diploma holder, their seniority list was maintained as per the date of joining and not from the date of acquiring higher qualification. Hence, only the petitioner has been discriminated against. i. By referring to Annexure-B appended to the Affidavit-in-reply filed by the petitioner against the Affidavit-in-Opposition filed by the State Respondents No. 1 and 2, it is submitted that Commissioner & Secretary of H & FW Department had clarified that the issue of obtaining higher qualification by members while in service has been addressed under Note: iii of Schedule-II [vide Rule 6(b)] of the Draft Nagaland Pharmacist Service Rules. In this context, it is submitted that the petitioners had joined service in the year 2000 and obtained his Degree in Pharmacy in the year 2006, much prior to the mooting of the Service Rules, therefore, the said provision must operate retrospectively on and from the date when the said Rules are notified. j. It is submitted that the private respondents had taken a stand that the writ petition was bad for non-joinder of necessary parties and in this connection, it is submitted that the petitioner is aggrieved only by the promotions made in terms of the orders impugned herein, by which he was superseded by the private respondents and as the name of the petitioner appeared senior to the private respondents in the Tentative Seniority lists published from time to time, he is not aggrieved by any other persons whose names appear in the Tentative Seniority Lists. k. It is submitted that the private respondents had taken a stand that by giving his consent to the draft of the Nagaland Pharmacist Service Rules, the petitioner is stopped from challenging its provisions and in this context, it is submitted that by his consent to the draft, the petitioner had not forgone is right to challenge his down-grading of his seniority position. l. It is submitted that in W.P.(C) No. 88 (K)/2017, the petitioner is now working as Senior Pharmacist and he is praying for up-gradation of his seniority position in the grade of Senior Pharmacist, Head Pharmacist, District Pharmacy Officer/Deputy Chief Pharmacist. The rest of the facts and issues are in common to the facts and issue raised in W.P.(C) No. 87(K)/2017. Hence, it is submitted that the petitioner is entitled to reliefs as prayed for. m. In support of his submissions, the learned Senior Advocate for the petitioner has placed reliance on the following cases: i. Maharashtra Forest Guards and Foresters Union Vs. State of Maharashtra & Ors., reported in (2018) 1 SCC 149 ii. High Court of Delhi & Anr. Vs. A.K. Mahajan & Ors., reported in (2009) 12 SCC 62 iii. High Court of Gujarat & Anr. Vs. Gujarat Kishan Mazdoor Panchayat & Ors., reported in (2003) 4 SCC 712; iv. Mithilesh Kumari & Anr. Vs. Prem Behari Khare, reported in (1989) 2 SCC 95 , v. Rukmini Bora & Anr. Vs. State of Assam & Ors., reported in 2009 (3) GLT 834 (FB). High Court of Gujarat & Anr. Vs. Gujarat Kishan Mazdoor Panchayat & Ors., reported in (2003) 4 SCC 712; iv. Mithilesh Kumari & Anr. Vs. Prem Behari Khare, reported in (1989) 2 SCC 95 , v. Rukmini Bora & Anr. Vs. State of Assam & Ors., reported in 2009 (3) GLT 834 (FB). n. By referring to the case of Mithilesh Kumari & Anr. (supra), it is projected that a retrospective effect to the statute is not to be given effect to so as to impair an existing right and obligation. Similarly, by relying on the case of Maharashtra Forest Guards and Foresters Union (supra), it is submitted that the Hon'ble Supreme Court after discussing various case laws on the point had held that the Recruitment Rules to the extent that it imposes the requirement of being a graduate is declared unconstitutional. It was submitted that in the case of Rukmini Bora (supra), the Full Bench of this Court had held that had Rules can be amended, but the existing or conferred rights, which had already been accrued, cannot be taken away. o. The learned Senior Advocate for the petitioners had made one further submission was that the draft service Rules having not been notified could not be acted upon. It is submitted that the contents of the Nagaland Pharmacist Service Rules, 2018 is not found to be the reason on record for placing the name of the private respondents above that of the petitioners in the two writ petitions and moreover, there appears to be no executive fiat for the same. In support of his submissions, the learned Senior Advocate for the petitioners has referred to the case of Gujarat Kishan Mazdoor Panchayat & Ors. (supra), in support of his submissions that Draft Rules can be acted upon, provided that there is clear intention on part of the Government to implement the said draft Rules in near future. p. By referring to the case of A.K. Mahajan & Ors., it has been submitted that the Hon'ble Supreme Court had held that where amended Rules affect the benefits already existing, then such Rules would not be permissible to the extent of retrospectivity. p. By referring to the case of A.K. Mahajan & Ors., it has been submitted that the Hon'ble Supreme Court had held that where amended Rules affect the benefits already existing, then such