IMPORTANT POINT
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.

Headnote:(a) Interpretation of Statutes – “Generalia specialibus non derogant” – The maxim indicates that general things do not derogate from special things – 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. (Para 18)
        (1999) 5 SCC 624 – Relied upon
        (b) Interpretation of Statutes – If a subsequent law did not repeal the earlier rule, there cannot be a presumption that the earlier rule was intended to be repealed – When two provisions of law, one general and the other special, govern the same matter, the court should make an attempt to give a harmonious construction to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 be given effect to. (Para 19)
        2010 (2) SCALE 833 – Relied upon
        (c) Service Law – Appointment – Past practice – In the absence of any provision in the rules, no right can be claimed on the basis of past practice. (Para 20)
        (2000) 7 SCC 561 – Relied upon
        (d) Judicial Review – Long standing practice of construing the service rules should be preferred. (Para 23)
        (1992) Supp. (1) SCC 584 – Relied upon
        (e) Judicial Review – When there is possibility of two views being taken while interpreting a particular set of service rules, the rules should be interpreted in consonance with the practice followed by the department for a long time. (Para 24)
        (2007) 5 SCC 535 – Relied upon
        (f) Service Law – Appointment – 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. (Para 32)
        (1992) Supp. (1) SCC 584 – Relied upon
        (2000) 7 SCC 561 – Distinguished
        Writ Petition No.2473 (SS) of 2000 – Referred
       Facts of the case:
        1. 766 vacancies for Pharmacists were advertised for being filled up by diploma holders. The advertisement provided that the recruitment would be made in accordance with the U.P. Procedure for Direct Recruitment of Group ‘C’ Posts.
        2. According to the Respondents, 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 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.
        3. 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.
        4. The amended Rules were held to be intra vires. Therefore the State was competent to issue the advertisement and to constitute a Selection Committee in terms of Rule 6 of the 2002 Rules and the First Amendment Rules 2003.
        5. 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 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.
       Finding of the Court
        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.
       Result : SLPs dismissed.

JUDGMENT

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 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 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 diploma holders, who had obtained diploma before the Respondents, were adjusted against the vacancies first, irrespective of their merit vis-‘- 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.

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

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2010 Supreme(SC) 672

IMPORTANT POINT 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.

Cases Referred (5)

IMPORTANT POINT
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.