STATE OF U.P. AND ANR.versusSANTOSH KUMAR MISHRA AND ANR.

                        [2010] 9 S.C.R. 942


A                    STATE OF U.P. AND ANR.
                                  v.          .
              SANTOSH KUMAR MISHRA AND ANR.
          (Special Leave Petition (C) No. 20558 of 2009)

                         AUGUST 03, 2010
B
           [ALTAMAS KABIR AND SURINDER SINGH
                       NIJJAR, JJ.]

        Service Law - Selection and appointment of Pharmacy
C diploma holders as Pharmacists in the State of Uttar Pradesh
  - On an interpretation of the 1980 Rules, the State
  Government followed the practice of adjusting diploma
  holders of the previous batches against the vacancies first,
  irrespective of their merit vis-a-vis the diploma holders of
D subsequent batches - Accordingly, the respondents-diploma
  holders, being of subsequent batches, were denied
  appointment - However, when fresh vacancies were declared
  and the respondents were to be appointed on the same
  principle and practice, the State Government again denied
E them appointment citing merit as the criterion by interpreting
  the Rules of 1980 read with Rules of 2002, as amended by
  the Rules of 2003 - Held: The action of the State authorities,
  in the face of apparent injustice caused to the respondents,
  cannot be justified - The same decision which was taken to
F deprive the respondents from being appointed, could not be
  discarded, once again to their disadvantage to prevent them
  from being appointed, by introducing the concept of merit
  selection at a later stage, though the same may be introduced
  after the respondents and similarly-situated persons have
  been accommodated - This is not a case for applying the
G "doctrine of past practice" alone, in addition, this is a case
   which involves the deprivation of certain candidates by
   application of the procedure differently at two different points
   of time - U.P. Procedure for Direct Recruitment of Group 'C'

H                                942
  STATE OF U.P. AND ANR. v. SANTOSH KUMAR            943
              MISHRA AND ANR.

Posts (Outside the Purview of Public Service Commission) A
Rules, 2002, as amended by the UP. Procedure for Direct
Recruitment of Group 'C' Posts (Outside the Purview of Public
Service Commission) (First Amendment) Rules, 2003 -
Doctrines - Doctrine of "past practice" - Equity.
                                                             8
    An advertisement was issued in the State of Uttar
Pradesh for filling up the posts of Pharmacist by
selection and appointment of diploma holders in
Pharmacy. The advertisement provided that the
recruitment would be made in accordance with the U.P.
Procedure for Direct Recruitment of Group 'C' Posts
                                                            c
(Outside the Purview of Public Service Commission)
Rules, 2002, as amended by the U.P. Procedure for Direct
Recruitment of Group 'C' Posts (Outside the Purview of
Public Service Commission) (First Amendment) Rules,
2003, and the relevant Service Rules in force with regard · D
to educational qualifications and other conditions of
service.

    The respondents moved writ petitions before the
High Court contending that on an interpretation of Rule E
15(2) of the U.P. Pharmacists Service Rules, 1980, the
State Government had denied them appointment earlier
on the ground that the diploma holders, who had
obtained diploma prior in point of time, were to be given
appointment first; however, when fresh vacancies were F
declared in the year 2007 and the respondents were ·to
be appointed on the same principle and practice, the
State Government denied them appointment citing the
Rules of 1980 read with Rules of 2002, as amended by
the Rules of 2003.                                        G
    The Single Judge of the High Court held that
selection was required to be done as per the provisions
of Rule 15(2) of the 1980 Rules, on the basis of the marks

                                                             H
    944      SUPREME COURT REPORTS              [2010] 9 S.C.R.


A   obtained in the Pharmacy Diploma Examination,
    irre.spective of the year in which the incumbents had
    obtained their diplomas in Pharmacy. The Division Bench
    of the High Court however directed that the case of the
    respondents was required to be considered in
B   accordance with pre-existing practice by considering
    their appointment on the basis of their merit as was being
    done earlier, but this process be available only for said
    respondents, while the remaining vacancies were
    required to be filled in by following Rule 15(2) strictly as
c   directed by the Single Judge.

          Disposing of the special leave petitions, the Court

       HELD:1.1. Having particular regard to the fact that a
  practice which had been consistently followed and had
D deprived some of the diploma-holders in Pharmacy
  earlier, is now being discarded against them to deprive
  them of an opportunity of employment, the action of the
  State authorities, in the face of apparent injustice caused
  to the respondents, cannot be justified. The Single Judge
E of the High Court erred in directing that the selections of
  even the said respondents were to be made strictly on
  the criteria of merit, irrespective of the batch in which the
  incumbents had obtained their diplomas in Pharmacy.
  The Division Bench rightly held that the injustice caused
F to the respondents on account of the interpretation of the
  Rules to their disadvantage at a subsequent stage by the
  State Government, required to be corrected. [Para 31]
  (960-F-H; 961-~-C]

