Ashwani Kumar Mishra, J. - (1.) Petitioners, who are 18 in numbers, have pressed their writ petition with reference to the following prayer:- "(iii) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to prepare the list afresh in pursuance of the advertisement dated 12.11.2007 strictly in accordance with the judgment of the Hon'ble Supreme Court in the case of State of U.P. & Another vs. Santosh Kumar Mishra & Another, 2010 9 SCC 52 as well as the stand of the State Government in the supplementary affidavit dated 11.4.2016 filed in Writ Petition No.2772 (SS) of 2016 including the names of the petitioners after treating them to be belonging to 2002 Batch of Pharmacy Diploma Holders."
(2.) Selection and appointment to the post of Pharmacist in the State of U.P. was governed by the provisions of U.P. Pharmacist Service Rules, 1980 (hereinafter referred to as the "1980 Rules"). These rules were substituted by a fresh set of rules in 2002, which got amended by the Rules of 2003. On 12.11.2007, 766 vacancies of pharmacist were advertised for being filled up by the diploma holders in accordance with the U.P. Procedure For Direct Recruitment on Group 'C' Post (Outside the Purview of U.P. Public Service Commission) Rules, 2000. A grievance was raised by filing writ petition by persons, who had passed diploma course in pharmacy from different institutions recognized by Pharmacy Council of India, and registered with the State Pharmacy Council U.P., contending that by virtue of rule 15(2) of the 1980 Rules, the diploma holders were required to be appointed against the vacancies, which became available in each recruitment year, by first appointing pharmacists, who had obtained their diploma earlier, irrespective of their merits. Contention was that till diploma holders belonging to earlier batches are considered and given appointments against such vacancies, the diploma holders of subsequent batches should not be given appointment. The Writ Petition No.7699 (SS) of 2007 came to be decided by learned Single Judge of this Court on 23.5.2008, granting relaxation in age but directing recruitment to be made as per Rules of 2002. Claim for being selected and appointed in terms of 1980 Rules was rejected. A direction was issued that selection be made strictly on the criteria of merit, irrespective of the batch in which the incumbent obtained pharmacy diploma. The judgment of learned Single Judge was carried in Special Appeal No.377 of 2008, which came to be allowed by the Division Bench on 4.5.2009 in following terms:- "We, therefore, dispose of these special appeals with the direction that the appellants' cases shall be considered in accordance with the pre-existing practice by considering their appointment on the basis of their merit taking their batches into consideration as was being done earlier but this process would be available only for the appellants and they would be accommodated if they are otherwise found eligible and the remaining vacancies would be filled in by following Rule 15 (2) strictly as directed by the learned Single Judge. At this juncture, Dr. L.P. Misra placed before the Court U.P. Lok Seva (Bharti Ke Liye Aayu Seema Ka Shithilikaran) Niyamawali, 1992, in support of his submission that the appellants are entitled to be given the age relaxation. We without entering into this question in detail, do observe that the age relaxation be given to the appellants as per rules, if they have crossed the age limit for the reason that right from the year 1998, no selection has been made and in certain cases, age relaxation has been granted. The selection process be completed within three months from the date of receipt of a certified copy of this order. All the special appeals are disposed of accordingly."
(3.) The State Government filed Special Leave Petition before the Apex Court, which came to be decided on 3.8.2010 in State of U.P. vs. Santosh Kumar Mishra, 2010 9 SCC 52. The Special Leave Petitions were dismissed with following observations made in para 40 and 41:- "40.In our view, the learned Single Judge while deciding the various writ petitions filed by the private Respondents herein and allowing the benefit of relaxation of age, 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 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 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. 41. 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 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 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 persons have been accommodated.";