Hon’ble D.P. Singh, J.—Heard counsel for the petitioner and the learned Standing Counsel.

2. All the petitioners in this bunch of writ petitions claim that they have passed their diploma course in pharmacy in different years from various recognised institutions and they have registered themselves with the U.P. Pharmacy Council in different years. They have preferred these petitions for quashing of an advertisement dated 12.11.2007 for recruitment as Pharmacist and for a mandate that selection be made yearwise.

3. Earlier, the selections were being made under U.P. Pharmacists Service Rules, 1980 (hereinafter referred as the 1980 Rules) and in view of Rule 15(2), the selection committee was obliged to prepare a list in order of merit according to the marks obtained by them in the diploma examinations. However, by misinterpretation of the provision, selections were being made yearwise and batchwise and not strictly in accordance to the merit, as envisaged in the said rule.

4. An advertisement dated 12.11.2007 was issued inviting applications for recruitment of 766 posts of Pharmacist and it was stipulated therein that the recruitments would be made under the U.P. Procedure for Direct Recruitment of Group ‘C’ Post (Outside the Purview of Public Service Commission) Rules, 2002 as amended in 2003 (hereinafter referred to as the 2002 Rules).

5. It appears that about 800 diploma holders who had applied, filed several writ petitions before the Lucknow Bench of this Court claiming that the recruitments should be held under the 1980 Rules. A learned Single Judge in the case of Sunil Kumar Rai and others v. State of U.P. and others (Writ Petition No.7699 (SS) of 2007) treating it as the leading petition, alongwith several other petitions, vide its judgment dated 23.5.2008, held that the appointments could not be made under the 2002 Rules unless they were amended and, therefore, had to held under the 1980 Rules in the following words :

“Consequently, inevitable conclusion is that unless and until sub-rule (3) of Rule 5 of Uttar Pradesh Procedure for Direct Recruitment of Group “C” Posts (Outside the Purview of Public Service Commission) Rules, 2002 and the Uttar Pradesh Procedure for Direct Recruitment of Group “C” Posts (Outside the Purview of Public Service Commission) (First Amendment) Rules, 2003 is amended same cannot be pressed into service in reference to clause (a) of sub-rule (3) of Rule 5 vis-a-vis the post of Pharmacist under 1980 Rules.”

6. His Lordship was then confronted with a situation, that despite Rule 15(2) of the 1980 Rules, the selection was being made batch or yearwise i.e. incumbents of an earlier batch or year would be selected according to their inter se seniority, even though they had obtained lesser marks than a candidate of subsequent year or batch inspite of having secured higher marks in the qualifying diploma examination. Considering several earlier judgments on the issue which had interpreted Rule 15(2) of the 1980 Rules, went on to hold :

“Consequently, in the facts and circumstances of the present case, all the writ petitions are disposed of with the direction that Director General, Medical and Health U.P. Lucknow is competent to issue advertisement and constitute Selection Committee in terms of Rule 6 of the Uttar Pradesh Procedure for Direct Recruitment of Group “C” Posts (Outside the Purview of Public Service Commission) Rules, 2002 and the Uttar Pradesh Procedure for Direct Recruitment of Grup “C” Posts (Outside the Purview of Public Service Commission) (First Amendment) Rules, 2003, but until and unless amendment is made in clause (a) of sub-rule (3) of Rule 5 thereof, selection cannot be undertaken by computing the marks as per procedure prescribed therein rather selection has to take place as per provisions as contained under Rule 15(2) of the U.P. Pharmacists Service Rules, 1980 on the basis of the marks obtained in Pharmacy Diploma Examination, irrespective of the year in which candidate h