Supreme Court of India
DONESH RAJPUT & ORS.versusPRADEEP KUMAR SHUKLA & ORS.
- Citation
- [2014] 10 S.C.R. 617
- Decided
- 23 September 2014
- Disposal
- Disposed off
Holding
Only candidates who applied in response to the 12‑Nov‑2007 advertisement and satisfied Rules 14 and 15 of the Uttar Pradesh Pharmacists Service Rules, 1980, are entitled to the benefit of being "similarly placed"; the State must verify the actual vacancy count and fill the posts accordingly, and the contempt petition is dismissed.
Summary
The Supreme Court examined applications filed by the State of Uttar Pradesh seeking clarification on the number of pharmacist vacancies and the eligibility of candidates who had not applied to the 2007 advertisement. The Court reiterated its earlier decision in State of Uttar Pradesh v. Santosh Kumar Mishra that the benefit of being "similarly placed" applies only to those who responded to the 12‑Nov‑2007 advertisement and complied with Rules 14 and 15 of the Uttar Pradesh Pharmacists Service Rules, 1980. It held that the list of 360 candidates presented by the Principal Secretary did not consist of actual applicants and therefore could not be treated as similarly placed. The Court directed the Principal Secretary to recall his order of 27‑Sept‑2013, verify the correct vacancy figure, and fill the vacancies in accordance with the 2010 judgment. The contempt petition alleging failure to fill vacancies was dismissed, and all interlocutory applications and contempt petitions were disposed.
Issues considered
- The applicability of the "similarly placed" principle to candidates who did not apply to the 2007 advertisement.
- Whether the vacancy figure of 950 reported by the Principal Secretary is correct.
- Whether the State can be held in contempt for alleged non‑compliance with the Santosh Kumar Mishra judgment.
Legislation cited
Subjects
appointmentvacancy verificationsimilarly placedcontemptrecruitment rulesUttar Pradeshpharmacist recruitment
Judgment
[2014] 10 S.C.R. 617
DONESH RAJPUT & ORS. A
v.
PRADEEP KUMAR SHUKLA & ORS.
I.A. NOS.4-5 OF 2013, I.A. NOS.5-6 OF 2014
IN
CONTEMPT PETITION (C) N0.269 OF 2012 B
IN
SLP (C) N0.20558 OF 2009
SEPTEMBER 23, 2014
[FAKKIR MOHAMED IBRAHIM KALIFULLA AND C
SHIVA KIRTI SINGH, JJ.)
Uttar Pradesh Pharmacists Service Rules, 1980: rr. 15,
16 - Appointment - Post of Pharmacist - Direction passed
in Santosh Kumar Mishra case that benefit for appointment D
for the post of Pharmacist should be extended to similarly
placed persons - This implied that those who responded to
the advertisement invited for filling up the post of
Pharmacists, were to be considered only by following the
procedure prescribed u!rr. 14 and 15 of the Rules - Without E
following the relevant Rules and the requirements contained
in the advertisement, no candidate can be considered for
appointment - If they had not responded to the said
advertisement by filing the appropriate applications, they
cannot subsequently be heard to say that they were all F
similarly placed and that therefore, the State Government
should consider them as similarly placed candidates.
Disposing of the IAs and contempt petitions, the
Court
G
HELD: 1. In the letter issued by Principal Secretary,
Law dated 29.4.2013, a tabular statement was shown
wherein the total number of posts of Pharmacists in the
State of Uttar Pradesh in the year 2000 after the division
617 H
618 SUPREME COURT REPORTS [2014] 10 S.C.R.
A of the State, total sanctioned posts from 1998 to 2013,
total posts on which the Pharmacist were working in the
State of Uttar Pradesh in the year 2000 after the division
of the State, the number of vacant posts resulting due to
promotions and retirements from the year 1998 to 2013,
B actual number of posts on which Pharmacists were
working in the State, the number of newly appointed
Pharmacists, total number of posts on which the
pharmacists were working up to the year 2013 and the
total number of vacant posts available were disclosed.
c After furnishing the relevant data for the various
categories, the letter dated 27.9.2013 stated that the total
number of vacant posts was 950. The instant I.A. was filed
by the State Government seeking direction to the
Principal Secretary, Law to recall his order dated
27 .9.2013 and pass appropriate order to declare the
0
correct number of vacancies available for the post of
Pharmacist as the number of vacancies arrived at 950 in
the report of the Principal Secretary dated 27.9.2013, did
not reflect the correct figure as the said figure came to
be arrived at by the Principal Secretary based on the
E information furnished by the then Director who failed to
gather the total number of vacancies in the Department
from all the Districts with the matching information
available at the Headquarters and, therefore, it required
reconsideration. It was also stated that the said Director
F was proceeded against by way of disciplinary action for
furnishing wrong information to the Principal Secretary.
