KISHOR KUMAR & ORS.versusPRADEEP SHUKLA & ORS.

                    [2012] 2 S.C.R. 251

                 KISHOR KUMAR & ORS.                              A
                              v.
               PRADEEP SHUKLA & ORS.
              (S.L.P.(C) Nos. 22590 of2011)
                   FEBRUARY 29, 2012

    [ALTAMAS KABIR AND J. CHELAMESWAR, JJ.]

   U.P. PROCEDURE FOR DIRECT RECRUITMENT OF
GROUP 'C' POSTS (OUTSIDE THE PURVIEW OF PUBLIC
SERVICE COMMISSION) RULES, 2000:                                  C
     r. 15(2) - Appointment to 766 posts of Pharmacists
advertised on 12. 11. 2007 - Held: As has been held in
Santosh Kumar Mishra's case, the dec;ision taken by State
Government to accommodate the diploma-holders in batches          0
against their respective years could be discontinued at a later
stage, but not to the disadvantage those who had been denied
the opportunity of being appointed by virtue of the same Rules
- The subsequent policy could be introduced after the private
respondents and those similarly situated persons were             E
accommodated - All candidates who were similarly situated
as the original petitioners would be entitled to the benefit of
the judgment in Santosh Kumar Mishra's case.

     The instant special leave petitions arose out of the
writ petitions questioning the select list prepared on            F
14.2.2011 after the decision of the Supreme Court in
Santosh Kumar Mishra's case, the subject matter whereof
was the advertisement dated 12.11.200rfor filling up 766
vacancies of pharmacists in the State of Uttar Pradesh.
The case of the petitioners was that despsite having              G
better merit, they were not selected for filling up the 766
vacancies. The case of the respondents was that as per
r.15(2) of the U.P. Procedure for Direct Recruitment of
Group 'C' Posts (Outside the Purview of Public Service
                           251                                    H
    252       SUPREME COURT REPORTS           [2012] 2 S.C.R.


A Commission) Rules, 2000, diploma-holders were to be
  appointed against the vacancies which became avail,;:ible
  in each recruitment year, by first appointing batchwise
  those pharmacists who had obtained their diplomas
  earlier, irrespective of their merit.
B
       Dismissing the petitions, the Court

          HELD:

       The matter has already been decided in the case of
c Santosh Kumar Mishra* wherein it has been directed by
  this Court that the candidates could be appointed against
  the vacancies in order of their inter-se seniority as per the
  vacancies available in each year. It was directed that the
  decision taken by the State Government to accommodate
0 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
E 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 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
F similarly situated persons have been accommodated.
  Therefore, there is no reason to interfere with the order
  of the Division Bench of the Hi_gh Court. All the pending
  applications shall stand disposed of by virtue of this
  judgment. All candidates, who were similarly situated as
G the original petitioners, would be entitled to the benefit
  of the judgment delivered in Santosh Kumar Mishra's
  case. [para 8, 12 and 14] [256-D-F; 257-E, G]

          *State of UP. & Anr. Vs. Santosh Kumar Mishra & Ors.
H
  KISHOR KUMAR & .ORS. v. PRADEEP SHUKLA &                  253
                    ORS.
2010 (9) SCR 942 = (2010) 9 sec 52 - relied on.                    A
                      Case Law Reference:
    2010 (9 ) SCR 942          relied on             para 8
    CIVIL APPELLATE JURISDICTION : SLP (Civil) No.                 B
22590 of 2011.
    From the Judgment & Order dated 12.07.2011 oft he High
Court of Judicature at Allahabad Lucknow Bench, Lucknow in
Contempt Petition No. 2209 of 2009.
                             WITH                                  C
SLP (C) Nos. 27086 of 2011 & 4130 of 2012.
     Mahalakshmi Pavani, Mukesh Verma, Pawan Shukla,
Yash Pal Dhingra, T. Mahipal, Dr. S. Bhardwaj, Archana P.
Dave, Mridule Ray Bhardwaj, Veera Kaul Singh, C.J. Sahu,           D
Jasbir Singh Malik, S.K. Sabharwal, Shree Pal Singh,
Niranjana Singh, K.L. Janjani, SaJpal Singh,Vidhi International,
Anjani Kumar Mishra, Sunita Sharma for the appearing parties.
    The Judgment of the Court was delivered by
     ALTAMAS KABIR, J. 1. These three Special Leave                E
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               F
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 G
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·
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   254       SUPREME COURT REPORTS                [2012] 2 S.C.R.

                                    \
A to controversies as to how the appointments were to be filled
  up.
         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
B 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
C 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
o selected and appointed first in respect of the vacancies
  advertised, as they belonged to previous batches and had been
  denied appointment by the State Government earlier on the
  plea that notwithstanding their merit being superior to some of
  the diploma holders, those who had obtained diplomas prior
E 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-a-vis the diploma
F 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
G 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 1980 Rules, by specifying the vacancies
  year-wise, and, thereafter, appointing the Writ Petitioners to the
H post of Pha~macist after providing for age relaxation.
 KISHOR KUMAR & ORS. v. PRADEEP SHUKLA &                      255
          ORS. [ALTAMAS KABIR, J.]
     5. According to the Respondents, it was not open to the         A
State Government to interpre't 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        B
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      c
a direction that the case of the Appellants would be considered
in accordance with the pre-existing practice by considering their
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
                                                                     0
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          E
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            F
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 the turn of the
Respondents came to be appointed on the basis thereof on             G
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.                                                             H
    256      SUPREME COURT REPORTS                [2012] 2 S.C.R.


A      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
B 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
C 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
o the Special Leave Petitions vide judgment dated 3.8.2010
  titled State of UP. & Anr. Vs. Santosh Kumar Mishra & Ors.
  reported in (2010) 9 sec 52, and directed that the decision
  taken by the State Government to accommodate the diploma
  holders in batches against their respective years, could be
E 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
F their disadvantage to prevent them from being appointed,
  introducing the 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.
G       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
H Court stayed the select list prepared on 14.2.2011 and directed
  KISHOR KUMAR & ORS. v. PRADEEP SHUKLA &                    257
           ORS. [ALTAMAS KABIR, J.]
not to make any appointments therefrom. At the same, time,           A
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.
     10. It is in such background that these Special Leave
Petitions came to be filed by candidates who had not been            B
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               C
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            D
·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 in each year. That      E
 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,
                                                                     F
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        G
delivered in State of UP. & Anr. Vs. Santosh Kumar Mishra
& Ors. (supra).
 R.P.                        Special Leave Petition dismissed.

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