JUDGMENT Arun Tandon, J.
1. This bunch of 51 writ petitions has been filed by petitioners who have obtained Diploma in Pharmacy and seek appointment on the post of Pharmacist under the provision of U.P. Pharmacist (Allopathic) Service Rules, 1980. The petitioners may be categorised into 2 groups for disposal of these petitions.
(A) Petitioners who have obtained the diploma in Pharmacy prior to the year 1998 and had applied for being considered for appointment on the post of Pharmacist in pursuance of the Advertisement dated 25.8.1998.
(B) Petitioners who have obtained diploma in Pharmacy subsequent to year 1998 and had not applied in pursuance of the Advertisement dated 25.8.1998.
2. Appointments on the post of Pharmacist is made in accordance with Rule 15 of the Pharmacist Service Rules, 1980 for reference the same is being quoted herein below:
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 Pharmacists;
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 umber of names in order of merit from the list to the concerned appointing authority/appointing authorities.
3. An advertisement was published inviting application for direct recruitment on the post of Pharmacist on 28.8.1998 by the respondents. A selection committee was constituted for preparing the list of candidate in order of merit as disclosed by marks obtained by them in the diploma examination.
4. A dispute arose with regards to the selections so held resulting in large number of writ petitions being filed before the Lucknow Bench of this Hon'ble Court being writ petition No. 2473 (SS)of 2000 and other connected writ petitions. The writ petitions were heard and decided under a common judgment dated 28.5.2004. The operative portion of the judgment reads as follows :
In view of the discussions made above, I hold that the petitions deserve to be allowed.
Accordingly, all the petitions are allowed and a writ of Mandamus is issued to the opposite-parties to appoint the petitioners in the vacancies, which remained unfilled after a select list was prepared in pursuance of the Notification dated 28* August 1998. The appointments shall be offered within one month from the date a copy of this Judgment is furnished to the Appointing Authority.
5. On the strength of the judgment in the aforesaid writ petitions the present petitioners seek similar treatment and claim a right of appointment on the post of Pharmacist against the existing vacancies. It is also on record that a large number of writ petitions were filed subsequent to the aforesaid judgment of this court dated 28.5.2004 by the persons holding a diploma of Pharmacy. The writ petitions were disposed of with a direction that such petitioners shall also be entitled to the benefits of judgment dated 28.5.2004.
6. Now these 51 writ petitions have been filed wherein the number of petitioners is much more than the vacancies which were advertised in the year 1998.
7. In view of the various orders passed by the Hon'ble Court, the State respondents were put in a quandary qua offer of appointment to all such persons who had approached this Court seeking appointment on the post of Pharmacist irrespective of the No. of posts advertised and rules applicable. In order to resolve the controversy which had so arisen because large number of petitioners approaching this Court for grant of similar benefit on similar terms and conditions as granted to other petitioners, this Court thought it proper to insist upon the State respondents to explain the factual as well as legal position before this Court qua appointment on the post of Pharmacist with specific reference to the direction issued under the judgment dated 28.5.2004.
8. On behalf of the State respondents a counter affidavit has been filed by Dr. Mahendra Kumar, Joint Director, Paramedical, Swasthya Bhawan, Lucknow and it has been stated that in the year 1998 total number of vacancies advertised were 423. The break up of the vacancies so advertised was as follows :
a. General Category............................199 b. Other Backward category.................107 c. S.C./S.T.........................................116
9. It is further stated that the Selection Committee prepared the merit list as per Rule 15 of the Pharmacy Service Rules on yearwise basis, with reference to year in which the particular candidate had passed the Pharmacy examination.
10. So far as the posts within the General Category are concerned the applicants who had passed the Pharmacy examination upto the year 1991 have all been offered appointment irrespective of the marks obtained in the pharmacy diploma examination. The remaining advertised vacancies were, thereafter, offered to the candidates who had passed the Pharmacy examination in the year 1992 and had secured 52.08 per cent marks in diploma examination.
11. Similarly in respect of candidates who had applied in pursuance of the advertisement against the other Backward Class category, appointments have been offered to the candidates who had passed the diploma examination upto the year 1993 irrespective of the marks obtained in the pharmacy diploma examination. The advertised vacancies left thereafter have been offered to the candidates who have passed the diploma examination in the year 1994 in accordance with merit disclosed from the marks obtained by them in the diploma examination, last candidate so appointed has secured 54.50 per cent marks.