Since the State of Uttar Pradesh came forward with valid
reasons as to why the number of vacancies mentioned
in the report of the Principal Secretary did not reflect the
G correct position, the State should, be allowed to verify the
available vacancies. Granting such permission would
also benefit the aspiring applicants for whom the benefit
has been conferred in the judgment of this Court in
Santosh Kumar Mishra. Therefore, the Principal Secretary
H is directed to recall his order dated 27.9.2013, insofar as
DONESH RAJPUT v. PRADEEP KUMAR SHUKLA 619
it related to the ascertainment of the number of vacancies. A
[Paras 11, 16 to 19] [630-F-H; 631-A, 8, E-H]
2. In another I.A., the prayer was for clarification/
modification of order dated 15. 7 .2014, passed in
Contempt Petition which stated that the existing
B
vacancies shall be filled by the State Government from
those candidates whose application forms were received
by the Department pursuant to the advertisement of the
year 2007 and who were found to be eligible. The said
report came to be submitted in compliance of order dated
29.4.2013, wherein while considering the grievances of C
the various Contempt Petitioners which was referred to
in order dated 29.4.2013, those petitioners were directed
to appear before the Principal Secretary and state their
claims with a further direction to the Principal Secretary
to resolve their disputes. In compliance of the said D
direction, it was reported by the State of Uttar Pradesh
that according to the Principal Secretary, the number of
candidates were 360, but when the grievances were
examined, it came to light that many of those persons
never applied and several others who claimed to have E
applied on verification, it was found that there was no
such application on.record. [Paras 20, 21] [632-C-D, F-H;
633-A]
3. When this Court held in Santosh Kumar Mishra F
that the benefit should be extended to similarly placed
persons who were to be accommodated, what it really
meant to state was that those who responded to the
advertisement made on 12.11.2007, by which applications
were called for filling up the post of 765 vacancies of
Pharmacists, were to be considered only by following the G
procedure prescribed under Rules 14 and 15 of the Rules
of 1980. Certainly, without following the relevant Rules,
namely, 14 and 15 and ignoring the requirements
contained in the advertisement dated 12.11.2007, no
H
620 SUPREME COURT REPORTS [2014] 10 S.C.R.
A candidate can be considered for being appointed to the
post of Pharmacist. In other words, for a person to claim
himself to be similarly placed, primarily they should have
applied in response to the advertisement. If they had not
responded to the said advertisement by filing the
B appropriate applications, they cannot subsequently be
heard to say that they were all similarly placed and that
therefore, the State of Uttar Pradesh should consider
them as similarly placed candidates like that of the private
respondents in the SLP, for being considered for the post
C of Pharmacists, merely because they belonged to some
of the batches of 1998 to 2002. Such a claim made on
behalf of any of the candidates, much less the 360
candidates who staked their claim before the Principal
Secretary cannot, therefore, be countenanced. The
Principal Secretary, having now reported in his report
0
dated 27.9.2013 that none of the 360 candidates were the
applicants, there is no scope for treating them as similarly
placed persons as held in Santosh Kumar Mishra.
Consequently, their claim now raised cannot also be
acceded to. Neither the above 360 persons referred to in
E the report of Principal Secretary dated 27.09.2013 or any
other candidate who did not apply in response to the
advertisement claiming himself to be a member of the
batch 1998 to 2002, can seek for consideration of his
claim at par with the private respondents in Santosh
F Kumar Mishra in order to consider his claim for
conferring the benefit granted in the said judgment.
[paras 26, 27] [638-F-H; 639-A-F]
4. In the Contempt Petition filed by some of the
G candidates of the year 2002, it was alleged that in spite
of the judgment of this Court in. Santosh Kumar Mishra,
as well as, subsequent orders passed in various
Contempt Petitions including the order dated 29.04.2013,
the respondent State has failed to fill up the vacancies
H and, therefore, they are liable to be proceeded against for .
DONESH RAJPUT v. PRADEEP KUMAR SHUKLA · 621
contempt of judgment in Santosh Kumar Mishra. In the A
light of order passed in I.A., the allegation of contempt
made in Contempt Petition cannot survive. The State of
Uttar Pradesh is directed to conclude the process of
ascertainment of vacancies and fill up the remaining
vacancies in accordance with the judgment in Santosh s
Kumar Mishra. [paras 28 to 30] [639-G-H; 640-A-D]
State of Uttar Pradesh and Anr. v. Santosh Kumar Mishra
and Anr. 2010 (9) SCC 52: 2010 (9) SCR 942 - referred to.
Case Law Reference: c
2010 (9) SCR 942 referred to Paras 3, 4, 7, 8,
14, ' 18, ' 22, '
23, 26, 27' 28,
30
D
CIVIL AP PELLATE JURISDICTION : I.A. Nos.4-5 of 2013,
I.A. Nos.5-6 of 2014.
IN
Contempt Petition (C) No.269 of 2012 E
IN
SLP (C) No.20558 of 2009
From the Judgment and Order dated 04.05.2009 in SA F
No. 388 of 2008 of the High Court of Judicature at Allahabad
at Lucknow.