Rules would not be permissible to the extent of retrospectivity. In this connection, it was submitted that previously there was no seniority list and, as such, all the entrants to the post of Pharmacist were entered into a common seniority list, irrespective of the educational qualification the Pharmacists had been holding and, as such, the petitioners having already attained their seniority position above that of the private respondents, by way of promotion order, the private respondents cannot be placed before the petitioners, which would result in loss of their seniority position. Submissions made by the learned Senior Govt. Advocate for the State Respondents No. 1 and 2: 19. Mr. K. Wotsa, the learned Senior Govt. Advocate has submitted that the need for Pharmacist Service Rules was mooted on 16.10.2009 and the Draft Service Rules was made on 13.11.2015. After the same was cleared by P & AR Department, and Cabinet, the Govt. of Nagaland has now notified the Nagaland Pharmacist Service Rules, 2018 on 08.08.2018. He has specifically relied on the statements made in paragraphs 5 to 14 of the Affidavit-in-Opposition filed by the State Respondents. It is submitted that the Rule 20 of the Rules, now notified, must be read with note (f) appended to Schedule-II of the Nagaland Pharmacist Service Rules, 2018, which reflects the intention of the Government to classify the Pharmacists in accordance with their educational qualification and, as such, there was no infirmity in keeping the name of the petitioners below to that of the private respondents. The learned Senior Govt. Advocate supported the stand of the private respondents in their affidavit-in-opposition. Submissions made by the learned Senior Advocate for the Private Respondents: 20. The gist of the submissions made by Mr. The learned Senior Govt. Advocate supported the stand of the private respondents in their affidavit-in-opposition. Submissions made by the learned Senior Advocate for the Private Respondents: 20. The gist of the submissions made by Mr. R. Iraki, the learned Senior Advocate for the private respondents are as follows:- a. It is submitted that the writ petitioner has filed the present writ petition on the basis of 3 (three) erroneous presumptions, viz., (i) the petitioners are aggrieved by post up-gradation of the private respondents on the basis of principle of classification but on the contrary, the petitioners have no grievance against the post up-gradation of the other Pharmacists which has also been done on the basis of classification based on educational qualification, and in this regard, he has referred to the various orders impugned in the two writ petitions; (ii) the principle of classification applies to other Pharmacists, but not to the private respondents; (iii) that there exists no classification. b. It is submitted that the present writ petition was bad for non-joinder of proper and necessary parties. It is submitted that by the nature of prayers made, the writ petition, if allowed, would lead to unsettle the settled position of several Pharmacists, whose name are above the petitioners. It is submitted that in the absence of those parties, who are likely to be affected, the present petitions cannot be effectually decided. c. It is submitted that prior to the policy of streamlining the Pharmacist service, the basis of promotions are not known from the materials available on record, as such, it is assumed that it was at the pleasure of the Govt. authorities. It is submitted that on 16.10.2009, when the Nagaland Pharmacist Association had adopted the resolutions for Service Rules, the petitioner was present and he was a signatory at Sl. No. 12 and accordingly, the Govt. had accepted the proposals No. II and III and, as such, the petitioner is precluded from challenging the classification on the basis of educational qualification. It is submitted that on 16.10.2009, when the Nagaland Pharmacist Association had adopted the resolutions for Service Rules, the petitioner was present and he was a signatory at Sl. No. 12 and accordingly, the Govt. had accepted the proposals No. II and III and, as such, the petitioner is precluded from challenging the classification on the basis of educational qualification. The learned Senior Advocate has placed reliance on the statements made in paragraph 2 of the Affidavit-in-Reply of the petitioner against the Affidavit-in-opposition filed by the private respondent and emphasized on the stand of the petitioner that he was not challenging classification in the present writ petition d. It is submitted that it is a well settled proposition of law that once the petitioner made a claim for promotion to the next higher grade, he must take a call as to whether he is staking his claim on the basis of Diploma or on the basis of Degree and in the present case, as the petitioner is making a claim on the basis of his Degree, which was acquired subsequent to the entry of the private respondents in service as Degree holder, the authorities have rightly kept him below that of the private respondents and, as such, the petitioner cannot lay has claim of seniority on the basis of entry