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IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
N.K. MEHROTRA, J
Manoj Kumar Gupta and Another - Appellant
Versus
State of U.P. And others - Respondent
Writ Petition No. 4804 (S/S) of 2005
Decided on : 10-08-2005
Appointment - Pharmacist (Allopathy) - The court held that there is no provision for automatic appointment after obtaining the diploma under the Uttar Pradesh Pharmacist Service Rules, 1980. The petitioners have no vested right to appointment on any post that has not been advertised in accordance with the prescribed procedure.
Fact of the Case:
The petitioners sought a writ of mandamus to appoint them as Pharmacists (Allopathy) and pay them their salary and allowances. They argued that the Uttar Pradesh Pharmacist Service Rules, 1980 provide for automatic appointment after obtaining the diploma.
Finding of the Court:
The court found that there was no provision for automatic appointment under the rules and that the petitioners had no vested right to appointment on any post that had not been advertised in accordance with the prescribed procedure. As a result, the writ petition was dismissed.
Issues: The main issue was whether the petitioners were entitled to automatic appointment as Pharmacists (Allopathy) under the Uttar Pradesh Pharmacist Service Rules, 1980.
Ratio Decidendi: The court held that the rules did not provide for automatic appointment after obtaining the diploma and that the petitioners had no vested right to appointment on any post that had not been advertised in accordance with the prescribed procedure.
Final Decision: The writ petition was dismissed.
N.K. Mehrotra, J.
This is a writ petition under Article 226 of the Constitution for issuing a writ in the nature of mandamus commanding the opposite parties to appoint the Petitioners on the post of Pharmacist (Allopathy) and pay them their salary and other allowances of the post of Pharmacist (Allopathy). It is also prayed that the opposite parties be directed to consider the case of the Petitioners for recruitment to the post of Pharmacist (Allopathy) under the provisions of Rules 14, 15 and 17 of the Uttar Pradesh Pharmacist Service Rules, 1980 against the present existing vacancies and decide the representation of the Petitioner No. 1 dated 16.5.2005 as contained in Annexure-9 to the writ petition.
2. I have heard Shri R.C. Tiwari, the learned Counsel for the Petitioners and Shri N. C. Mehrotra, the learned Additional C.S.C. for the opposite parties.
3. Admittedly, there is no advertisement to fill up the vacancies of the post of Pharmacist (Allopathy). The claim of the Petitioners is that Rules 14, 15 and 17 of the Uttar Pradesh Pharmacist Service Rules, 1980 provide automatic appointment after getting the diploma of Pharmacist by the candidate. Rules 14, 15 and 17 of the Uttar Pradesh Pharmacist Service Rules, 1980 are as follow:
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 candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 6. He shall notify the vacancies to the Employment Exchange and shall also advertise them in the leading newspapers and in such other manner as may be considered proper by him.
15. Procedure for Direct Recruitment.-(1) For the purpose 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 Pharmacist ;
3. Secretary, State Pharmacy Council.
(2) The Selection Committee shall prepare a list of candidates in order of merit, as disclosed by marks obtained by them in the 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 names in the list shall be larger (but not larger by more than 25 per cent) than the number of the vacancies. The list so prepared shall hold good for one year only.
(3) The Director shall forward the requisite number of the names in order of merit, from the list to the concerned appointing authority/appointing authorities.
....
17. Appointment.-(1) On the occurrence of substantive vacancies the appointing authority shall make appointments by taking candidates in the order in which they stand in the list prepared under Rule 15 or 16 as the case may be.
(2) The appointing authority may make appointments in temporary and officiating vacancies also from the list, referred to in Sub-rule (1). If no candidate borne on these lists is available, he may make appointment in such vacancies from persons eligible for appointment under these rules. Such appointment shall not last for a period exceeding one year or the next selection under these rules, whichever be earlier.
4. A perusal of the aforesaid rules goes to show that there is no such provision of automatic appointment of the candidate who possesses the diploma in Pharmacy.
5. The learned Counsel for the Petitioners has submitted that in Writ Petition No. 2473 (S/S) of 2000, Rajat Yadav and Ors. v. State of U.P. and Ors. along with other connected 18 writ petitions, this Court had directed the opposite parties to appoint the Petitioners of those writ petitions in the vacancies which remain unfilled after a select list was prepared. A perusal of the said judgment (Annexure-3) goes to show that the facts of that case are quite different. The Petitioners' names were included in the select list prepared
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