WITH
G
I.A. Nos. 1 & 2 in CONMT. PET. (C) No. 115 of 2014 in SLP
(C ) No. 20558 of 2009
V. Giri, Dr. Rajeev Dhavan, lrshad Ahmed, AAG., Mukesh
K. Giri, Gunnam Venkateswara Rao, Venkata Raghuvamsy,
Siddharth Krishna Dwivedi, Saurabh Upadhyay, Dr. S.K. H
622 SUPREME COURT REPORTS [2014] 10 S.C.R.
A Verma, Aldanish Rein, Shamshranish Rein, Maheravish Rein,
Abhisth Kumar, Vivek Vishnoi, Pawan Kumar Shukla, Yash Pal
Dhingra, Pankaj Kumar Singh, K.L. Janjani, Ashutosh Lal, Dr.
Kailash Chand, Yatish Mohan, K. N. Tripathy for the appearing
parties.
B
The Judgment of the Court was delivered by
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. Before
adverting to the facts of this case, we make it clear that we
propose to pass orders only in the above I.A. Nos.4-5 of 2013
C and I.A. Nos.5 of 2014 in Contempt Petition(C) No.269/2012
and in I.A. Nos.1-2 in Contempt Petition(C) No.115/2014. All
other connected applications and contempt petitions when
listed on 14.2.2014, the following order came to be passed:
0 "l.A.No.5 (for direction) in Contempt Petition (Civil) No.269
of 2014 in Special Leave Petition (Civil) No.20558 of 2009
and Contempt Petition (Civil) No.115/2014
Issue Notice.
E Personal appearance of the alleged contemnors is
dispensed with for the present.
List the cases for final disposal on 25th March, 2014.
Rest of the matters
F
List all the contempt petitions along with applications for
orders after the decision in I.A. No.5 in Contempt Petition
(Civil) No.269 of 2012 in Special Leave Petition (Civil)
No.20558 of 2009 and Contempt Petition (Civil) No.115
G of 2014."
2. Therefore, in the first instance, we wish to dispose of
I.A. No.5 of 2014 in Contempt Petition(C) No.269/2012 along
with Contempt Petition(C) No.115/2014 and l.A.Nos.1-2 in that
H Contempt Petition and thereafter, pass appropriate orders in
the other connected applications, as well as, Contempt
DONESH RAJPUT v. PRADEEP KUMAR SHUKLA 623
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Petitions. l.A.No.5 of 2014 has been filed by the State of Uttar A
Pradesh with the following prayer:
"Issue direction to the Principal Secretary, Law, Govt. of
U.P. to recall his order dated 27.9.2013 and hear the
applicants (State of U.P.) after giving fresh notice to all the B
parties, and pass an appropriate order/declare the
Number of vacancies available on the post of
Pharmacists;"
3. In order to consider the prayer of the applicants, it is
necessary to briefly trace the background of this litigation which C
ultimately culminated in a judgment of this Court in State of
Uttar Pradesh and another v. Santosh Kumar Mishra and
another reported in 2010 (9) SCC 52. The issue pertains to
selection and appointment to the post of Pharmacist in the State
of Uttar Pradesh, which was earlier governed by the Uttar D
Pradesh Pharmacists Service Rules, 1980 (hereinafter referred
to as the "Rules of 1980"). The above Rules of 1980 came to
be replaced by the U.P. Procedure for Direct Recruitment of
Group 'C' Posts (Outside the Purview of Public Service
Commission) Rules, 2000 as amended by U.P. Procedure for E
Direct Recruitment of Group 'C' Posts (Outside the Purview of
Public Service Commission) (First Amendment) Rules, 2003.
There was an advertisement dated 12.11.2007 whereby 766
vacancies were advertised for being filled up by Pharmacy
diploma holders. There was a claim made by such diploma F
holders up to the year 2002 that their appointments were to be
made under the Rules of 1980, even as regards the 766
vacancies advertised in the year 2007. The issue went before
the learned Single Judge of the High Court of Allahabad and
the diploma holders on being aggrieved by the decision of the G
learned Single Judge, took it up by way of an appeal before
the Division Bench. The Division Bench summarized the issue
in the following words:
"9.xxxxxxxxxxx
H
624 SUPREME COURT REPORTS [2014) 10 S.C.R.
A 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
B 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
c 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
D 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."
4. This Court after noticing the above observations of the
E Division Bench in the judgment reported in Santosh Kumar
Mishra (supra) held as under in paragraph 41:
"41. It is on account of a deliberate decision taken by the
State Government that the private respondents were left
F 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
G 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
H
DONESH RAJPUT v. PRADEEP KUMAR SHUKLA 625
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
prevent them from being appointed, introducing the A
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."
(Underlining is ours)
B
5. Therefore, after the judgment of this Court referred to
above, two issues cropped up for consideration, which related
to the number of vacancies for the post of Pharmacist to be
filled up and who are all the candidates who were to be
considered as similarly placed persons like the private
respondents as has been noted in the above said paragraph C
41 who were to be accommodated in the available vacancies.
The said issue came to be examined by this Court in Contempt
Petition(C) No.347/2010 in SLP(C) No.20558/2009 along with
various other contempt petitions including Contempt Petition(C)
No.269/2012 in SLP(C) No.20558/2009 and in the said order D
dated 27.11.2012, after making a brief reference to the
complaint of the contempt petitioners, it was noted as under:
'The directions contained in our aforesaid judgment were
quite clear that we were treating those candidates, who E
had obtained diplomas in pharmacy prior to 2002, as one
·single group, and that it was also our intention that the
benefits which were to be given to the petitioners before
us were also to be given to similarly situated candidates."
