Santosh Kumar Gupta vs State of Rajasthan and Others

M.N. Bhandari, J.—The application for impleadment of the applicants as a party respondents has been heard. The applicants are allowed to intervene in the case and accordingly assist the court.

With the consent of learned counsel for the parties, this writ petition is heard finally.

The respondents issued an advertisement dated 26th February, 2013 to invite the applications for appointment on the post of Pharmacists. The qualification required for the post was mentioned at para No. 6 of the advertisement. Para No. 9 of the advertisement provides about the basis for preparation of select/merit list.

It is stated that in pursuance to the advertisement, the petitioner submitted application form but thereupon, it was found that the respondents are making discrimination in preparing the select/merit list. A candidate, having qualification of Diploma in Pharmacy (for short "D. Pharma") and other qualification of Bachelor in Pharmacy (for short "B.Pharma") and Master of Pharmacy (for short "M.Pharma") have been considered by taking their marks in B.Pharma or M.Pharma instead of D. Pharma. The petitioner is one, who is in possession of the qualification of D. Pharma as well as B. Pharma. His marks in B.Pharma have not been taken into consideration and what has been considered is the marks of the D.Pharma only. In view of the above, the respondents have made discrimination while preparing the select/merit list.

A reference of Rule 19 of the Rajasthan Medical & Health Subordinate Service Rules, 1965 (for short "Rules of 1965") has been given. An amendment in Rule 19 of the Rules of 1965 was made vide Notification dated 24th November, 2011. The selection was made on the basis of written examination. The respondents have failed to conduct written examination to have fair selection.

It is now brought to the notice of the Court that on 06th February, 2013, further amendment was made in Rule 19 of the Rules of 1965. There the criteria for determination of merit has been changed and is applicable to the present case as the advertisement was issued subsequent to it. In view of the amended provision notified on 06th February, 2013, the determination of merit has to be based on the marks obtained in qualifying course given in the Schedule. The Schedule appended to the Rules requires qualification of D.Pharma for the post of Pharmacists. In view of the above, the respondents should have prepared the merit/select list based on the marks of D.Pharma alone. They could have treated a candidate possessing higher qualification to be eligible but therein also, the determination of merit cannot be made in violation of Rule 19 of the Rules of 1965. In view of the above, the criteria for determination of merit has been taken contrary to the rules, thus provisional select/merit list deserves to be quashed with the direction to the respondents to prepare the select/merit list based on the qualification of D.Pharma and to give appointment thereupon.

Learned Additional Advocate General Mr. J.M. Saxena has contested the case. It is submitted that after the amendment in the Rules vide Notification dated 06th February, 2013, the written examination for selection is not required. The determination of merit has to be in consonance to the amended Rule 19 of the Rules of 1965, as notified on 06th February, 2013.

A reference of para No. 9 of the advertisement has also been given to show that select/merit list is to be prepared based on the marks obtained in the minimum qualification required by the candidate. It is submitted that a candidate, possessing higher qualification of B.Pharma or M.Pharma is also eligible for appointment in view of the judgment of Division Bench in the case of Irshad Rashid Pathan & Ors. VS. State of Rajasthan & Ors. in DB Civil Special Appeal (Writ) No. 772/2012. Therein, the candidates in possession of higher qualification were held eligible for the post of Pharmacists. In the light of the judgment of Division Bench, the Department considered all the candidates in possession of the qualification of B.Pharma or M.Pharma as eligible and, therefore, their marks in B.Pharma or M.Pharma were taken into consideration for determination of merit. In view of the above, there is no illegality in the action of the respondents. The provisional merit list prepared by the Department may accordingly be maintained and the writ petition be dismissed.

Learned counsel appearing for the intervener has adopted the arguments of learned Additional Advocate General. It is submitted that provisional select list has already been prepared, thus it may not be interfered, as the candidate possessing higher qualification is always eligible for appointment.

I have considered rival submissions of learned counsel for the parties and scanned the matter carefully.

