# Dinesh Kumar Singh & others v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 623
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-28
- **Case number:** Civil Misc. Writ Petition No. 33148 of 2009
- **Bench:** D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-singh-others-v-state-of-u-p-and-others-41666
- **Pages:** 6

## Headnote

U.P. Pharmasists Service Rules, 1980
Rule 15 (2)-Selection of Pharmasistspreperation
of
merit
list-instead
of
yearwise or batchwise inter se-senioritycombined merit list prepared-out of 900
only 300 candidate questioned the action
of authorities-appellate court-confining
the
relief
only
within
those
300
candidates-directed for preparation of
their
merit
list-following
inter
se
seniority
with
batch/yearwise-now
petitioners
being
encouraged
with
Division
Bench
division-after
considerable
time
seeking
same
treatment-held-No relief can be granted.

Held: Para 15,16 & 17

Apart from the aforesaid, as already
observed above, any tinkering with the
order
would
amount
to
either
modification or as sitting in appeal over
624 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the said judgment. Both are against
judicial discipline.

Several judgments have been placed
before the Court to canvass that the
benefit of the judgment rendered in
similarly situated cases can be extended
to the petitioners also but, as already
mentioned, these aspects have to be
examined by that very Division Bench or
the appellate court.

For the foregoing reasons, no relief can
be
granted
to
the
petitioners
and
accordingly writ petitions are dismissed,
subject
to
the
observations
made
hereinabove.
Case law discussed:
(1969 (1) SCC 185), (1989 (2) SCC 356), (JT
1991 (4) SC 160), (2006 (11) SCC 464).

## Text

2 All] Dinesh Kumar Singh and others V. State of U.P. and others
623
cited in the aforementioned judgment of
this Court.

20. In view of the above discussion,
the petition succeeds and is allowed. The
order of impugned dismissal of the
petitioner dated 13.1.2006 and the orders
passed in the appeal and revision dated
19.3.2006 and 12.4.2007 respectively are
quashed. Since the order of dismissal has
been quashed by this Court, the petitioner
is
entitled
for
reinstatement.
The
respondents are directed to reinstate the
petitioner in service within one month
from the date of filing of a copy of this
order by the petitioner before the
authority concerned. It is further observed
that it shall be open to the appropriate
authority to award only other minor
penalty against the petitioner as provided
in sub rule (3) of rule 29 of the U.P. Govt.
Servant Conduct Rules, 1956 if the
charges are proved. All the consequences
shall follow. The petitioner shall be
treated to have remained in service with
all the consequential benefits of such
service.

No order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2009

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 33148 of 2009
Connected with
Civil Misc. Writ Petition No. 33389 of 2009
And
Civil Misc. Writ Petition No. 33431 of 2009
And
Civil Misc. Writ Petition No. 33494 of 2009
And
Civil Misc. Writ Petition No. 33614 of 2009
And
Civil Misc. Writ Petition No. 34075 of 2009
And
Civil Misc. Writ Petition No. 34170 of 2009
And
Civil Misc. Writ Petition No. 34177 of 2009
And
Civil Misc. Writ Petition No. 34328 of 2009
And
Civil Misc. Writ Petition No. 29283 of 2009
And
Civil Misc. Writ Petition No. 35766 of 2009
And
Civil Misc. Writ Petition No. 34897 of 2009
And
Civil Misc. Writ Petition No. 34483 of 2009

Dinesh Kumar Singh & others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Bhupendra Kumar Tripathi

Counsel for the Respondents:
S.C.

U.P. Pharmasists Service Rules, 1980
Rule 15 (2)-Selection of Pharmasistspreperation
of
merit
list-instead
of
yearwise or batchwise inter se-senioritycombined merit list prepared-out of 900
only 300 candidate questioned the action
of authorities-appellate court-confining
the
relief
only
within
those
300
candidates-directed for preparation of
their
merit
list-following
inter
se
seniority
with
batch/yearwise-now
petitioners
being
encouraged
with
Division
Bench
division-after
considerable
time
seeking
same
treatment-held-No relief can be granted.

Held: Para 15,16 & 17

Apart from the aforesaid, as already
observed above, any tinkering with the
order
would
amount
to
either
modification or as sitting in appeal over
624 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the said judgment. Both are against
judicial discipline.

Several judgments have been placed
before the Court to canvass that the
benefit of the judgment rendered in
similarly situated cases can be extended
to the petitioners also but, as already
mentioned, these aspects have to be
examined by that very Division Bench or
the appellate court.

For the foregoing reasons, no relief can
be
granted
to
the
petitioners
and
accordingly writ petitions are dismissed,
subject
to
the
observations
made
hereinabove.
Case law discussed:
(1969 (1) SCC 185), (1989 (2) SCC 356), (JT
1991 (4) SC 160), (2006 (11) SCC 464).