      1.2. It is on account of a deliberate decision taken by
G the State Government that the respondents were left out
  of the zone of consideration for appointment as
  Pharmacists in order to accommodate those who had
  obtained their diplomas earlier. The decision taken by the
  State Government at that time to accommodate the
H
   SlATE OF U.P. AND ANR. v. SANTOSH KUMAR             945
                MISHRA AND ANR.

diploma-holders in batches against their respective years      A
can no doubt be discontinued at a later stage, but not to
the disadvantage of those who had been deprived of an
opportunity of being appointed by virtue of the same
Rules. The same decision which was taken to deprive the
respondents from being appointed, could not now be             B
discarded, once again to their disadvantage to prevent
them from being appointed, introducing the concept of
merit selection at a later stage. The same may be
 introduced after the respondents and those similarly-
situated persons have been accommodated. [Para 32]             c
[961-C-F]

     1.3. In the present case, a certain set of Rules were
applied in a manner which deprived the respondents of
an opportunity to be considered for appointment as
Pharmacists, despite having acquired the requisite             D
qualification, and they were deprived of appointment
once again by discarding the same Rules to their
detriment. This is not a case for applying the "doctrine
of past practice" alone, in addition, this is a case which
involves the deprivation of certain candidates by              E
application of the procedure differently at two different
points of time. In the facts of the case, no interference is
called for with the decision of the Division Bench of the
High Court impugned in these SLPs. [Paras 33, 34) [962-
A-F]                                                           F

    S. Prakash & Anr. v. K.M. Kurian & Ors. (1999) 5 SCC
624 - distinguished.

   N. Suresh Nathan & Anr. v. UO/ & Ors. (1992) Supp. (1)
SCC 584 - relied on.                                           G

    Maya Mathew v. State of Kera/a & Anr. 2010 (2) SCALE
833; Suraj Prakash Gupta & Ors. v. State of J&K & Ors.
(2000) 7 SCC 561 and Shai/endra Dania & Ors. v. S.P. Dubey
& Ors. (2007) 5 SCC 535 - referred to.                         H
    946    SUPREME COURT REPORTS                [2010] 9 S.C.R.


A                        Case Law Reference:
      (1999) 5 sec 624            distinguished       Para 18
      2010 (2) SCALE 833          referred to         Para 19
      (2000) 1 sec 561            referred to         Para 20
B
      (1992) Supp. (1) sec 584    relied on           Para 23

      (2007) 5 sec 535            referred to         Para 24

      CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
C 20558 of 2009.

        From the Judgment & Order dated 04.05.2009 of the High
    Cow1 of Judicature at Allahabad, Lucknow Bench, Lucknow in
    Special Appeal No. 377 of 2008.
D
                              WITH

    SLP (C) Nos. 20774, 20901, 20908, 22749, 22955, 25649,
    20785, 20769, 22655,. 22678, 22732, 22851, 25647, 32977,
    22114 of 2009.                          ·
E
       Shobha Dikshit, L. Nageshwar Rao, lndu Malhotra, S.R.
  Singh, Ajay Kr. Mishra, Kailash Vasdev, June Chaudhari,
  Anoop G. Choudhary, P.S. Naras.imhan, A. Mariaputham, Vined
  Kumar, Singh, D. Roy Choudhary, Dinesh Dwivedi, AAG,
F Niranjana Singh, S.K. Dwivedi, Malvika Trivedi, Ashutosh Kr.
  Sharma, Vandana Mishra, Arunav Patnaik, Soma Patnaik,
  Shibashish Misra, Saurabh Misra, Vined Kumar Jotdeep
  Mazumdar, C.R. Addy, Rajesh Kumar, Kaushal Yadav, Neeraj
  Shekhar, Jetendera Singh, Priyanka Singh, S.K. Sabharwal,
G D.N. Dubey, Sunita Pandit, A. Nishant Yadav, A. Singh, H.
  Tyagi, Vivek Vishnoi, Mukesh Verma, Yash Pal Dhingra, Aftab
  Alam, Praveen Agrawla, Anuradha Dubey Mishra, Tulica M.
  Vikram, R.R. Tiwary, Rashid Khan, Sandeep Garosa, Suresh
  Singh, ~.lehtab Khan, Aftab Ali Khan, Dr. Sumant Bhardwaj,

H
  STATE OF U.P. AND ANR. v. SANTOSH KUMAR                      947
               MISHRA AND ANR.