The controversy involved in the present case is regarding criteria for determination of select/merit list and not for eligibility. A reference of certain paras of the advertisement has been given, thus are quoted hereunder for ready reference:

Para No. 6 provides as to what qualification is required for the post of Pharmacists whereas para No. 9 of the advertisement provides about criteria of the selection. As per para No. 9 of the advertisement, the determination of merit would be based on the marks obtained in the minimum qualification required for the post. The respondents, however, prepared the select list based on the marks obtained in D.Pharma for those candidates, who are in possession of the qualification only of D.Pharma. Those candidates, who are in possession of the qualification of B.Pharma or M.Pharma, their marks of B.Pharma have been taken into consideration for determination of merit. In view of the above, merit list has been prepared not only based on the marks in D.Pharma for some candidates and marks of B.Pharma for other candidates, thus determination of select/merit list is not based on the marks of one qualification but different qualifications.

The question is as to whether determination of merit in those circumstances is legal and in consonance to the Rules of 1965. Rule 19 of the Rules of 1965 provides the procedure of selection. The said provision was lastly amended vide Notification dated 06th February, 2013 and is reproduced hereunder for ready reference:

"Amendment of Rule 19. - The Existing proviso to rule 19 of the said Rules, shall be substituted by the following new proviso, namely:-

"Provided that in case of appointment to the post of Pharmacist, merit shall be prepared by the Appointing Authority on the basis of marks obtained in qualifying as specified in the schedule appended to those rules and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government, Chief Minister BPL Jeevan Raksha Kosh, National Rural Health Mission, Medi Care Relief Society, AIDS Control Society, Institutes under Cooperative Department of Sahakari Upbhokta Bhandar.

Provided that in case of appointment to the posts other than Pharmacists, which are not in the purview of the Commission, merit shall be prepared by the Appointing Authority on the basis of marks obtained in such qualifying academic examination or professional examination or both as specified by the State Government having regard to the length of experience on similar work under the Government, National Rural Health Mission and Medi Care Relief Society. Provided further that the decision of the Commissioner or Appointing Authority, as the case may be, as to the eligibility or otherwise of a candidate, shall be final."

As per the amended provision, the determination of merit for the post of Pharmacists is to be based on the marks obtained in qualification specified in the Schedule appended to the Rules and such bonus marks, as are specified by the State Government. In view of the above, the Schedule appended to Rules gets an importance for determination of merit. The Schedule appended to the Rules is also quoted hereunder for ready reference:

The Rule provides for qualification of D.Pharma. In view of the above and in the light of the amended provision, the respondents were under an obligation to prepare merit/select list based on the marks of the qualification given in the Schedule, which is D.Pharma. In violation of the Rules, the merit list has been prepared by taking the marks of B.Pharma or M.Pharma, in a given case.

Learned counsel for the respondents could not explain as to why the merit/select list has not been prepared in accordance to the amended provision notified on 06th February, 2013. The only justification given is in reference to the judgment of Division Bench in the case Irshad Rashid Pathan & Ors. (supra). The controversy in the case supra was altogether different. Therein, the post of Pharmacists was to be filled based on the selection through written test. The challenge was made about eligibility of certain candidates, who were in possession of qualification of B.Pharma and M.Pharma. The required qualification therein also was D.Pharma but the candidates in possession of qualification of B and M.Pharma were also permitted to appear in the selection test. The Division Bench held that a candidate possessing higher qualification can be held eligible for selection. In view of the above, the issue before the Division Bench was in regard to the eligibility of the candidates and not for determination of merit/select list, which is questioned herein. A candidate, possessing higher qualification can always be held eligible to appear in the selection but then it does not mean that for preparation of select/merit list, the Rule is allowed to be violated. The respondents were under an obligation to understand the difference between eligibility and criteria for determination of merit. When amended Rule 19 of the Rules of 1965 specifically provides about criteria for determination of merit, it cannot be violated. The respondents could have made a candidate, possessing higher qualification, to be eligible but then determination of merit of such candidate cannot be on a criteria different than provided under Rule 19 of the Rules of 1965. The respondents could have amended rule 19 further or the schedule.

