Prakash L. Kadam vs District Panchayat Bharuch and Others

C.L. Soni, J.—In this petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 29.05.2004

at Annexure-A, terminating the service of the petitioner as also the order dated 31.05.2004 at Annexure-B relieving the petitioner from the service

based on the order of termination. The case of the petitioner is that he was appointed as compounder on 19.04.1988 after following interview

procedure in the pay scale of Rs. 1200-2040/-. The/appointment order dated 19.04.1988 contains conditions out of which condition No. 5

provides for passing examination to be taken by the District Panchayat Service Selection Committee for the purpose of continuing in service. In the

said order, there was no condition of production of certificate of Gujarat State Pharmacy Council. It is the case of the petitioner that in the year

1988-89, though advertisement for regular selection for compounder was issued, however, since he was residing in the Rural Area, he had no

knowledge of such advertisement and therefore, could not apply for selection. Thereafter, in the year 1989-90, 1990-91, 1992-93, 1995-96,

1997-98, advertisements for such purpose were issued, but the same were for people belonging to Adivasi, Harijan and physically handicapped

category and it was not for general category candidates and therefore, he could not apply. The petitioner has further averred that in 2003-2004 an

advertisement was issued for general category candidates for the post of Junior Pharmacist and the petitioner applied for the said post on

17.06.2003. The petition is amended and the petitioner has further stated that the Rules were amended in the year 1998 for the post of

compounder and he thereafter applied on 23.11.1998 for registration in Gujarat State Pharmacy Council. The petitioner was then given registration

certificate by Gujarat State Pharmacy Council on 31.12.2003. The petitioner is not qualified for the post of compounder. The petitioner has further

averred that the petitioner had completed 16 years of service and he was not at fault for not passing examination as per the condition No. 5 of the

appointment order. It is specific case of the petitioner that the services of the petitioner were terminated without affording any opportunity of

hearing to the petitioner.

The petition is opposed by reply affidavit filed on behalf of the respondent No. 2, stating that the appointment of the petitioner was subject to

condition No. 5, which provided for passing relevant examination conducted by the District Panchayat Service Selection Committee of District

Panchayat, Bharuch and it was sole responsibility of the petitioner to appear in such examination and pass through selection process. However, the

petitioner failed to take cognizances of the advertisement issued by the selection committee and thus, committed breach of the main condition of the

appointment order. It is further stated that the selection committee had given advertisements number of times in leading newspaper for the post of

compounder. However, the petitioner did not bother to make any application and therefore, the petitioner could not claim any right to continue in

service. It is also stated that the petitioner has produced certificate of Gujarat State Pharmacy Council of the year 2003 i.e. after 15 years of ad-

hoc appointment and therefore, the petitioner is not entitled to continue in service.

The petitioner has filed rejoinder to the aforesaid affidavit in reply and stated that when he was appointed, there was no requirement for

registration with Gujarat State Pharmacy Council, however, subsequently when such requirement was incorporated in the Rules, the petitioner

applied for registration with the Gujarat State Pharmacy Council and got such registration in the year 2003.

Respondents have also filed affidavit in sub-rejoinder pointing out that the petitioner did not have requisite qualifications for the post of

compounder and therefore, he was not entitled to continue in service, as he failed to comply with prerequisite condition for his continuation in

service.

I have heard learned advocates for the parties. Learned advocate Mr. M.J. Mehta for learned advocate Ms. Sejal G. Mandavia for the

petitioner submitted that the petitioner was appointed as compounder after successfully getting through the interview. Mr. Mehta submitted that

though the appointment order of the petitioner contained a condition to pass through selection process to be undertaken by the Panchayat Service

Selection Board, however, at the initial stage, since the petitioner was serving in Rural Area, he could not get the opportunity to apply for

examination to be conducted by service selection committee.

Mr. Mehta submitted that it is not that the petitioner was not willing appear in the examination conducted by service selection committee,

however, he could not get such chance subsequently till 2003, as the advertisements were for the candidates belonging to the categories other than

the general category. Learned advocate Ms. Mehta submitted that the petitioner sincerely discharged his duties for more than 16 years, when the

impugned order of termination was passed against him and in such circumstances, the respondents were not justified in terminating the services of

the petitioner without affording any opportunity of hearing to the petitioner.

Learned advocate Mr. Mehta submitted that the petitioner was however capable to pass the examination conducted by the service selection

committee/Board and therefore, when the petitioner got opportunity under the interim order passed by this Court dated 09.12.2004 to appear

before the selection committee, the petitioner successfully passed through the selection examination conducted by the selection committee and in

view of such development, the impugned order is required to be quashed and set aside. Learned advocate Mr. Mehta submitted that after this

Court passed above said order, the petitioner continued to discharge his service as compounder. However, the selection committee has

recommended to consider the service rendered by the petitioner from 28.04.1988 to 31.12.2003 as irregular service and not to count such

services for the purpose of salary and pension and other incidental benefits and to consider his services from 01.01.2004 as regular service for the

post of compounder on the ground that the petitioner got registration with Gujarat State Pharmacy Council on 31.12.2003.

Learned advocate Mr. Mehta submitted that there was no requirement for registration with Gujarat State Pharmacy Council when the petitioner

was appointed. Mr. Mehta submitted that after long service tenure of the petitioner, the petitioner cannot be denied benefit of regular service only

on the ground that the petitioner did not possess qualification as registered pharmacist in the State of Gujarat. He thus, urged to allow the petition.