Vivekanand Mishra, 'Archna Pathak Dave, Mridula Ray . A
Bhardwaj, Yogesh Tiwari, Dr. Vipin Gupta, Chiraranjan Addey,
T. Mahipal, Ritesh Agrawal, Pankaj Singh, C.L. Sahu, S.K.
Verma, Mukesh K. Giri Vidya Bhardwaj, Vishwajit Singh, Jasbir
Singh, Malik, MukeshVerma, Aftab Alam, Sanjay Mani Tripathi,
Kamal Kant Tripathi, Gauri Karuna Karna Das, Shree Pal B
Singh, Rahul Singh, K.S. Rama Rao, Praveen Agrawal,
Anuradha D. Mishra, Tulika Mukherjee, R.C. Tewari, Vivek
Singh, Vidya Bhardwaj, Mukesh K. Giri, Abdul Qadir, Mehtab
Bahl, Sandeep Govosa, Santosh Tripathi, Onkar Paday Dev,
Sarika Singh, S.K. Mishra, Devyate, Pankaj Kumar Singh, c
J.P.N. Gupta, K.L. Janjani, Anish Kumar Gupta, Jitender Singh,
Qeep Shikha Bharti, Vishwajit Singh, Siddharth Sagar,
Abhindera Maheshwari, Pankaj Singh, Rashmi Singh, Pankaj
Sharma, Archana Singh, Ajay Kumar Misra, Praveen Agrwal,
Anuradha Dubey, Bharat Dubey, Hema Sahu, Rishab Sahu,
                                                               0
C.L. Sahu, Santosh Mishra, Dharmendra Kumar Sinha, R.C.
Kaushik, S. Janani, S.K. Verma, Vikas Mehta, Asha Gopalan
Nair, Rana Ranjit Singh, Vivek Singh, Harinder Mohan Singh
for the appearing Parites.

     The Judgment of the Court was delivered by                        E

     ALTAMAS KABIR, J. 1. The same criteria differently
applied at two different points of time leading to different results
and consequences, is the problem we are faced with in these
Special Leave Petitions. The same principles which were                F
applied in the case of the Respondents to deny them the benefit
of appointment, were not given effect to when it came to their
turn to get the benefit thereof.

    2. In order to appreciate this unusual situation, it is
necessary to [elate some of the relevant facts of these cases.         G

     3. The Respondents have passed the diploma course in
Pharmacy from different institutions which have been
recognized by the Pharmacy Council of India and are also
registered with the State Pharmacy Council of U.P. Their claim         H
    948     SUPREME COURT REPORTS                 [2010] 9 S.C.R.


A is for selection and appointment to the post of Pharmacist,
  which is governed by the U.P. Pharmacists Service Rules,
  1980, hereinafter referred to as the '1980 Rules'. According to
  them, under Rule 15(2) of the 1980 Rules, all diploma holders
  were required to be appointed against the vacancies which
B became available in each recruitment year by first appointing
  those Pharmacists who had obtained their diplomas earlier.

        4. They claim that appointment to the post of Pharmacist
  should be made batchwise from each year and that the
  vacancies which had accrued, should be filled up by giving
C appointment to those Pharmacists according to the rlates on
  which they had obtained their diplomas, irrespective of their
  me!rit. According to the Respondents, till those belonging to the
  earlier batches were not considered and given appointments
  in such vacancies, the diploma holders of the subsequent
D batches should not be given appointment, irrespective of their
  me!rit.

         5. The aforesaid controversy was triggered by an
    advertisement dated 12th November, 2007, whereby 766
E   vacancies were advertised for being filled up by diploma
    holders. The advertisement provided that the recruitment would
    be made in accordance with the U.P. Procedure for Direct
    Recruitment of Group 'C' Posts (Outside the Purview of Public
    Service Commission) Rules, 2000, as amended by the U.P.
F   Procedure for Direct Recruitment of Group 'C' Posts (Outside
    the Purview of Public Service Commission) (First Amendment)
    Rules, 2003, and the relevant Service Rules in force with regard
    to educational qualifications and other conditions of service.

       6. According to the Respondents, on an interpretation of
G Rule 15(2) of the 1980 Rules by the State Government, they
  were entitled to be selected and appointed first on the
  vacancies advertised, as they belonged to previous batches
  and were denied appointment by the State Government earlier
  on the plea that notwithstanding their merit being superior to
H
    STATE OF U.P. AND ANR. v. SANTOSH KUMAR                    949
       MISHRA AND ANR. [ALTAMAS KABIR, J.]

those of some of the diploma holders, who had obtained                 A
diploma prior in point of time, the latter candidates were to be
given appointment first. As a result, those diploma holders, who
had obtained diploma before the Respondents, were adjusted
against the vacancies first, irrespective of their merit vis-a-vis
the diploma holders of subsequent batches and the said                 8
practice was continued till 2002. 1 However, when the fresh
vacancies were declared and the Respondents were to be
appointed on the same principle and practice, they were
denied the benefit of the same citing the Rules of 1980 read
with Rules of 2002, as amended by the Rules of 2003.                   C
According to the Respondents, it was not open to the State
government to take a different stand in interpreting the Rules
to severe prejudice of the Respondents' right to appointment,
though similarly s_ituated persons have been given the benefit
of the said Rules and whereunder the Respondents had been
denied appointment when their turn came to be appointed.               D

       7. Questioning the said discriminatory arid arbitrary
 ,treatment, the Respondents herein moved several writ petitions
  before the Lucknow Bench of the Allahabad High Court for
  quashing the above-mentioned advertisement dated 12th                E
  November, 2007 and for a writ in the nature of Mandamus to
  command the Petitioners herein to make recruitment to the
  vacant posts of Pharmacists 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 post   F
  of Pharmacists after providing for age relaxation. A further
  prayer was made in one of the writ petitions (Writ Petition
  No.7771 (SS) of 2007) to declare Rule 5(2)(iv)(b) of the
  amended Rules as ultra vires. After a detailed consideration
  of the rules and the existing procedures, the amended Rules          G
· were held to be intra vires. Considering the same, the
  Petitioners herein were competent to issue the advertisement
  and to constitute a Selection Committee in terms of Rule 6 of
  the 2002 Rules and the First Amendment Rules 2003. It was,
  however, also indicated that until and unless Clause (a) of Sub-     H
    950     SUPREME COURT REPORTS                   [2010) 9 S.C.R.