in service by holding a Diploma and, as such, the petitioners in the two writ petitions have no locus stand to challenge the seniority of the private respondents. e. It is submitted that as per Clause (iv) of notification dated 13.11.2005, the Govt. had the power to relax qualifying length of service for promotion. Referring to the order dated 04.07.2016 (Annexure-P-6 of Affidavit-in-opposition filed by the private respondents), it is submitted that 10 Certificate holders were promoted, 13 Diploma holders were promoted and 13 Degree holders were promoted, which is as per the decision of the Govt. to give effect to promotions in the ratio of 80:10:10. By further referring to the orders impugned herein, it is submitted that in giving effect to the promotions, the ratio of 50:25:25 as per Govt. notification was maintained. Hence, it is submitted that if the petitioner is granted relief, the settled position would become unsettled as these documents are proof of the fact that there existed classification on the basis of educational qualification. notification was maintained. Hence, it is submitted that if the petitioner is granted relief, the settled position would become unsettled as these documents are proof of the fact that there existed classification on the basis of educational qualification. f. It is also submitted that as per the final seniority list, the petitioners are well below in the list and were not entitled to promotion as Diploma holders, as such, it is only on the strength of their having obtained Degree in Pharmacy, that the petitioners have made claim for promotion, as such, the petitioner is required to be kept below the private respondents, whose entry into service was as Degree holders, prior to the date when the petitioners had acquired their degree. g. It is submitted that whatever was done was on the basis of the draft Service Rules, and the said actions were not hit by the doctrine of retrospective application of law. In this connection, if submitted that the Govt. had clear intention to bring about the Nagaland Pharmacist Service Rules, which was done without any inordinate delay and the intention of the Govt. was to implement such Rules and, as such, action taken on the basis of draft Rules cannot be held to be illegal. Moreover, it is submitted that every Pharmacist was treated equally on the basis of his/her classification based on educational qualification acquired. h. In support of his contentions, the learned Senior Advocate for the private respondents has placed reliance on the following cases: i. Vimal Kumari Vs. State of Haryana & Ors., reported in (1998) 4 SCC 114 ii. Shamkant Narayan Deshpande Vs. Maharashtra Industrial Development Corporation & Anr., reported in (1993) Supp (2) SCC 194; iii. M.A. Khan & Ors. Vs. New Delhi Municipal Council & Ors., MANU/DE/4156/2011. i. In order to counter the submissions made by the learned Senior Advocate for the petitioners, the learned Senior Advocate for the private respondents, by relying on the case of Vimal Kumari (supra), has submitted that the Hon'ble Supreme Court had held that recourse to Draft Rules was permissible only for the interregnum to meet any emergent situation. But if the intention was not to enforce or notify the Rules at. all, recourse to Draft Rules cannot be taken. But if the intention was not to enforce or notify the Rules at. all, recourse to Draft Rules cannot be taken. By further relying on the case of Shamkant Narayan Deshpande (supra), and M.A. Khan & Ors., it is submitted that the Hon'ble Supreme Court has held that classification of Degree holder and Diploma holder for promotion was permissible. Discussions and Decision: 21. Having heard the learned Senior Advocates for the petitioner and the private respondents as well as the learned Senior Govt. Advocate, this Court has perused the materials available on record. The learned Senior Govt. Advocate has produced (i) a copy of letter No. AS/LEG-20/20187/856 dated 20.9.2018, by the Addl. Secretary, Nagaland Legislative Assembly Secretariat that the Nagaland Pharmacist Service Rules, 2018 has been laid on the Table of the House on 18.09.2018 during the Second Session of the Thirteenth Assembly, and (ii) a copy of notification No. HFW(A)/SR-7/7/2017/71 dated 08.08.2018 issued by the H & FW Department to the effect that Nagaland Pharmacist Service Rules, 2018 has been brought into effect after obtaining clearance from the P & AR Department (O & M Branch), Justice and Law Department, Nagaland Public Service Commission and duly approved by the Cabinet. 22. The issues which arise for the determination of this Court are:- a. Whether the positioning of the petitioners in both writ petitions as well as the private respondents in the impugned order on the basis of date of acquiring of the educational qualification is based on some reasonable classification, and reasonable basis, or the same is vitiated by lack of fair play and arbitrariness? b. Whether the seniority position of the petitioners in both the writ petitions, placed below that of the private respondents are sustainable on the touchstone of Article 14 and Article 16 of the Constitution of India? 