12. So far as Scheduled Castes and Scheduled Tribes candidates are concerned, it is stated that the candidates who have passed the Pharmacy examination up to the year 1996 have been offered appointment irrespective of the marks obtained in the pharmacy diploma examination and the remaining advertised vacancies thereafter have been offered to the candidates who have passed the Pharmacy examination up to the year 1997 with pass percentage of 59.20.
13. It is lastly stated that 23 advertised vacancies still remain to be filled which according to the Chief Standing Counsel belong to S.C./S.T. Category only.
14. Chief Standing Counsel has further made a statement that any petitioner who has passed his Pharmacy examination prior to 1991, belonging to the general category or who has passed the Pharmacy examination in the year 1992 with more than 52.08 per cent marks shall be offered appointment. Similarly it is stated that any petitioner belonging to Other Backward Class who has passed the Pharmacy examination upto year 1993 shall be offered appointment as also any other petitioner of same category, who had passed the diploma examination in the 1994 with 59.40 per cent marks shall also be offered appointment. In respect of candidates belonging to S.C./S.T., it is stated that any petitioner who has passed the Pharmacy examination, upto the year 1996 shall be offered appointment as also any other petitioner of the said category who had obtained the diploma in the year 1997 with 59.50 per cent marks.
15. However, all such petitioners to whichever category they may belong must further satisfy the following conditions:
a. They had applied in pursuance of the Advertisement in the proforma prescribed complete in all respect.
b. Such petitioners make a representation supported by such documents as may be advised, within four weeks from today before the Director General, the respondent No. 2. On such a representation being made the respondent No. 2 shall act in accordance with law and the statement made on behalf of the respondents herein above.
16. If any petitioner has become over age during this period his claim shall not be rejected on that ground.
17. If after offering appointment to such petitioners if certain other advertised vacancies remain unfilled as per the advertisement of the year 1998, the respondents shall consider the claim of other petitioners who had applied in their particular category in pursuance to the advertisement of 1998 strictly in accordance with the merit disclosed in the Pharmacy examination. The respondent shall endeavour to fill in all the vacancies which have been advertised within three months from the date a certified copy of this order is filed before the Director.
18. Petitioners belonging to Category 'A' referred to above are granted liberty to file their representation supported by such documents in light of the observations referred to above before. Respondent No. 2 within Four weeks from today.
19. So far as the petitioner belonging to Category 'B' are concerned since they had not applied in pursuance of the Advertisement which was published in 1998, they are not entitled for being considered against the advertised vacancy, their claim shall be considered as and when fresh recruitment for the post of Pharmacist is undertaken by the State respondents.
20. This Court has no room to doubt that if there are existing vacancies and there is a need for fresh recruitment the State shall take a decision to start the process of selections strictly in accordance with rules specifically Rule 15, at the earliest possible. There should not be any inordinate delay in filing up of the future vacancies as per the requirement. In order to safeguard the interest of the parties it would be fair that the Secretary, Medical Health U.P. may determine as to how many of the subsisting vacancies are required to be filled in the interest of the department, Such a decision be taken preferably within two months from the date a certified copy of this order is filed before the Secretary who shall thereafter initiate the fresh recruitment process at the earliest.
21. This Court may also record that the procedure which was adopted by the Selection Committee for preparing the merit list in the year 1998 was not in strict compliance of Rule 15 of the Pharmacy Service Rules 1998, inasmuch as under the Rules merit list is to be prepared on the basis of the marks obtained in the Pharmacy Diploma examination irrespective of the year in which the applicant had appeared in the diploma examination. However, this Court in the present case is not inclined to upset the merit list which had been prepared in the year 1998 as none of the petitioners had challenged the same within reasonable time i.e. when the same was declared and appointments were offered nearly 13 years ago. Moreover, the petitioners have approached this Court seeking similar treatment as in other cases on the basis of the same merit list prepared by the Selection Committee with reference Rule 15 of the Pharmacy Rules in the year 1998.
22. All the Writ petitions stand disposed of.