A Rule (3) of Rule 5 of the 2003 Rules was amended, selection
  could not be undertaken by computing the marks as per the
  procedure prescribed therein and selection had to take place
  as per the provisions of Rule 15(2) of the 1980 Rules on the
  basis of the marks obtained in the Pharmacy Diploma
B Examination.

         8. The said order of the learned Single Judge was
    challenged by the Respondents herein in several writ appeals
    before the Division Bench of the Lucknow Bench of the
    Allahabad High Court.
c
        9. Taking notice of the peculiar situation which had ·
    developed on account of the differing interpretations of the
    Rules in question, the Division Bench very succinctly
    summarized the issue in the following words :
D
         "A peculiar and a piquant situation has arisen in the instant
         case, where it is not the case that an aspirant of the higher
       · post in service on becoming eligible for promotion or a
         person seeking direct appointment on the date when he
         is to be considered for such a promotion or appointment,
E        seeks to interpret the rule of recruitment in a particular
         manner, looking to the past practice, to his advantage, but
         here is a case where the appellants were excluded from
         consideration of their appointment at the relevant time
         earlier, by interpreting the rule to their disadvantage, and
F        were made to believe that likewise their candidature shall
         be considered later on, for which _;various circulars and
         instructions were also issued by the State Government,
        'but when their turn came for getting employment, they were
         again being put out of consideration, by interpreting the
G        rule in a different manner."

      10. On the basis of its aforesaid observations, the Division
  Bench disposed of the several appeals with a direction that the
  case of the Appellants therein would be considered in
H accordance with pre-existing practice by considering their
   STATE OF U.P. AND ANR. v. SANTOSH KUMAR                 951
      MISHRA AND ANR. [ALTAMAS KABIR, J.]

appointment on the basis of their merit taking their objects into A
consideration as was being done earlier, but this process would
be available only for said appellants. They would be
accommodated if they were otherwise found eligible and the
remaining vacancies would be filled in by following Rule 15(2)
strictly as directed by the Single Judge. A direction was also B
given to the respondents in the said appeals to give age
relaxation to the said appellants as per the Rules, if they had
crossed the age limit, for the reason that right from the year
1998 no selection had been made and in certain cases, age
relaxation had already been given. A further direction was given c
to complete the selection process within three months from the
date of receipt of a certified copy of the order.

     11. Appearing for the Petitioners, Ms. Shobha Dikshit,
learned Advocate, submitted that the 1980 Rules prescribe the
eligibility conditions for selection of Pharmacists. Rule 10 D
provides for the minimum and maximum ages while Rule 14
provides for determining the number of vacancies to be filled
during the course of the year. Rule 15 provides the procedure
for direct recruitment by the constitution of a Selection
Committee and preparation of a select list in order of merit, E
which would be valid for a period of one year. On the other hand,
the 2003 Rules provide the detailed procedure for determining
the merit and suitability of candidates with technical
qualifications. Ms. Dikshit submitted that there was no clash or
contradiction between the said two Rules and that both, F
therefore, exist side by side.

       12. Ms. Dikshit submitted that the 2003 Rules were being
 followed by the State Government for direct recruitment to Class
 Ill posts which were outside the purview of the Public Service G
 Commission, such as Pharmacists, Lab. Technicians, ECG
 Technicians, etc. She submitted that the last advertisement
 dated 11th February, 2007 was a composite advertisement
jJ)Viting applications from all paramedical trades such as
 Pharmacists, Lab. Technicians, X-ray Technicians, H
 Physiotherapists and ECG Technicians and selections had
    952     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A   already been made. It was also submitted that while filling the
    backlog of reserved category candidates for filling up the posts
    of Pharmacists for the year 2007, the Rules of 1980 read with
    the Rules of 2003 had been followed and about 73 vacancies
    had been duly filled in. Furthermore, since the matters relating
B   to selection and appointment of Pharmacists were pending
    consideration before this Court for other trades other than the
    selection of Pharmacists, the Rules of 2003 had been applied
    and the selected candidates had already joined their posts.