As against the above arguments, learned AGP Shri Niraj Ashar submitted that the service of the petitioner was rightly terminated by the

impugned order, as the petitioner has failed to satisfy condition No. 5 of the appointment order. Learned AGP Shri Ashar submitted that the

impugned order is also passed on the ground that the petitioner had not got himself registered as pharmacist with Gujarat State Pharmacy Council

and therefore, he could not be said to have possessed the qualification for the post of compounder. Learned AGP Shri Ashar submitted that since,

the petitioner had not complied with the condition No. 5 of the appointment order and since, he was not having qualification as registered

pharmacist, the services of the petitioner were rightly considered as irregular services for the period from the date of his appointment till

31.12.2003.

Learned AGP Shri Ashar submitted that though the petitioner has successfully passed through selection process conducted by the selection

committee as permitted by the impugned order dated 09.12.2004, however, the petitioner cannot be made entitled to any benefit for the services

rendered by the petitioner from the date of appointment till he got registration as pharmacist on 31.12.2003 with Gujarat State Pharmacy Council.

Learned AGP Shri Ashar thus, urged to dismiss the petition.

Having heard learned advocates for the parties and having gone through the record of the case, it appears that on the basis of the appointment

order dated 19.04.1988 at Annexure:A, the petitioner continued to serve as compounder in Primary Health Center till the impugned order was

passed against him. Till the date of impugned order, the petitioner had already completed 16 years of service.

Condition No. 5 of the appointment order provides for passing of the examination by the petitioner to be conducted by the District Panchayat

Service Selection Committee. As per the said condition, it was for the petitioner to apply for such examination as and when the advertisement was

issued for regular selection for the post of compounder. It is further provided in the said condition that the petitioner shall be entitled to continue in

service only if the petitioner passes the selection examination conducted by the selection committee.

It is the case of the petitioner that he had got one chance initially to appear before the selection committee in the year 1988-89, however, since

he was serving in the Rural area, he missed such chance having not noticed public advertisement and in subsequent examinations, he could not

appear because those examinations were for the people belonging to reserved category and lastly he got chance to appear before the selection

committee after this Court passed interim order. It is not in dispute that after the petitioner was permitted to appear before the selection committee,

he successfully passed through the selection process conducted by the selection committee of the Panchayat.

This Court when permitted the petitioner to appear before the Selection Committee by order dated 09.12.2004 also granted interim protection

to the petitioner by directing the respondents to continue the petitioner in service till regularly selected candidate through Gujarat Public Service

Selection Board was made available.

It is not the case of the respondents that against the post of the petitioner, another candidate selected through the Gujarat Public Service

Selection Board was made available. In the meantime, the petitioner also got himself registered with Gujarat State Pharmacy Council on

31.12.2003. It is not in dispute that the petitioner was already registered as pharmacist with the Maharashtra State Pharmacy Council.

However, the selection committee has recommended to consider the service of the petitioner from 01.09.2004 as regular service on the

ground that the petitioner was not possessing requisite qualification for the post of compounder as he was not registered with Gujarat State

Pharmacy Council.

For such purpose, the committee has relied on the Gujarat Panchayat Service (Classification and Recruitment), Rules, 1967 and the definition

of registered pharmacist contained in Pharmacist Act of 1948.

Rule 7 of the Gujarat Panchayat Service (Classification and Recruitment), Rules, 1967 provides that a candidate who is not above 45 years of

age and who is registered as pharmacist under the Pharmacist Act of 1948, shall be recruited from amongst candidates for the post of

compounder. It is further provided that till the registration of Pharmacist in entire State is not completed, the candidates having the qualification of

Pharmacist shall also be considered to be eligible for the post of compounder. The definition of registered pharmacist is as under:

(i) ""registered pharmacist"" means a person whose name is for the time being entered in the register of the State in which he is for the time being

residing or carrying on his profession or business of pharmacy;

Thus, the registered pharmacist is a person, whose name for time being is entered in the State, in which for the time being he is residing or

carrying on his business of pharmacy. The petitioner when resided in the State of Maharashtra got himself registered as Pharmacist with the

Maharashtra State Pharmacy Council. However, till 31.10.2003, he did not get himself registered with the Gujarat State Pharmacy Council. But,

such was not the requirement when the petitioner was appointed in the year 1988. The recruitment rules for the post of compounder are of 1998.

In such rules, the eligibility criteria for a candidate applied for the post of compounder is the registration with the Gujarat State Pharmacy Council.

However, it is not pointed out that the persons who were appointed prior to coming into force of Rules of 1998, were required to get themselves

registered with the Gujarat State Pharmacy Council to be qualified for the post of compounder.

Therefore, it cannot be said that the petitioner was not qualified for the post of compounder when he was appointed. In any case, when the

petitioner was allowed to serve for more than 16 years, the service of the petitioner for such period could not be said to be irregular service, simply

because the petitioner did not get himself registered with the Gujarat State Pharmacy Council. The objection about lack of qualification after more

than 16 years cannot be permitted to be taken.

The petitioner has now passed the examination conducted by the selection committee and the petitioner has also got himself registered with

Gujarat State Pharmacy Council.

In view of the above facts and circumstances of the case, the impugned order dated 29.05.2004 and consequential order of relieving dated

31.05.2004 both are required to be quashed and set aside and the services put by the petitioner right from the date of his appointment are required

to be treated as regular services for the purpose of pension and other benefits. For the reasons stated above, the petition is allowed. Impugned

order dated 29.05.2004 at Annexure:A and consequential order dated 31.05.2004 at Annexure:B are quashed and set aside. The petitioner is

held to be in continuous service for all purposes. The respondents are directed to workout and pay all consequential benefits available to the

petitioner within 3 months from the date of receipt of this order. Rule made absolute.