(Underlying is ours) F
6. Thereafter, taking note of the undertaking on behalf of
the State of Uttar Pradesh, it was ultimately stated as under:
" ..... Mr. lrshad Ahmad has also submitted that the said G
undertaking given to the Court shall be duly implemented
within two months from date in keeping with the vacancies
available. However, this should not be interpreted to mean
that those who cannot be accommodated now will not be
accommodated prior to those candidates who come within
H
626 SUPREME COURT REPORTS [2014] 10 S.C.R.
A the zone of consideration by virtue of the Scheme of 2002.
The second part of the list, which has been submitted on
behalf of the State, shall not be given effect to, until these
directions have been complied with.
All the contempt petitions are disposed of accordingly".
B
7. After the passing of the said order dated 27.11.2012,
Contempt Petition(C) No. 73/2013 in Contempt Petition(C)
No.347/2010 came to be filed along with certain other co.ntempt
petitions. All those subsequent contempt petitions were
C disposed of by a common order dated 29.4.2013. In fact, it must
be stated that under the said order, two directions came to be
issued which, in our considered opinion, would clinch the whole
issue and whatever further exercise which is to be carried out
to comply with those directions can be issued in order to put
o an end to the controversy once and for all. This came to be dealt
with and sorted out by this Court in Santosh Kumar Mishra
(supra).
8. In the order of this Court dated 29.4.2013, after referring
to the nature of judgment rendered as reported in Santosh
E Kumar Mishra (supra) and after noting the grievances of the
various contempt petitioners, it was stated as under in
paragraphs 8 to 12:
"8. Since, it is not possible for us to decide the said
F dispute, we dispose of these petitions/applications for
interim directions, "Jy directing the Law Secretary in the
State Government to consider the number of vacancies
that may be available as against the number of candidates
still to be accommodated upto the year 2002. While doing
G so, he should take into consideration the claims made by
Mr. Donesh Rajput & Ors., (and in the matter of Uday
Pratap Singh, applicant) the applicants in contempt petition
No.269 of 2012, the claims of Shri Sachin Agarwal, the
applicant/petitioner in Contempt Petition No. 75 of 2013 in
H Contempt Petition No.65 of 2012, the claims of Harit
DONESH RAJPUT v. PRADEEP KUMAR SHUKLA 627
[FAKKIR MOHAMED IBRAHIM,.KALIFULLA, J.]
Kumar Dwivedi & Ors., the applicants in Contempt Petition A
No.347 of 2010 and Ravi Kant Dwivedi & Ors., the
applicants in Contempt Petition No.165 of 2013 in
Contempt Petition No.65 of 2012 in SLP (C) No.20774 of
2009.
B
9. In order to facilitate the hearing, before the Law
Secretary, the applicants in the above-mentioned matters,
shall meet the Law Secretary to fix a time when the
disputes can be taken up for resolution.
10. Once a determination is made by the Law Secretary C
of the State, the State will, thereafter, act thereupon to fill
up the vacancies, as may be declared.
11. Pending the hearing and disposal of these matters, the
vacancies which may have arisen, in the meantime, may 0
be filled up in the manner indicated in the judgment of this
Court dated 3rd August, 2010.
12. The petitions/applicants are disposed of, accordingly."
9. Before issuing the above directions, it was also noted E
that when the above Contempt Petitions were taken up on
15.04.2013, though there was a dispute as regards the number
of vacancies available, the State of Uttar Pradesh was allowed
to fill up 553 vacancies out of 695 applicants with a stipulation
that the remaining number would be accommodated in the F
succeeding years. It was indicated that the other objections with
regard to additional affidavit regarding number of vacancies
available would be taken up on a subsequent date and that is
how the Contempt Petitions were listed on 29.4.2013. Before
issuing the above directions, as contained in paragraphs 8 to G
12, the claim made on behalf of the Contempt Petitioners that
more than 2000 vacancies were available was referred to and
thereafter, the directions came to be issued. By virtue of the
above directions, contained in paragraphs 8 to 12, it was
incumbent upon the Law Secretary of the State Government to H
628 SUPREME COURT REPORTS [2014] 10 S.C.R.
A ascertain the number of vacancies that may be available as
against the number of candidates who were to be
accommodated up to the year 2002. While ascertaining the
number of candidates to be accommodated up to the year
2002, it was directed that the claim made by those individuals
B whose names were referred to in paragraph 8, the applicants
in Contempt Petition(C) No.269/2012, Contempt Petition(C)
No.75/2013 Contempt Petition(C) No.65/2012, Contempt
Petition(C) No.347/2012, Contempt Petition(C) No.165/2013
and Contempt Petition(C) No.65/2012 in SLP(C) No.20774/
c 2009, were permitted to approach the Law Secretary on a date
to be fixed, when the dispute relating to their claims could be
taken up for resolution.