          13. Ms. Dikshit, submitted that Rule 5 of 2003 Rules made
C   it very clear that only the merit of the eligible candidates was
    required to be judged on the basis of the minimum technical
    qualifications, as provided in the Educational Regulation Act,
    1991, for the diploma course in Pharmacy, and the marks
    obtained in the qualifying examination and the diploma in
D   Pharmacy are taken into consideration for determining merit.
    The method adopted for allocating certain percentage of m·arks
    as contained in Sub-Rule (2) is only to give more credit to
    meritorious candidates as compared to candidates having
    lesser merit. Ms. Dikshit urged that the special procedure did
E   not offend Article 14 of the Constitution nor was it contrary to
    the 1980 Rules, since it did not result in any kind of bias or
    prejudice to the candidates of any particular batch. Ms. Dikshit
    submitted that all eligible candidates were graded similarly and
    the object of the procedure, as provided in the 2003 rules, is
F   to adjudge the merits of the candidates on the basis of the
    technical qualifications uniformly throughout the State so as to
    maintain efficiency in Government service.

          14. Ms. Dikshit submitted that the observations made to
G   the contrary by the learned Single Judge of the High Court were
    erroneous and instead of appreciating the same, the Division
    Bench also erroneously accepted the contentions that
    notwithstanding the 2003 Rules, the past practice should be
    followed. Ms. Dikshit submitted that neither was there any past
    practice nor was there any other rule or guidelines for
H
    STATE OF U.P. AND ANR. v. SANTOSH KUMAR                   953
       MISHRA AND ANR. [ALTAMAS KABIR, J.]

 selections to be made for appointment to the post of                 A
 Pharmacist after the year 2003, when the 2002 Rules came into
 operation. According to Ms. Dikshit, even otherwise, the
 directions issued by the Division Bench in the impugned
 judgment would create two different procedures to select
 candidates in one selection process.                                 B

        15. Ms. Dikshit also urged that the tenor of the impugned
  judgment gives the impression that the State Government had
  been following a practice of giving preference to earlier batches
  over later batches. According to Ms. Dikshit, such a practice
  was factually incorrect and till date" no candidate frorn previous · C
  batches had been left out: However, having regard to the
  decision of fhe High Court in case of Rajat Yadav & Anr. vs.
  State of U.P. & Anr. (Writ Petition No.2473 (SS) of 2000),
  issuing a mandamus to the State Government to accommodate
  the 54 candidates left over from the selection, the State D
  Government, while implementing the said direction, had filled
. up the posts accordingly. In the process of such an exercise,
  candidates with lesser merit came to be appointed, more so,
   having regard to the fact that the State Government did not
  choose to challenge the correctness of the judgment. Ms. E
   Dikshit submitted that even on such grounds the stand of the
   Respondents that past practice should be followed in future
  also ignoring merit, was not .;apable of being accepted.
  According to Ms. Dikshit, such an action would be contrary to
  the 1980 Rules and the established service jurisprudence. She F
  also pointed out that the learned Single Judge had come to the
   positive conclusion that only an amendment was made to Rule
  5(3)(a) since selection could not be undertaken by computing
  the marks in terms of tlie procedure prescribed, and, on the
  other hand, selection would have to take place as per the . G
   provisions of Rule 15(2) of the U.P. Pharmacists Service Rules,
   1980, on the basis of the marks obtained in the Pharmacy
   Diploma Examination, irrespective of the year in which the
   candidate had appeared in the Diploma Examination.
                                                                      H
    954     SUPREME COURT REPORTS                   (2010] 9 S.C.R.


A      16. Several Special Appeals were filed by the writ
  Petitioners before the High Court which were disposed of by
  a common judgment dated 4th May, 2009, with a direction that
  the age of the Respondents be relaxed as per rule, if they had
  crossed the age limit for the reason that right from the year
B 1998, no selection· had been made and in certain cases, age
  relaxation had been granted.

           17. Ms. Dikshit further pointed out that while disposing of
    the Writ Appeals, the Division Bench of the High Court had also
    relied on the submission that unless the Respondents were
C   considered for selection, they would lose their right to be
    considered for such selection for all times to come on account
    of an incorrect interpretation of the Rule, forgetting that the
    Respondents could have challenged their non-selection at the
    time when they were excluded from the zone of consider~tion
D   on the ground that their case would be considered only after
    the diploma holders who had obtained diploma prior to them
    were accommodated or selected \rrespective of their merit. Ms.
    Dikshit concluded on the note that if the State Government had
    interpreted the rule in question otherwise and had adopted a
E   policy which would accommodate all diploma holders and the
    same was not challenged by the Respondents and, on the other
    hand, the State Government deliberately and consciously, in the
    interest of the diploma holders, adopted a policy which would
    accommodate all diploma holders, the Petitioners could not be
F   penalized for not coming to court earlier. Ms. Dikshit submitted
    that having regard to the rules for appointment to the post of
    Pharmacist having been promulgated in the year 2003, there
    was no justification in the claim of the Respondents that for
    filling up future vacancies the cases of the candidates who had
G   obtained their diplor.-,as earlier should be considered for
    appointment in earlier batches till such time as all such
    candidates were accommodated against the vacancies that
    existed or were to arise in future. Ms. Dikshit submitted that the
    judgment and order of the learned Single Judge, as also the
H   Appeal Court, was liable to be set aside.
  STATE OF U.P. AND ANR. v. SANTOSH KUMAR                 955
     MISHRA AND ANR. [ALTAMAS KABIR, J.]