(Delivered by Hon'ble D.P. Singh, J.)

1. Heard counsel for the petitioner
and the learned Standing Counsel.

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.

2. 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.

3.

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).

4. 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 & others vs.
State of U.P. & 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 serice in
reference to clause (a) of sub-rule (3) of
2 All] Dinesh Kumar Singh and others V. State of U.P. and others
625
rule 5 vis-a-vis the post of Pharmacist
under 1980 Rules."

5. 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 interse 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
has
appeared
in
Diploma Examination." (highlighting
supplied)

6. Out of those 800 petitioners, only
about 300 of the petitioners preferred
different special appeals against the said
judgment and a Division Bench of this
Court clubbed all of them together with
the leading petition being Special Appeal
No. 377 of 2008 (Prem Chandra & others
vs. State of U.P. & others), and upheld the
interpretation of Rule 15(2) made by the
learned Single in the following worlds :

"We have considered the arguments
from both the sides with respect to
interpretation of Rules 14 and 15 and in
particular Rule 15(2) and we find that the
interpretation given by the learned Single
Judge cannot be faulted on the ground
that these Rules require continuation of
process of selection for all subsequent
years from amongst the batches of
Pharmacists, who have secured diploma
in the provious years and also in the
subsequent years."

7. However, when confronted with
the past practice adopted with regard to
batch and yearwise preparation of merit
list, though it found that :

"The appellants though, under the
rules were entitled to be appointed on the
basis of their merit, even in the presence
of diploma holders of prior batch of lower
merit, but were denied consideration for
appointment because of the procedure
adopted by the State Government in
making the appointments, with the result,
persons of comparatively lower merit
were appointed and are in service,
whereas the appellants stand ousted even
from the zone of consideration."
626 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Considering various factors, including the
fact that only 300 diploma holders were
before it and 766 were to be filled up, it
observed as under :

"We are informed that about 300
diploma holders falling in the same
category are before this Court who have
been fighting for their cause and,
therefore, we feel that the directives
issued in these appeals be confined only
to those persons who are vigilant and
have approached this Court and those
who have succumbed to their ouster,
would not get the benefit of this order.
We may also clarify that as per the
statistics given by the appellants' counsel,
there were about 800 writ petitioners but
after the decision of the learned Single
Judge, only about 300 persons are before
this Court and rest of them left themselves
to their fate. Such persons cannot be
entitled to the benefit of this order."

and went on to hold :

"We also take notice of the fact that
under the present advertisement, 766
vacancies have been notified, therefore,
the present appellants, who are much less
in number, can also be considered for
appointment, leaving sizeable vacancies
for the rest of the candidates.
We, therefore, dispose of these
special appeals with the direction that the
appellants' cases shall be considered in
accordance with the pre-existing practice
by considering their appointment on the
basis of their merit taking their batches
into consideration as was being done
earlier but this process would be
available only for the appellants and they
would be accommodated if they are
otherwise
found
eligible
and
the
remaining vacancies would be filled in by
following Rule 15(2) strictly as directed
by the learned Single Judge."

8. It is apparent from the aforesaid
judgment that it was clearly stipulated that
the benefit of batch and yearwise
preparation of merit list would be
confined to only those about 300 persons
who had preferred special appeals and all
others were left out to face selections on
merit irrespective of the year in which
they
had
cleared
their
Diploma
examination.

9. The petitioners in this bunch of
writ petitions are those diploma holders
who
did
not
even
challenge
the
advertisement of 2007 within a reasonable
time nor they preferred any special
appeal, but after rendering of the
judgment in the special appeal on
4.5.2009, they have preferred the present
writ petitions claiming that they should
also be extended the benefit which was
extended to those 300 appellants.

10. The question is, whether, in the
teeth of such directions by the Division
Bench, the present petitioners can be
extended the benefit ?

11. They have relied upon several
orders of the Court including by this
Court where writ petitions were disposed
off extending the benefit of the Division
Bench judgment, on the concession by the
Standing Counsel that they were identical
matters. No decision needs to be cited for
the proposition that an order passed on
concession cannot be treated as a
precedent. They have also relied upon an
order of another Division Bench in
Special Appeal No.1139 of 2008 (Ashok
Rai & others vs. State of U.P. & others)
decided on 9.6.2009. The said Division
2 All] Dinesh Kumar Singh and others V. State of U.P. and others
627
Bench disposed off the appeal only in
terms of the judgment dated 4.5.2009.
Neither the said Division Bench nor any
other Single Judge examined this aspect
that the benefit of year and batchwise
preparation of merit list had been
confined only to the appellants of Prem
Chandra's case.

