IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION(C) No.20558 of 2009

STATE OF U.P. & ANR.                  … Petitioners Vs.

SANTOSH KUMAR MISHRA & ANR.    … Respondents

WITH

SLP(C)NOS.20769, 20774, 20785, 20901, 20908, 22114,  22655, 22678, 22732, 22749, 22851, 22955, 25647,  25649 & 32977 of 2009

J U D G M E N T

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 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  relate  some  of  the  relevant  

facts of these cases.   

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 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  became  

available  in  each  recruitment  year  by  first  

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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  appointment  to  those  

Pharmacists according to the dates on which they  

had obtained their diplomas, irrespective of their  

merit.  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  

batches  should  not  be  given  appointment,  

irrespective of their merit.

5. The aforesaid controversy was triggered by an  

advertisement dated 12th November, 2007, whereby 766  

vacancies were advertised for being filled up by  

diploma holders.  The advertisement provided that  

the recruitment would be made in accordance with  

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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.  

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 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  those  of  some  of  the  

diploma holders, who had obtained diploma prior in  

point of time, the latter candidates were to be  

given  appointment  first.   As  a  result,  those  

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diploma holders, who had obtained diploma before  

the  Respondents,  were  adjusted  against  the  

vacancies first, irrespective of their merit vis-à-

vis the diploma holders of subsequent batches and  

the  said  practice  was  continued  till  2002.  

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.  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  situated  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.

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7. Questioning  the  said  discriminatory  and  

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 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  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 were held to be intra  

vires.   Considering  the  same,  the  Petitioners  

herein were competent to issue the advertisement  

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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-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 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.   

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  

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in the following words :

“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, 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 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 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 accordance with pre-existing  

practice by considering their appointment on the  

basis  of  their  merit  taking  their  objects  into  

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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 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  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 provides for the  

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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,  

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, 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 III posts which were outside  

the purview of the Public Service Commission, such  

as Pharmacists, Lab. Technicians, ECG Technicians,  

etc.   She  submitted  that  the  last  advertisement  

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dated  11th February,  2007  was  a  composite  

advertisement  inviting  applications  from  all  

paramedical  trades  such  as  Pharmacists,  Lab.  

Technicians,  X-ray  Technicians,  Physiotherapists  

and ECG Technicians and selections had 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  

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 it very clear that only the merit of the  

eligible candidates was required to be judged on  

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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  Pharmacy  are  taken  into  

consideration for determining merit.  The method  

adopted for allocating certain percentage of marks  

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 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 to adjudge the merits of the candidates  

on  the  basis  of  the  technical  qualifications  

uniformly throughout the State so as to maintain  

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efficiency in Government service.

14. Ms.  Dikshit  submitted  that  the  observations  

made to 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 selections to be  

made  for  appointment  to  the  post  of  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.

15. Ms. Dikshit also urged that the tenor of the  

impugned  judgment  gives  the  impression  that  the  

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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  

from previous batches had been left out.  However,  

having regard to the decision of the 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  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. 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  capable  of  being  accepted.  

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According to Ms. Dikshit, such an action would be  

contrary  to  the  1980  Rules  and  the  established  

service jurisprudence.  She 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  the  procedure  

prescribed, and, on the other hand, selection would  

have to take place as per the 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.   

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  

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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 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  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 consideration  

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  

irrespective of their merit.  Ms. Dikshit concluded  

on  the  note  that  if  the  State  Government  had  

interpreted the rule in question otherwise and had  

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adopted  a  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 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  

obtained  their  diplomas  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  

Appeal Court, was liable to be set aside.

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18. In support of her aforesaid submissions, Ms.  

Dikshit 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 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 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  

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special  provision  was  enacted  relating  to  

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 Kerala &  

Anr. [2010 (2) SCALE 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 subsequent 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  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 to  

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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  the  enacted  rules  which  would  

prevail and the practice as followed so far would  

have 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 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 Court went on to  

hold that in the absence of any provision for rota  

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in the rules, the same could not be claimed on the  

basis of past practice.  Ms. Dikshit submitted that  

since in the 2003 Rules 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  

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 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  

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  

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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 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 accommodated first, and were being  

denied  appointment  on  the  basis  that  such  

appointment could not be made batch-wise, 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 category and upto 1997 the reserve category  

had been cleared.  However, the Respondents were  

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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  

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 followed for a  

long time prior to the promulgation of 2003 Rules.  

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  

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  

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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 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  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  

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  

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said department.   

24. Reference was also made to another decision in  

Shailendra  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  

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 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  

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rules.  In such a situation, this Court held that  

the rules should be interpreted in 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).     

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  

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  

26

obtained their diplomas prior to 1998, was liable  

to be 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.22749/09.   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  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,  

appearing for some of the Respondents in SLP(C)No.  

27

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 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 to the detriment of those  

candidates  who  were  available  for  appointment  

according  to  the  said  Rules,  but  were  not  

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. Verma, learned counsel, who appeared  

for the private Respondents in SLP(C)No.22732/09,  

also supported the judgment of the High Court and  

28

urged that this was not a case where any of the  

candidates, who had the necessary qualifications,  

was rejected.  On the other hand, it would appear  

that  their  cases  were  deferred  in  order  to  

accommodate those diploma-holders who were waiting  

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  

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 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.

29

30. Mr. Kailash Vasudev and Mr. P.S. Narasimhan,  

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 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 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 been made by Ms. Shobha Dikshit to justify the  

30

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  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.

31

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 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  

32

Respondents  and  those  similarly-situated  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 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  

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  deprived  of  appointment  once  again  by  

33

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 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 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, whose cases are similar to  

that  of  the  State  of  U.P.,  are  dismissed,  but  

34

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 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.  

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (S.S. NIJJAR)

New Delhi Dated: August 03, 2010.

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