       18. In support of her aforesaid submissions, Ms. Dikshit A
firstly referred to the decision of this Court in S. Prakash & Anr.
vs. K.M. Kurian & Ors. [(1999) 5 SCC 624], which deals with
the question of rules of interpretation and in this case the
interpretation of the maxim "generalia specialibus non
derogant" and "generalia specialibus derogant". The first of the B
two maxims indicate that general things do not derogate from
special things and it was held by this Court that although,
ordinarily the special law would override the general law, in
special circumstances if the language of the general provision
is clear and unqualifying, it would prevail over the special c
provision and the special provision would have to give way, if
the legislature intended to establish a rule of universal
application. Ms. Dikshit urged that in the instant case, since
there was no existing rule and only a practice was being
followed, when a special provision was enacted relating to D
 recruitment, the same would have precedence over the past
 practice which had been followed till such time as the rules were
 promulgated.

     19. Ms. Dikshit also referred to the decision of this Court
in Maya Mathew vs. State of Kera/a & Anr. [2010 (2) SCALE E
833], which deals with the rules of interpretation when a special
matter is governed by two such rules. The ratio which was laid
down by this Court is that if a .. ubsequent law did not repeal
the earlier rule, there cannot be a presumption that the earlier
rule was intended to be repealed. It was indicated that when F
two provisions of law, one of which is general and the other is
special, govern the same matter, the court should make. an
attempt to give a harmonious construction to both the
provisions, but when there was a clear expression in the
general rules to exclude the special rules, the same would have G
to be given effect to. Applying the aforesaid decision to the
facts of the instant case, Ms. Dikshit urged that in the present
case when special rules have been framed for appointment to
the post of Pharmacist and earlier appointments to the said
post were made on the basis of the prevailing practice, it is H
    956     SUPREME COURT REPORTS                  [2010] 9 S.C.R.
          '\                                            .
A   the enacted r'l:iles which would prevail and the pract~ce ,as .
    followed so far would rave to give way.

         20. On the question of acting on the basis of the past
    practice for the purpose of appointment or promotion, Ms.
    Dikshit referred to the decision of this Court in Suraj Prakash
8
    Gupta & Ors. vs. State of J&K & Ors. [(2000) 7 SCC 561],
    wherein while considering the question of promotion on the
    basis of the quota and rota rules, this Court had occasion to
    consider the legal value of past practice in such matters. This
C   Court went on to hold that in the absence of any provision for
    rota in the rules, the same could not be claimed on the basis
    of past practice. Ms. Dikshit submitted that since in the 2003
    RiJles no mention had been made regarding the continuance
    of the appointment to the post of Pharmacist on the basis of
    past practice, both the Single Judge, as well as the Division
D   Bench of the High Court, had erred in placing reliance on the
    said practice and the appointments to be made on the basis
    thereof.

         21. Ms. Dikshit submitted that out of the 16,Special Leave
E   Petitions being heard, the State is the petitioner in 12 and the
    4 other SLPs have been filed by the private parties. Ms. Dikshit
    submitted that the submissions in respect of all the SLPs are
    common to those made in the instant SLP.

       22. Mr. L. Nageshwar Rao, learned Senior Advocate
F appearing for the Respondents in SLP(C)No.21570 of 2006,
  submitted that the said Special Leave Petition was in fact the
  lead matter and all the other Special Leave Petitions were filed
  subsequently for the same relief. Joining issue with the
  submissions made by Ms. Dikshit, Mr. Rao submitted that in
G order to prevent the perpetrating of an injustice which had been
  caused to the candidates who had successfully completed the
  diploma course in Pharmacy prior to 2003 and had been
  denied appointment solely on the ground that those who had
  completed Pharmacy course before each year, had to be
H accommodated first, and were being denied appointment on
   STATE OF U:P. AND ANR. v. SANTOSH KUMAR                    957
      MISHRA ANQ ANR.- [ALTAMAS KABIR, J.]
    ' .   \   -
the basis that such appointment could not be made batch-wise,        A
the High Court had to work out a formula by which they could
also be provided relief without interfering with the provisions of
the 2003 Rules, as has been indicated in the very beginning
of this judgment. Mr. Rao submitted that in 1998 only a part of
the 1992 batch of Pharmacists had been appointed in general          B
category and upto 1997 the reserve category had been
cleared. However, the .Respondents were only concerned with
the question of batch-wise promotion from prior to the
promulgation of 1993 Rules on the ground that having been
deprived once on the basis of the past practice, they could not      c
be deprived for the second time by virtue of the promulgation
of 2003 Rules. Further more, it was also pointed out that the
State Government had itself admitted in paragraph 22 of its
affidavit that the past practice was being followec;t for a long
time prior to the promulgation of 2003 Rules.                        D
      23. In support of his submissions, Mr. Rao relied on the
decision of this Court in N. Suresh Nathan & Anr. vs. UOI &
Ors. [(1992) Supp. (1) SCC 584], wherein, while considering
the question of promotion to the post of Assistant Engineer in
the Public Works Department, this Court had occasion to E
consider the construction of the service rules in consonance
with the long-standing practice in the concerned department and
it was held that such long standing practice was to be preferred.
In fact, in the said decision, this Court was considering the
decision of the Central Administrative Tribunal which had held F
that in considering the question of preferring the decree holders
in Civil Engineering to Diploma holders in the same discipline,
the case of the decree holders was to be preferred on account
of their superior qualification and question of past practice
could not be introduced while considering the respective cases G
of their promotion. Disagreeing with the view expressed by the
Tribunal, this Court was of the view that the rules must be
interpreted to mean that the three years' service in the grade
of a degree-holder for the purpose of Rule 11 is three years
from the date of obtaining the degree and that the same is quite H
    958     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A tenable and in conformity with past practice which had been
  followed consistently. Accordingly, the Tribunal was not justified
  in taking a contrary view and unsettling the settled practice in
  the said department.