23. In the quest of the answers to the above issues, it would be pertinent to revisit the facts. It is seen that the petitioner in W.P.(C) No. 87(K)/2017 had entered into service as Pharmacist on 13.03.2000 as a Diploma holder and the said petitioner had acquired his Degree in Pharmacy on 02.12.2006. Similarly, the petitioner in W.P.(C) No. 88(K)/2017 was initially appointed as Pharmacist Grade-II on 15.03.2005 and he had acquired his Degree in the year 2010. It is seen that the petitioner in W.P.(C) No. 87(K)/2017 had entered into service as Pharmacist on 13.03.2000 as a Diploma holder and the said petitioner had acquired his Degree in Pharmacy on 02.12.2006. Similarly, the petitioner in W.P.(C) No. 88(K)/2017 was initially appointed as Pharmacist Grade-II on 15.03.2005 and he had acquired his Degree in the year 2010. There is no dispute at the Bar that the private respondents had entered into service during the period from 28.07.2003 to 20.09.2006. Thus, there is also no dispute at the Bar that the petitioners in both the writ petitions had acquired their Degree in Pharmacy only after the private respondents had entered into service as Degree holder in Pharmacy. 24. There is no dispute at the Bar that at the time when the petitioners as well as the private respondents had initially entered into service, there was no Service Rules in force. Therefore, at that time, a common seniority list was maintained for all three classes of entrants, i.e. (i) Certificate holders, (ii) Diploma holders, and (iii) Degree/Post Graduate Degree holders. The issue which has crossed the mind of this Court is that if the common seniority list was envisaged from the date of entry, then why did a necessity arose for the petitioners in both the writ petitions to acquire their Degree in Pharmacy, while in service. Therefore, the natural answer to the above would be that the petitioners were aware that if they acquire a higher qualification, they would have better promotional avenues in their service career. It is well settled in service jurisprudence that a person entering a particular class/grade in service would be placed at the bottom of the list. This Court finds that the private respondents had acquired their respective Degrees in Pharmacy prior to entering into service and prior to the date when the petitioners in both the writ petitions acquired their Degree in Pharmacy. In view of the same, this Court is of the considered opinion that if a Degree holder in Pharmacy is below the Certificate holder in Pharmacy and Diploma holder in Pharmacy, and if in respect of the vacancies, a Degree holder candidate is eligible as per norms, in such a case, irrespective of his position in the seniority list in comparison to a non-degree holder, he can be granted promotion even though he is junior in the combined seniority list. Therefore, to avoid this possible situation, the petitioners had obtained their Degree in Pharmacy. 25. Therefore, when the petitioners in both the writ petitions were promoted to next higher post as Senior Pharmacist onwards by way of the impugned promotion orders, the petitioners were placed at the bottom of the list because the private respondents had obtained their Degree in Pharmacy at the time of joining the service and prior to the date when the petitioners had obtained their Degree, while in service. 26. It has been stated herein before that as stated in the Bar, the Nagaland Pharmacist Service Rules, 2018 has been notified vide Notification No. HFW(A)/SR-7/4/2017 dated 08.08.2018. Prior to the same, there was no Service Rules or executive instructions on the conditions of service. Since 2009, the intention of the Government was to frame service Rules in such a manner that the Certificate holders were to be phased out and, as such, with the said intention, the authorities by notification dated 13.11.2015, had upgraded the post of Pharmacist Grade-1 and Grade-II, Senior Pharmacist, Head Pharmacist, District Pharmacy Officer/Deputy Chief Pharmacist, Chief Pharmacist/Deputy Director (Pharmacy) by providing that the higher posts would be filled up with a gap of 1 (one) year beginning from 2014 by following the policy of promotion of 80:10:10 until the certificate holders are phased out and it was also provided that the Department shall add a proviso to the clause in Schedule-II, item 4 that this ratio shall in no way deprive the relative seniority of the Diploma/Degree holders. Thus, on and from 2014, when relative seniority list was re-classified on the basis of educational qualification, according to the opinion of this Court, there is no infirmity in placing the petitioners in the two writ petitions below the private respondents, as the private respondents had acquired their respective educational qualification, in course of service, i.e. after the private respondents had obtained their Degree. In the present case, the authorities have placed the persons having a particular qualification in a group, but without discriminating amongst persons in the said "degree qualification category", by keeping the petitioner after the private respondents, who had acquired