10. The above order dated 29.4.2013, therefore, intended
to resolve the twin objective of ascertaining the available
D number of vacancies in which the candidates up to the year
2002 could be accommodated on the one hand and such of
those claimants who were before this Court by filing Contempt
Petitions whose claims required to be considered as to
whether they were lawfully eligible to be accommodated in the
E available vacancies in the category of 'similarly situated
persons' which was required to be ascertained and resolved
by the Law Secretary or the other.
11. Pursuant to the above direction in the order dated
F 29.4.2013, a communication was forwarded by the Principal
Secretary, Law, Government of Uttar Pradesh to the Principal
Secretary, Department of Medical Health and Family Welfare
on 27.9.2013. In the said letter, which is virtually a report as per
the directions of this Court dated 29.4.2013, a tabular
G statement was shown wherein the total number of posts of
Pharmacists in the State of Uttar Pradesh in the year 2000 after
the division of the State, total sanctioned posts from 1998 to
2013, total posts on which the Pharmacist were working in the
State of Uttar Pradesh in the year 2000 after the division of the
State, the number of vacant posts resulting due to promotions
H
DONESH RAJPUT v. PRADEEP KUMAR SHUKLA 629
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
· and retirements from the year 1998 to 2013, actual number of A
posts on which Pharmacists were working in the State, the
number of newly appointed Pharmacists, total number of posts
on which the pharmacists were working up to the year 2013
and the total number of vacant posts available were disclosed.
After furnishing the relevant data for the various categories, the B
letter dated 27.9.2013 stated that the total number of vacant
posts was 950.
12. The said letter though referred to the talks held with
some of the claimants and the nature of grievances expressed
by them, nothing was stated as to their entitlements. Thereafter, c
along with the said letter dated 27.9.2013, the Principal
Secretary, Law enclosed a copy of the representations of the
applicants as well as the list of applicants.
13. In the reply affidavit filed by the third respondent who D
is the Director General, Medical Health Services in the State
of Uttar Pradesh in Contempt Petition(C) No.115/2014, it has
been stated that the list which was forwarded by the Principal
Secretary, Law along with letter dated 27.9.2013, contained
names of 360 candidates and on verification it was found out E
that none of the 360 persons were the candidates who had
applied pursuant to the advertisement published in the year
2007. In paragraph 8 of the reply affidavit, it was stated that
the list provided by the Law Secretary consisting of 360
candidates in compliance of the order passed by this Court F
dated 29.4.2013, were persons who never applied or who
alleged to have applied but their application forms were not on
record.
14. In the above stated background, when these cases
were listed for hearing on 15.07.2014, while granting time for G
the respondents to file their objections to l.A.No.5/2014 within
four weeks, it was directed that when admittedly 448 vacancies
were available as on the date of filing of the application, in
l.A.No.5/2014 the claims of the applicants who were stated to
H
630 SUPREME COURT REPORTS [2014] 10 S.C.R.
A be more than 360 in number can be considered and
whomsoever was eligible to be appointed may be issued with
necessary orders of appointment in accordance with the
judgment of this Court in Santosh Kumar Mishra (supra). It
is only thereafter at the instance of the petitioner in the main
B Special Leave Petition that these applications were listed along
with Contempt Petition(C) No.115/2014, in order to ascertain
the correct position so as to direct the State of Uttar Pradesh
to proceed with the issuance of the orders of appointment as
directed by this Court in order dated 15.7.2014.
c 15. We heard Dr. Rajeev Dhawan, learned Senior Counsel
who appeared for such of those Contempt Petitioners who were
granted permission to appear before the Law Secretary and
make their say and the Law Secretary was directed to resolve
the dispute. We also heard Mr. V. Giri, learned Senior Counsel
D for the applicants in l.A.Nos.1-2 of 2014. Mr. lrshad Ahmed,
learned Additional Advocate General for the State of Uttar
Pradesh and Mr. Mukesh K. Giri, learned Counsel who also
appeared for some of the Contempt Petitioners who claimed
to be identically placed like the persons who were represented
E by Dr. Rajeev Dhawan.
16. Before adverting to their respective contentions, it will
be necessary to note the prayer contained in I.A. No.5/2014 in
Contempt Petition(C) No.269/2012. This I.A. has been filed by
F the State of Uttar Pradesh and the prayer in the application is
to issue direction to the Principal Secretary, Law, Government
of Uttar Pradesh, to recall his order dated 27.9.2013 and hear
the applicants, namely, the State of Uttar Pradesh and after
giving fresh notice to all the parties, pass appropriate order to
G declare the correct number of vacancies available for the post
of Pharmacist. To support the above prayer, it has been stated
in the application that the number of vacancies arrived at 950
in the report of the Principal Secretary, Law dated 27.9.2013,
does not reflect the correct figure, that the said figure came to
be arrived at by the Principal Secretary, Law based on the
H
DONESH RAJPUT v. PRADEEP KUMAR SHUKLA 631
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
information furnished by the then Director (Para-Medical) Dr. A
V.S. Srivastava, who failed to gather the total number of
vacancies in the Department from all the Districts with the
matching information available at the Headquarters, as well as,
the Government orders regarding sanction of posts and,
therefore, it requires reconsideration. It was also stated that the B
said Director Dr. V.S. Srivastava has been proceeded against
by way of disciplinary action for furnishing wrong information
to the Principal Secretary, Law.