s       24. Reference was also made to another decision in
  Shai/endra Dania & Ors. vs. S.P. Dubey & Ors. [(2007) 5 SCC
  535], where a similar question arose in connection with the
  eligibility for promotion wherein differential service experience
  based on differential educational qualifications had been
C prescribed and longer period of service experience was
  prescribed for diploma holder Junior Engineers in comparison
  to degree holder Junior Engineers for the post of Assistant
  Engineer. Explaining the rationale behind the permissibility of
  making such a distinction, this Court held that the difference
  between the service qualifications has been an essential
D criterion for promotion based on interest of an establishment.
  While considering the said question, this Court had also the
  occasion to consider the possibility of two views being taken
  while interpreting a particular set of service rules. In such a
  situation, this Court held that the rules should be interpreted in
E consonance with the practice followed by the department for a
  long time. In fact, while arriving at such a conclusion, this Court
  had also the occasion to consider the earlier case of N. Suresh
  Nathan (supra).

F      25. Mr. Rao urged that having applied the relevant Rules
  in a particular manner at a particular point of time to the
  prejudice of the Respondents, the Petitioners have acted
  arbitrarily and unfairly in not applying the same set of Rules,
  again to the prejudice of the Respondents, thereby completely
G eliminating the chance of appointment in case of some of the
  Respondents, who, in the meantime, had become over-aged.
  Mr. Rao submitted that such arbitrariness should not be
  allowed to continue and the decision of the Petitioners not to
  give batch-wise promotion to those Pharmacists, who have
H
     STATE OF U.P. AND ANR. v. SANTOSH KUMAR                959
        MISHRA AND ANR. [ALTAMAS KABIR, J.]

  obtained their diplomas prior to 1998, was liable to be          A
  quashed.

       26. The same line of submissions was advanced by Mr.
  Mukesh Giri, learned Advocate, appearing for some of the
/ Respondents in SLP(C)No.22678/09 and SLP(C)No.22749/             B
  09. In addition to what was submitted by Mr. Rao, Mr. Giri
  submitted that having regard to Rule 3(g) of the 1980 Rules,
  the vacancy position should have been provided by the State.
  On the other hand, there was a complete violation of the
  provisions of Rules 14 and 15 of the said Rules which provided   c
  for the same. Reiterating Mr. Rao's submissions, Mr. Giri
  submitted that the Respondents could not be denied an
  opportunity of employment twice on the basis of the same set
  of Rules, but on being applied differently.

        27. Mr. D. Roy Choudhary, learned Senior Advocate,         D
  appearing for some of the Respondents in SLP(C)No. 20558/
  09 and various other Special Leave Petitions, contended that
  if any inconsistencies were to be found in the 1980, 2002 and
  2003 Rules, the benefit would have to be presumed to be in
  favour of the Respondents. Mr. Roy Choudhary submitted that      E
  the question of discontinuance of the past practice was
  irrelevant and having followed the 1980 Rules consistently, it
  was not open to the State to resile from its position fo the
  detriment of those candidates who were available for
  appointment according to the said Rules, but were not            F
  considered, since the earlier diploma holders in Pharmacy had
  to be adjusted against the existing vacancies. Mr. Giri
  submitted that the decision of the High Court was sound and
  did not require any interference.

      28. Mr. S.K. Verl"l1a, learned counsel, who appeared for     G
  the private Respondents in SLP(C)No.22732/09, also
  supported the judgment of the High Court and urged that this
  was not a case where any of the candidates, who had the
  necessary qualifications, was rejected. On the other hand, it
                                                                   H
    960     SUPREME COURT REPORTS                 (2010] 9 S.C.R.


A would appear that their cases were deferred in order to
  accommodate those diploma-holders who were waifing from
  previous batches for appointment in the vacancies occurring
  from time to time. He too submitted that the impugned order
  of the High Court did not merit any interference and the Special
B Leave Petitions filed by the State of U.P. were liable to be
  dismissed.