An argument has been raised by learned counsel for the respondents that certain candidates possessing qualification of B.Pharma and M.Pharma are not possessing qualification of D.Pharma, thus their marks for B.Pharma and M.Pharma have been considered.

The argument aforesaid is to be considered in the light of the amended provision notified on 06th February, 2013. While making amendment, the respondents did not provide determination of merit based on the marks of qualifying course given in the Schedule or any higher qualification possessed by the candidates. In the light of the aforesaid, a candidate can be held eligible, if possessing higher qualification but determination of merit cannot be based on the marks of higher qualification because merit has to be taken based on one and the same criteria and given under Rule 19 of the Rules of 1965, i.e., based on the marks in the qualifying course, which is D.Pharma herein. It cannot be that for certain candidates, respondents can take qualification of D.Pharma and for others, B.Pharma and M.Pharma and, that too, when it is not permissible under Rule 19 of the Rules of 1965. The determination of merit can not be based on different qualifications and contrary to Rules.

It has been admitted by the parties that many candidates are in possession of qualification of D.Pharma, B. Pharma and M.Pharma. If the candidates are available with those qualification, would be eligible for the post but the merit for selection on the post of Pharmacists would be based on marks of the qualification referred in the Schedule appended to the rules, which is, D.Pharma, thus a candidate holding the higher qualification, would be eligible for the post but the merit would be determined based on the qualification of D.Pharma and if a candidate is not in possession of the qualification of D.Pharma, he would not find place in the select list as the determination of merit cannot be allowed contrary to the rules and based on the marks of different qualification.

Now, I need to consider the prayer made by the petitioner. The petitioner is one, who is in possession of the qualification of B.Pharma apart from D.Pharma. His prayer is that if any candidate possessing qualification of B.Pharma and M.Pharma is eligible and his marks of B.Pharma is taken into consideration, the same benefit should be given to the petitioner as he also possesses the qualification of D.Pharma and B. Pharma.

I am unable to accept the prayer made by the petitioner but at the same time, while considering the entire case, I find that respondents have prepared the merit/select list in violation of Rule 19 of the Rules of 1965, which has given not only cause to the present litigation but has made discrimination. In the case of the petitioner, his marks of D.Pharma have been considered, though he is possessing the qualification of B.Pharma, as well whereas in the case of other candidates, marks of B.Pharma have been taken into consideration.

Learned counsel for the respondents has justified their action. The candidates not in possession of qualification of D.Pharma, need to undertake four years'' course of B.Pharma whereas the candidates, in possession of qualification of D.Pharma, need to take only three yeas'' course. The candidates, not in possession of D.Pharma, get marks in B.Pharma after undergoing four years'' course whereas in the case of a candidate having qualification of D.Pharma and thereafter, undertake B.Pharma course, the marks of only three years'' B.Pharma Course is counted.

I fail to understand the aforesaid logic also. If the respondents have taken decision to consider the marks of B.Pharma or M.Pharma for few candidates, then they need to follow one criteria for all and cannot make discrimination. If a candidate, having qualification of D.Pharma, undertakes three years'' course of B.Pharma then the respondents have allowed to count his marks only of D.Pharma and not of B.Pharma whereas if a candidate has undertaken the qualification only of B.Pharma then his marks of that qualification would be taken into consideration, thus even if a candidate is possessing qualification of B.Pharma, it would not be considered in case he is possessing qualification of D.Pharma also. The observation aforesaid has been made to show as to in what manner, the respondents have prepared the select/merit list. The observation is only illustrative and not for giving any command to the respondents to prepare select list based on the marks of B.Pharma or M.Pharma. It has to be strictly in consonance to the Rule 19 of the Rules of 1965, as amended. The respondents were within their wisdom to amend the Rule but once the amendment is made, they are under an obligation to adhere to those Rules in strict terms and without deviation. In the instant case, there is a violation of Rule 19 of the Rules of 1965, as amended on 06th February, 2013.

In view of the above, while allowing this writ petition, the respondents are directed to prepare the select/merit list strictly in terms of Rule 19 of the Rules of 1965.

This disposes of the stay application as well.