17. It was stated that when the discrepancy in the number
of vacancies noted in the report dated 27.9.2013 was pointed C
out to the Law Secretary in response to the applicants' request,
the Principal Secretary, Law rightly informed the applicants in
his reply by stating that since he had submitted his report dated
27.9.2013, pursuant to the directions of this Court in the order
dated 29.4.2013, he was not in a positicm to comply with the D
request of the applicant-State.
18. In such circumstances, at the very outset, since the
State of Uttar Pradesh has come forward with valid reasons
as to why the number of vacancies mentioned in the report of E
the Principal Secretary, Law dated 27.9.2013, does not reflect
the correct position, we are convinced that the applicant State
should be allowed to verify the available vacancies by calling
for particulars from the Department from all the Districts,
matching with the information available in the Headquarters and F
also after considering the Government orders regarding the
number of posts sanctioned. Granting such permission will also
benefit the aspiring applicants for whom the benefit has been
conferred in the judgment of this Court in Santosh Kumar
Mishra (supra).
G
19. Therefore, while directing the Principal Secretary, Law,
Government of Uttar Pradesh to recall his order dated
27 .9.2013, insofar as it related to the ascertainment of the
number of vacancies for the reasons mentioned by the applicant
in this application, we permit the applicant himself to gather the H
632 SUPREME COURT REPORTS [2014] 10 S.C.R.
A required particulars from all the Districts of the concerned
Department, apart from verifying with the matching information
available at the Headquarters and after taking into account the
posts sanctioned under various Government orders and
thereafter, finalize the available vacant posts of Pharmacists.
B The said exercise shall be carried out by the applicant
expeditiously, preferably within a month from the date of
production of a copy of this order.
20. When we come to the prayer in I.A. Nos.1-2 of 2014
in Contempt Petition(C) No.115/2014, the prayer is for
C clarification/modification of our order dated 15. 7.2014, passed
in Contempt Petition (C) No.115/2014 which stated thc:t the
existing vacancies shall be filled by the State Government from
those candidates whose application forms were received by
the Department pursuant to the advertisement of the year 2007
D and who were found to be eligible. We find some justification
to consider the said prayer made in the said interlocutory
applications. For that purpose, the relevant Rules, namely,
Rules 14 and 15 of the Rules of 1980, are required to be noted
along with the submissions made by Dr. Rajeev Dhavan,
E learned Senior Counsel representing those persons whose
numbers have been ascertained as 360 in the report of the
Principal Secretary, Law dated 27.9.2013.
21. The said report came to be submitted in compliance
F of our order dated 29.4.2013, wherein while considering the
grievances of the various .Contempt Petitioners which was
referred to in paragraphs 8 to 12 of our order dated 29.4.2013,
we directed those petitioners to appear before the Principal
Secretary, Law and state their claims with a further direction
G to the Principal Secretary, Law to resolve their disputes. In
compliance of the said direction, it has now been reported by
the State of Uttar Pradesh in the reply affidavit dated 08.7.2014,
that according to the Principal Secretary, Law, the number of
candidates were 360, but when the grievances were examined,
H it came to light that many of those persons never applied and
DONESH RAJPUT v. PRADEEP KUMAR SHUKLA 633
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
several others who claimed to have applied on verification, it A
was found that there was no such application on record. The
above report of the Principal Secretary, Law has to be kept in
mind while considering the submissions of Dr. Rajeev Dhawan,
learned Senior Counsel, as well as, Mr. Mukesh K. Giri, learned
Counsel who represented some other similarly placed persons. B
22. Dr. Rajeev Dhi=lwan, learned Senior Counsel in his
submissions contended that once the judgment of Santosh
Kumar Mishra (supra) directed that the benefit would accrue
to all those who were similarly placed and who were to be
accommodated, which was reinforced in the subsequent order C
dated 27.11.2012 in Contempt Petition(C) No.26912012 by
making the intention of this Court clear to the effect that benefit
should be given to similarly placed candidates in the batch of
the years 1998 to 2002. According to the learned Senior
Counsel, there cannot be a different treatment now meted out D
to those persons. The contention of Dr. Rajeev Dhawan,
learned Senior Counsel is, therefore, that when the above 360
candidates who belonged to the batches of the year 1998 to
2002, no discriminatory treatment can be meted out to them in
the matter of considering their claim for appointment to the E
available posts of Pharmacists.
23. Though in the first blush, such a submission of the
learned Senior Counsel appears to be forceful and appealing,
· it will have to be stated that even such a claim of any person F
as similarly placed candidate cannot be considered de hors
the relevant Rules relating to appointment to the posts of
Pharmacists. In this context, the reference to Rules 14 and 15
and the advertisement dated 12.11.2007, assume significance.
