Vikram Nath, J. - (1.) WRIT Petition No. 31375 of 2003 has been filed with the following prayer: (i) issue a writ, order or direction in the nature of Mandamus directing the Respondents to initiate selection process to fill -up the post of Pharmacist in pursuance of the Advertisement No. 18A -90/99 dated 2.10.2000 published in Vividh Rozgar Darshan, Lucknow , within some specific period as soon as possible. (ii) issue a writ, order or direction as this Hon'ble Court may deem fit and proper unde the circumstances of the facts of the case. (iii)Award the cost of the petition to the petitioners.
(2.) IN the said writ petition initially an order was passed on 28.07.2009 whereby this Court prima facie found a case for stay of entire selection but did not pass any interim order, however directed the learned Standing Counsel to obtain instructions with regard to the recruitment process initiated by advertisement dated 2.10.2000. The order dated 28.07.2003 is quoted below It is contended that without completing the selection process for 500 vacant posts of Pharmacist in Ayurvedic Medicine and 50 posts of Pharmacist in Unani (including reserved category), advertised on 2.10.2000, the department had advertised on 14.5.2003 inviting applications for 319 vacancies only of Scheduled Caste/Scheduled Tribes. It is further contended that filling of back log vacancies is not permissible under Section 3(2) of U.P. Public Service (Reservation for Scheduled Caste, Scheduled Tribes and other Back Castes) Act, 1994, unless they have been offered earlier and that inviting applications to till up only back log vacancies amounts to hundred per cent reservation of vacancies in the current recruitment year and violates petitioners' rights under Articles 14 and 16 of the Constitution of India. The action, it is alleged, causes reverse discrimination to the general category candidates. Counsel for petitioners has relied upon a Division Bench decision of this Court in Dr. Shashi Kant Rai vs. State of U.P. and others in writ petition No. 30542 of 1996 dated 20.5.1998, in which in similar situation, this Court held that filling up of only back log vacancies, which were not advertised earlier, amounts to hundred per cent reservation and discriminates other candidates and violates equity. A Special Leave to Appeal No. 14567 of 1998 against the said judgment was dismissed by Supreme Court on 11.9.1998. Prima facie, petitioners have made out a case for stay of entire selection. Let learned Standing Counsel seek instructions with regard to the recruitment process initiated by advertisement dated 2.10.2000. Put up on Monday i.e. 4.8.2003. Thereafter on 5.8.2003 the Court proceeded to pass an interim order staying the entire selection process in pursuance of the advertisement dated 14.05.2003 for filling up post of Pharmacist by way of special recruitment drive of so called vacancies of Scheduled Caste/Scheduled Tribe candidates. The said order dated 5.8.2003 is reproduced below: Inspite of time granted to learned Standing Counsel and accommodating him for today, no instructions are forthcoming. Leaned Standing Counsel is granted three weeks time to file counter affidavit. List on 9th September, 2003. I am, prima facie, satisfied with the submission made by counsel for petitioner, which have been recorded in my order dated 28.7.2003 that the advertisement inviting applications only from Scheduled Caste/Scheduled Tribes candidates, leaving general posts, amount to hundred percent reservation in the recruitment year. Further I also find that the subject vacancies were never offered for recruitment in any of the previous years and thus these cannot be taken to be back log vacancies to be filled up by way of special recruitment drive under section 3(2) of U.P. Public Service (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward Castes) Act, 1994. Until further orders, the entire selection process in pursuance of the advertisement dated 14.05.03 for selection for the post of Pharmacists Ayurvedic /Pharmacists Unani by way of subject recruitment drive to fill up the so called back log vacancies for Scheduled Castes/Scheduled Tribes candidates, shall remain stayed.
(3.) ACCORDING to the learned counsel for the petitioner despite the said interim injunction granted by this Court on 5.8.2003 the State respondents continued with the selection pursuance to the advertisement dated 14.05.03 and have since made the appointment also.;