12. Once the directions are clear and
explicit, any deviation with the order of
the learned Single Judge as affirmed by a
reasoned order of the Division Bench can
only
be
done
either
through
a
modification or clarification application
but by the same Division Bench under the
High Court Rules, or, in appeal by the
appellate court.

13. However, it is urged that by
restricting the benefit to only the
appellants in Prem Chandra's case (supra),
the petitioners have been discriminated. It
has to be borne in mind that Rule 15(2) of
1980 Rules provides merit as the criteria
across the board for selection to the post
of Pharmacist and which interpretation of
the learned Single Judge has been upheld
by the Division Bench. However, in view
of the prevailing past practice adopted by
the Government by adopting batch or
yearwise seniority, the Court granted
concession to only those appellants who
had challenged the judgment of the
learned Single Judge. This methodology
of applying the principles of laches and
acquiescence for depriving the concession
or benefit of a decision is not new and has
been applied right from 1969, if not
earlier. In the case of Durga Prasad vs.
Chief
Controller
of
Imports
and
Exports (1969 (1) SCC 185) and
followed up by the Apex Court in Rup
Diamonds vs. Union of India (1989 (2)
SCC 356) the Apex Court denied the
benefit of the decision to "fence sitters "
who had not raised any challenge at
earliest point of time. Even in Service
Jurisprudence, the principle has been
employed extensively. In Ashok alias
Somanna Gowda & another vs. State of
Karnataka & others (JT 1991 (4) SC
160) with regard to selection of Assistant
Engineers, the Supreme Court held that
allotment of 33% of total marks for
interview was illegal, and though it
extended the benefit of the ratio to the
candidates before it but it denied the
benefit to other candidates who had not
approached the Court within time in the
following words :

"Learned
counsel
appearing
on
behalf of the State of Karnataka pointed
out that there are many other candidates
who had secured much higher marks than
the appellants in case the above criteria is
applied for selection. In view of the fact
that appointments under the impugned
Rules were made as back as in 1987 and
only
the
present
appellants
had
approached the Tribunal for relief, the
case of other candidates cannot be
considered as they never approached for
redress within reasonable time. We are
thus inclined to grant relief only to the
present appellants who were vigilant in
making grievance and approaching the
Tribunal in time."

14. Recently, the Apex Court,
summarising the statement of law of
various decisions, in the case of U.P.Jal
Nigam & another vs. Jaswant Singh &
another (2006 (11) SCC 464) refused to
extend the benefit of its earlier decision
increasing the retirement age of the
employees of Jal Nigam, in the following
words:-
628 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
"In view of the statement of law as
summarised above, the respondents are
guilty
since
the
respondents
have
acquiesced in accepting the retirement
and did not challenge the same in time. If
they would have been vigilant enough,
they could have filed writ petitions as
others did in the matter. Therefore,
whenever it appears that the claimants lost
time or whiled it away such cases, the
court should be very slow in granting the
relief to the incumbent. Secondly, it has
also to be taken into consideration the
question of acquiescence or waiver on the
part of the incumbent whether other
parties are going to be prejudiced if the
relief is granted..."

15. Apart from the aforesaid, as
already observed above, any tinkering
with the order would amount to either
modification or as sitting in appeal over
the said judgment. Both are against
judicial discipline.

16. Several judgments have been
placed before the Court to canvass that
the benefit of the judgment rendered in
similarly situated cases can be extended to
the petitioners also but, as already
mentioned, these aspects have to be
examined by that very Division Bench or
the appellate court.

17. For the foregoing reasons, no
relief can be granted to the petitioners and
accordingly writ petitions are dismissed,
subject
to
the
observations
made
hereinabove.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2009

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.33837 of 2000

Raja Ram and others
 ...Petitioners
Versus
Smt. Son Kali and others ...Respondents

Counsel for the Petitioners:
Sri Kamlesh Mishra
Sri S.C. Verma
Sri Murtaza Ali

Counsel for the Respondents:
Sri V.K. Singh
Sri K.K. Singh
Sri Nisaruddin
Sri B. Pant
Sri N.K. Srivastava
Sri V.K. Mishra
Sri S.K. Kulshrestha
Sri N.K. Sharma
S.C.

U.P. Zamindari Abolition Act 184 (4)-
Cancellation of Patta-without publication
in News Paper, allotment made in
disregard of order of preference-held
illegal-direction issued to all the District
Magistrate-ensure the advertisement of
Patta in two news papers prior two week
of allotment following the order of
preference-also to follow the procedure
of Section 27 (3) of ceiling Act.

Held: Para 14

Accordingly,
it
is
directed
that
henceforth no allotment of gaon sabha
land under U.P.Z.A.&L.R. Act and the
Rules framed thereunder shall be made
unless date of allotment is advertised in
some such daily newspaper which has
got wide circulation in the area in
question (e.g. Dainik Jagran and Amar