We have taken pains to analyse this issue and clarify the
position in order to give effect to the orders of this Court G
rehdered in Santosh Kumar Mishra (supra), so that there is
no doubt in the minds of either the claimants or the Appointing
Aut~.ority, namely, the State while implementing our orders.
24. Rules 14 and 15 read as under: H
634 SUPREME COURT REPORTS [2014] 10 S.C.R.
A "14. Determination of vacancies- The Director shall
determine the number of vacancies to be filled during the
course of the year as also the number of vacancies to be
reserved for the candidates belonging to the Schedule
Castes, Schedule Tribes and such other categories under
B rule 6. He shall notify the vacancies to the Employment
Exchange and shall also advertise them in leading
newspapers and in such other manner as may be
considered proper by him.
15. Procedure for Direct Recruitment:- (1) For the purpose
c of recruitment, there shall be constituted a Selection
Committee comprising-
1. Additional Director, to be nominated by the Director
2. Joint Director, dealing with establishment of
D
Pharmacists,
3. Secretary State Pharmacy Council
(2) The Selection Committee shall prepare a list of
E candidates in order of merit as disclosed by marks
obtained by them in diploma examination. If two or more
candidates obtain equal marks, the Selection Committee
shall arrange their names in order of merit on the basis of
their general suitability for the post. The number of the
F names in the list shall be larger (but not larger by more than
25 percent) than the number of vacancies. The list so
prepared shall hold good for one year only.
(3) The Director shall forward the requisite number of
names in order of merit, from the list to be concerned
G appointing authority/appointing authorities."
25. Alongwith the above Rules, it is relevant to note the
advertisement made, in the year 2007, namely, 12.11.2007
which is as under:
H
DONESH RAJPUT v. PRADEEP KUMAR SHUKLA 635
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
"Dainik Jagran Daily News Paper Dated -18.11.2007 A
Office of Director General Medical and Health
s,rvices, U.P.
Advertisement No :-2/appointmenU2007 dated :-
12.11.2007 B
Date of issuing the advertisement :- 12.11.2007
Last date of accepting the application :- 04.12.2007
by 5 PM
c
Place of sending the application :- Medical section - II,
Swasthya Bhawan, Lucknow.
In view of the directions given vide Government
Order No.1490/4/07-M-72-2006 dated 11.10.2007, D
applications are invited for the direct recruitment on the
temporary following posts in the Government Hospital of
Rural and Urban areas of the state by the Director General
Medical and Health Services, U.P. Swasthya Bhawan,
Lucknow the following posts under the provisions and E
service conditions given for the direct recruitment
procedure Rule 2002 and amended Rule 2003 and
concerned service Regulation of the concerned cadre of
direct recruitment of Group -C posts outside the
jurisdiction of U.P.Public Service Commission in the F
prescribed format.
s. Post Name Age Pay Total Gen. SC. ST. OBC Education
No. of as Scale Num Qualification
appointing on ber
authority 01 of
July, post G
2007
2. Phar D:> 18-35 4500- 765 386 181 15 207 Diploma in
maci years 7000 phannacy
st from any
(Allo. recognized
institutes and H
636 SUPREME COURT REPORTS [2014) 10 S.C.R.
A registration in
State
Pharmacy
Council U.P.
Note :- Number of vacancy may be decreased or
B increased.
Preferential qualification :-
1. Minimum two years experience in the State service.
c 2. Candidate has obtained the B certificate of National
Cadet Corps.
General instructions :-
(i) It is necessary to get the candidates registered in
D U.P. State Medical faculty for the post of Lab
Technician, X-ray technician and Physiotherapist.
(ii) The selection of the candidates shall be made on
the basis of prescribed procedure by the
E Department Selection Committee, the decision of
the selection committee in this regard shall be final.
No correspondence shall be accepted on the said
subject. The recommendation/approval of any kind
in the selection shall be considered to be ineligible.
F (iii) Selection of the able candidate shall be done on
the basis of the interview held by the departmental
selection committee and no travelling allowances
shall be payable to the candidate for the interview.
G (iv) Certificate of the educational qualification and
technical ability duly attested by the Gazetted
officer. Registration certificate of U.P. Council/
faculty for concerned post. Caste certificate issued
by the competent authority should be enclosed with
H the application and should take the certificate of the
DONESH RAJPUT v. PRADEEP KUMAR SHUKLA 637
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
principal from the Educational institution last A
studied. Candidate will have to give the address for
correspondence and ticket of the prescribed
amount.
(v) The name of the post applied for and name of the
8
SC, ST, OBC should be written in legible letter on
the envelope of the application.
(vi) The freedom fighter of U.P. Handicapped person,
Ex. Army Man will have to be enclosed the
certificate related to it and the claim made by the c
candidate will not be acceptable.
(vii) Certificate of married or un-married, the certificate
of Husband and wife either of the two in case of
married person will have to be enclosed.
D
(viii) At the time of interview, candidate will have to
produce the education and technical ability
certificate and certificate related to caste in original.
(ix) The candidate of the reserved category will be given E
the relaxation of the age limit as per rules and the
age of the Ex.Army man shall be determined as per
the Government order.
