Yogesh Kumar Sharma vs State Of U.P.

Narayan Shukla, J.

C.M. Application No. 60253 (W) of 2014

Heard Mr. S.K. Kalia, learned Senior Advocate assisted by Mr. Ankit Pandey learned counsel for the petitioner as well as Dr. L.P. Mishra, learned counsel for the applicants and learned Chief Standing Counsel.

The petitioners are diploma holders of Ayurvedic Pharmacist and they are registered with the Board of Indian Medicine U.P. between the year 1985-1994. The Board has issued a list of eligible candidates for the purpose of counseling for appointment on the post of Ayurvedic Pharmacist. The counseling has commenced since 07th July 2014. They have assailed the aforesaid list as it does not contain their names, whereas they are waiting for their appointment since long.

The learned counsel for the respondents submits that an advertisement for appointment on the post of Ayurvedic Pharmacist have been issued pursuant to the order passed by this Court in Writ Petition No. 1962 (SS) of 2007 and other connected matters. This Court in the said writ petition has provided that the opposite parties shall extend the benefit of the judgment and order dated 04.05.2009 passed in Special Appeal No. 377 of 2008 to the present petitioners.

In the Special Appeal No. 377 of 2008 and other connected Special Appeals, the Division Bench of this Court issued directives to the effect that the appellants cases shall be considered in accordance with the pre-existing practice by considering their appointment on the post of their merit taking their batches into consideration as was being done earlier, but this process could be available only for the appellants and they will be accommodated, if they are otherwise found eligible and the remaining vacancies would be filled in by the following Rule 15(2) strictly as directed by the learned Single Judge. Therefore, it is stated that this proceeding of selection is restricted only for the petitioners of those writ petitions as well as the appellants of the aforesaid appeals.

In reply Mr. S.K. Kalia, learned Senior Advocate drew attention of this Court towards the U.P. Ayurvedic and Yunani Pharmacist Services (2nd Amendment Rules, 2013) and submitted that it provides the selection on the basis of the merit achieved by the candidates on the basis of diploma year wise seniority. He further drew attention of this Court towards the judgment of the Hon''ble Supreme Court rendered in the case of State of U.P. and another Vs. Santosh Kumar Mishra and another SLP (C) Nos. 20558 of 2009. Though this matter relates to the Alopathic Pharmacist. Yet he submitted that analogy of preparing the list of diploma holders year wise has been recognized by the Hon''ble Supreme Court. He further placed another decision of the Hon''ble Supreme Court rendered in the case of Deepak Agarwal and Another Vs. State of Uttar Pradesh and Others, The relevant paragraph 26 is extracted below.

It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the "rule in force" on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah''s case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it can not be accepted that any accrued or vested right of the appellants have been taken away by the amendment

In the light of the aforesaid observations of the Hon''ble Supreme Court, he submitted that the Rules prevalent on the date of selection shall be enforceable and as per amendment Rules, 2013 the petitioners are entitled for selection. Therefore, they cannot be debarred from counseling.

After considering the rival submissions of the learned counsel for the parties, I am of the view that the matter requires deep consideration of this Court. Therefore, I hereby grant two weeks time to the respondents to file counter affidavit, matter be listed thereafter, since the counseling has commenced, keeping in view the prevalent rules as well as the decisions of the Hon''ble Supreme Court as above, prima-facie, I am of the view that the petitioners are entitled to appear in the counseling.

Accordingly direction is issued to the respondents to permit them to appear in the counseling''s, however, the same shall be subject to further order of this Court.

Interim relief application stands disposed of.