       29. The submissions made by Mr. Rao, Mr. Choudhary
  and Mr. Giri were reiterated by Mr. Shree Pal Singh appearing
  in SLP(C)No.20558/09. He, however, added that the Rules of
C 2000 and 2003 would have to be read in harmony with the Rules
  of 1980, which had not been repealed by the subsequent Rules
  and continued to be in existence.

       30. Mr. Kailash Vasudev and Mr. P.S. Narasimhan,
D learned Senior Advocates, appearing for some of the
  Respondents in two of the Special Leave Petitions, reiterated
  Mr. Rao's submissions that the practice which had been
  followed since 1980, could not be discarded, till all those who
  were to be benefitted under the said Rules had been duly
E accommodated. In fact, it was submitted that there was no
  provision which prevented the State Government from following
  such practice merely because of the intervention of the 2000
  and 2003 Rules.

       31. We have carefully considered the submissions made
F on behalf of the respective parties, having particular regard to
  the fact that a practice which had been consistently followed
  and had deprived some of the diploma-holders in Pharmacy
  earlier, is now being discarded against them to deprive them
  of an opportunity of employment. Although, an attempt has
G been made by Ms. Shobha Dikshit to justify the action of the
  State authorities, in the face of apparent injustice caused to the
  private Respondents in these Special Leave Petitions, we are
  unable to accept her contentions. In our view, the learned Single
  Judge while deciding the various writ petitions filed by the
H private Respondents herein and allowing the benefit of
   STATE OF U.P. AND ANR. v. SANTOSH KUMAR                    961
      MISHRA AND ANR. [ALTAMAS KABIR, J.]

relaxation of age, erred in directing that the selections of even     A
the said Respondents were to be made strictly on the criteria
of merit, irrespective of the batch in which the incumbents had
obtained their diplomas in Pharmacy. The said error was rightly
corrected by the Division Bench in the Special Appeals, which
had been filed, which is reflected in the extract of the impugned     B
judgment set out hereinbefore. The Division Bench quite rightly
held that the injustice caused to the private Respondents on
account of the interpretation of the Rule to their disadvantage
at a subsequent stage by the State Government, required to
be corrected.                                                         c
     32. It is on account of a deliberate decision taken by the
State Government that the private Respondents were left out
of the zone of consideration •for appointment as Pharmacists
in order to accommodate those who had obtained their
diplomas earlier. The decision taken by the State Government          D
at that time to accommodate the diploma-holders in batches
against their respective years can no doubt be discontinued at
a later stage, but not to the disadvantage of those who had
been deprived of an opportunity of being appointed by virtue
of the same Rules. In our view, the same decision which was           E
taken to deprive the private Respondents from being appointed,
could not now be discarded, once again to their disadvantage
to prevent them from being appointed, introducing the concept
of merit selection at a later stage. The same may be introduced
after the private Respondents and those similarly-situated            F
persons have been accommodated.

     33. The various decisions cited by Ms. Dikshit are of little
help to the case of the Petitioners. The facts in the case of Suraj
Prakash Gupta & Ors. (supra) bear no comparison to the facts          G
at issue in these Special Leave Petitions. There can be no
divergence of opinion with regard to the principles of law laid
down in the said decision, but the same was referred to in the
facts of that case, where it was held that in the absence of any
provision for rotation in the Rules, the same could not be            H
     962      SUPREME COURT REPORTS                [2010] 9 S.C.R.


· A claimed on the basis of the past practice. As indicated
    hereinbefore, in this case a certain set of Rules were applied
    in a manner which deprived the private Respondents of an
    opportunity to be considered for appointment as Pharmacists,
    despite having acquired the requisite qualification and being
  B deprived of appointment once again by discarding the same
    Rules to their detriment. In our view, the decision in N. Suresh
    Nathan &Anr. (supra) is more apposite to the facts of this case.
    Of course, this is not a case for applying the "doctrine of past
    practice" alone, in addition, this is a case which involves the
  c deprivation of certain candidates by application of the
    procedure differently at two different points of time.

        34. We, therefore, are of the view that in the facts of this
   case no interference is called for with the decision of the
   Division Bench of the High Court impugned in these SLPs. The
 D 12 Special Leave Petitions filed by the State of U.P., being
   S.L.P. Nos. 20558, 20769, 20774, 20785, 20901, 20908,
   22655, 22678, 22732, 22749, 22851, 22955 of 2009, along
   with S.L.P.(C) Nos. 25647 and 25649 of 2009, filed by Vaibhav
   Kumar Singh and Ors. and Brijesh Kumar Sharma and others,
 E whose cases are similar to that of the State of U.P., are
   dismissed, but without any order as to costs. Special Leave
   Petition (C) Nos. 22114 of 2009 and 32977 of 2009 filed by
   Ajay Singh and others and Shravan Kumar Pandey and others,
   stand allowed. The petitioners therein shall be entitled to the
 F same benefits as those Diploma holders governed by the 1980
   Rules, having obtained their Diplomas in Pharmacy prior to
   1998. There will be no order as to costs in these S.L.Ps also.

     B.B.B.                  Special Leave Petitions disposed of.