(x) Selected candidates shall be posted in the Primary/
Community Health Centre or State. Hospital or F
Government Distt. Hospital and he can be
transferred at any other place in future.
(xi) UndesireCI application shall not be entertained and
no correspondence will be made in this regard. G
(xii) Information shall be given separately. for the
interview on the prescribed date.
(xiii) Application received after prescribed date shall not
H
638 SUPREME COURT REPORTS [2014] 10 S.C.R.
A be considered and if the application is not in
prescribed form then legible signature of the
candidate on the prescribed format at the foot of
the application or the attested copy of required
certificate are not enclosed then the application
B shall be rejected and no correspondence shall be
accepted in this regard.
(xiv) Application shall be accepted through registered
posVSpeed PosUCourier by 05.12.2007 by 5 PM.
c (xv) Delay caused in sending the application ,bY
telegram of department/courier shall not be
entertained and in this regard no correspondence
should be made.
D (xvi) The candidate who is working in center and State
Government will have to produce the certificate from
service employer if no objection certificate send
then it will have to be produced certainly by the
candidate.
E Sd/- Director General
Medical and Health Services
U.P., Lucknow."
26. When this Court held that the benefit should be
extended to similarly placed persons who were to be
F accommodated, what it really meant to state was that those who
responded to the advertisement made on 12.11.2007, by which
applications were called for filling up the post of 765 vacancies
of Pharmacists, were to be considered only by following the
procedure prescribed under Rules 14 and 15 of the Rules of
G 1980. Certainly, without following the relevant Rules, namely, 14
and 15 and ignoring the requirements contained in the
advertisement dated 12 .11 .2007, no candidate can be
considered for being appointed to the post of Pharmacist. In
other words, for a person to claim himself to be similarly placed,
H i.e., at par with the writ petitioners, namely, the appellants
DONESH RAJPUT v. PRADEEP KUMAR SHUKLA 639
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
before the Division Bench of the High Court and the private A
respondents in the Special Leave Petition in Santosh Kumar
Mishra (supra), primarily they should have applied in response
to the advertisement dated 12.11.2007. If they had not
responded to the said advertisement by filing the appropriate
applic<!tions, they cannot subsequently be heard to say that they B
were ail similarly placed and that therefore, the State of Uttar
Pradesh should consider them as similarly placed candidates
like that of the private respondents in the Special Leave
Petition, for being considered for the post of Pharmacists,
merely because they belonged to some of the batches of 1998 c
to 2002.
27. Such a claim made on behalf of any of the candidates,
much less the 360 candidates who staked their claim before
the Principal Secretary, Law cannot, therefore, be
countenanced. The Principal Secretary, Law, having now D
reported in his report dated 27.9.2013 that none of the 360
candidates were the applicants, there is no scope for treating
them as similarly placed persons as held in Santosh Kumar
Mishra (supra). Consequently, their claim now raised before
us cannot also be acceded to. We, therefore, make it clear that E
neither the above 360 persons referred to in the report of
Principal Secretary, Law dated 27.09.2013 or any other
candidate who did not apply in response to the advertisement
dated 12.11.2007 claiming himself to be a member of the batch
1998 to 2002, can seek for consideration of his claim at par F
with the private respondents in Santosh Kumar Mishra
(supra) in order to consider his claim for conferring the benefit
granted in the said judgment.
28. Once we steer clear of the said position in I.A. Nos.1- G
2 of 2014 in Contempt Petition(C) No.115/2014, the only other
aspect to be considered is as to whether there is any case
made out for contempt as alleged in Contempt Petition(C)
No.115/2014. The said Contempt Petition has been filed by
some of the candidates of the year 2002. It is alleged that in H
640 SUPRi=ME COURT REPORTS [2014] 10 S.C.R.
A spite of the judgment bf this Court in Santosh Kumar Mishra
(supra), as well as, subsequent orders passed in various
·Contempt Petitions including the order dated 29.04.2013, the
respondent State has failed to fill up the vacancies and,
therefore, they are liable to be proceeded against for contempt
·s of judgment of this Court dated 03.8.2010 passed in Special
Leave Petition(C) No.20558/2009.
29. In the light of our order passed in 1.A.No.5/2014 in
Co11tempt Petition(C) No.269/2012 and I.A. Nos.1-2 of 2014
C in Contempt Petition(C) No.115/2014, we are convinced that
for the present, the allegation of contempt made in Contempt
Petition(C) No.115/2014 cannot survive. Therefore, the said
Contempt Petition is closed in the light of order passed in
l.A.Nos.1-2 of 2014 and our directions in I.A. No.5/2014.
D 30. The State of Uttar Pradesh is directed to conclude the
process of ascertainment of vacancies and fill up the remaining
vacancies in accordance with the judgment of this Court dated
03.08.2010 in Santosh Kumar Mishra (supra) and in
accordance with the clarification now made in this judgment.
E In the light of the present orders now passed, we do not find
any scope for passing any orders in the rest of the matters,
mentioned in this Court's order dated 14.02.2014 which are
disposed of. Accordingly I.As. are also disposed of. No costs.
F Devika Gujral l.A.'s and Contempt Petitions disposed of.
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