their degree prior to the date when the petitioners had acquired their 'degree' qualification. Thus, the placing of the petitioner below the private respondents, according to this Court, does not constitute a change in the conditions of service. Thus, the placing of the petitioner below the private respondents, according to this Court, does not constitute a change in the conditions of service. This is because the petitioners had entered into service prior to the private respondents, but with lower qualification of having a 'Diploma', whereas when the private respondents had entered into service, they were already having Degree in Pharmacy. Therefore, when the Service Rules have now come into force w.e.f. 08.08.2018, the petitioners cannot be permitted to retain their seniority, when their entry into service was by a lower educational qualification than that of the private respondents. 27. In the case of Shamkant Narayan Deshpande (supra), the Hon'ble Supreme Court has held that it is well settled that in the absence of a Rule or Regulation the authority can prescribe service conditions by executive instructions, and that the Hon'ble Supreme Court had further stated that the said finding was supported by the case of Mysore State Road Transport Corporation Vs. Gopinath Gundachar Char, (1986) 1 SCR 767 and V. Balasubramaniam Vs. Tamil Nadu Housing Board, (1987) 4 SCC 738 . It is also seen that the Hon'ble Delhi High Court in the case of M.A. Khan (supra), has held as follows: "29. Nothing prevented respondents 2 & 3 from acquiring the qualifications first. They choose to continue as diploma holders and would thus have been considered for promotion only as diploma holders but for the opportunity made available by amendment of the promotion rules giving another fast track for promotion for such of the diploma holders who acquired a degree. The moment they acquired a degree they come in a different category and stream and thus have obviously a chance for faster promotion because that would be the only reason for them to seek promotion in that chancel. This is also obvious from the minimum time period required of service before a diploma holder or degree holder gets promoted. It is in fact to encourage diploma holders to acquire a degree and thus they become eligible for holding higher posts which are reserved for degree holders that such an amendment to the rules came into force. No doubt there is a minimum period of service required post acquiring the degree before a person becomes eligible. It is in fact to encourage diploma holders to acquire a degree and thus they become eligible for holding higher posts which are reserved for degree holders that such an amendment to the rules came into force. No doubt there is a minimum period of service required post acquiring the degree before a person becomes eligible. But then such eligibility will be acquired at different points of time depending on when a diploma holder obtains a degree as a person obtaining a degree later would come into the eligibility stream later, the three (3) years period starting post acquiring the degree. The person obtaining the degree first; thus comes into the eligible pool earlier and is ranked higher for purposes of consideration for promotion, the date of his having acquired the degree becoming material. 35. No doubt the earlier norms being adopted as per an affidavit filed by respondent No. 1 was of seniority having precedence but then that was not when this rule providing for accelerated possibility of promotion to the diploma holders on acquiring a degree was in question. The promotion rules were amended in pursuance to the representations received from the diploma holders who wanted to shift the stream by acquiring a degree and thus a quota was carved out for them. If they want to get promotion through this quota then their seniority in this quota would alone be the criteria, the date of acquiring the degree and not the period rendered in service as a diploma holder. That is why some period of service has to be post acquiring the degree." 28. Thus, the first issue is answered by holding that the positioning of the petitioners in both writ petitions as well as the private respondents in the impugned order on the basis of date of acquiring of the educational qualification is based on some reasonable classification, and reasonable basis and, as such, the same is not found to be vitiated by lack of fair play and arbitrariness. 29. 29. In view of the discussions above, in respect of the second issue, this Court is of the considered opinion that the seniority position of the petitioners in both the writ petitions, who were placed below that of the private respondents on the basis that they had acquired their educational qualification of "Degree in Pharmacy" after entry of the private respondents in service is found to be sustainable on the touchstone of Article 14 and Article 16 of the Constitution of India, and it cannot be said that the petitioners in both the writ petitions have been discriminated against 30. Thus, both the writ petitions fail and accordingly, both the said writ petitions are dismissed.