Vinod Kumar Dhiman vs Principal Secretary, Medical Health And Family Welfare And Others

Ramesh Ranganathan, CJ

Application for Leave to Appeal No. 5604 of 2019 :

The applicant herein is not a party to the writ petition. He has preferred this appeal, along with an application seeking leave to do so, contending that he is a Pharmacist, and the selection process undertaken to fill up the posts of Pharmacists, pursuant to the advertisement issued on 26.07.2016 by the Director General Medical Health and Family Welfare, Uttarakhand, is contrary to law. We see no reason, therefore, to deny him leave to appeal. The application seeking leave to appeal is, accordingly, ordered.

Special Appeal No. 441 of 2019 :

This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No. 551 of 2019 dated 28.03.2019. The third respondent, in this appeal, filed the said Writ Petition complaining that though the process of selection commenced, pursuant to the advertisement issued on 26.07.2016 by the Director General Medical Health and Family Welfare, Uttarakhand, to fill up the posts of Pharmacist in Family Welfare Sub Centres, the said selection process has not been completed so far.

In the order under appeal, the learned Single Judge noted that 600 vacancies were advertised for which more than 10,000 candidates had submitted their applications along with the prescribed fee of Rs. 1000/-; and the third respondent-writ petitioner had sought a direction to the competent authority to complete the selection process as expeditiously as possible, and to declare the result within six months. The learned Single Judge, thereafter, noted the submission of the learned Deputy Advocate General that the Central Government had laid down certain guidelines known as the Indian Public Health Standard, which are followed by all the States; the post of Pharmacist does not exist in the said guidelines; and the matter is pending consideration before the State Government as to whether or not appointment should be made to the posts of Pharmacist in the Family Welfare Sub Centres.

The learned Single Judge opined that, since the selection process was initiated way-back in the year 2016 and nearly three years had elapsed, it was expected that the State Government should take a decision at the earliest. The Writ Petition was disposed of directing the Principal Secretary, Medical Health and Family Welfare, Government of Uttarakhand to examine the matter, and take an appropriate decision within three months. The learned Single Judge further opined that, if the State Government is of the opinion that the services of the Pharmacist are needed in the Family Welfare Sub Centres, then appointment orders, to the selected candidates, should be issued within three months thereafter.

Mr. Tapan Singh, learned counsel appearing on behalf of the appellant, would submit that the advertisement issued on 26.07.2016, by the Director General Medical Health and Family Welfare, Uttarakhand to fill up the posts of Pharmacist in Family Welfare Sub Centres, falls foul of the Uttar Pradesh Pharmacist Service Rules, 1980, more particularly Rule 15 thereof; Rule 15(2) of the said Rules was substituted by the notification dated 12.01.2006; a Government Order was issued in the year 2018 prohibiting sanctioned posts to be filled up on contractual basis, and required such posts to be filled up only on a regular basis; and the mandamus issued by the learned Single Judge, directing that the posts be filled up by appointing the selected candidates, falls foul of the Rules and the Government Order(s) issued in this regard.

On the other hand Mr. Paresh Tripathi, learned Chief Standing Counsel appearing on behalf of the State Government, would submit that the Rules, on which the appellant places reliance upon, are applicable only to Hospitals and Main Centres; posts, in the Family Welfare Sub Centres, have been created only as a stop-gap arrangement since the posts of Pharmacist have not yet been created for these Sub Centres; and the posts of Pharmacist at these Sub Centres are not governed by the Rules, and are required to be filled up from among those who hold a Diploma in Pharmacy.

In the order under appeal, the learned Single Judge has only directed the State Government to take a decision as to whether or not to fill up the posts of Pharmacist in the Family Welfare Sub Centres within a period of three months; and it is only in case the State Government decides that the services of Pharmacists are needed in the Family Welfare Sub-Centres, are appointment orders required to be issued within three months thereafter to the selected candidates.

Under the guise of challenging the order passed by the learned Single Judge, the appellant has, in effect, questioned the very advertisement issued in the year 2016. The present appeal is preferred against the order passed by the learned Single Judge in a Writ Petition, wherein the third respondent-writ petitioner had sought a direction that the selection process, undertaken pursuant to the advertisement issued on 26.07.2016, be completed.

While the State Government is, undoubtedly, required to comply with the Rules/Government Orders in force while making any appointments, the question whether the 1980 Rules and the Government Orders would apply for appointment of Pharmacists, in Family Welfare Sub Centres, is again a matter for the State Government to consider in the first instance. It would be wholly inappropriate for this Court to undertake a detailed examination on this question in an appeal preferred against the order passed by the learned Single Judge where the validity of the advertisement itself was not put in issue.

Any grievance, which the appellant may have had with the selection process undertaken by the State Government, in seeking to appoint 600 Pharmacists in various Family Welfare Sub Centres in the State, could only have been agitated in duly constituted writ proceedings, and not in an appeal against the order of the learned Single Judge passed in a writ petition preferred by the third respondent-writ petitioner seeking filling up of the posts of Pharmacist pursuant to the advertisement dated 26.07.2016.

While we see no reason to interfere with the order under appeal, we make it clear that appointment to the posts of Pharmacist in the Family Welfare Sub Centres shall be made strictly in terms of the order under appeal, and in accordance with law.

Subject to the aforesaid observations, the Special Appeal fails and is, accordingly, dismissed. No costs.