High Court
Case Details
WP(C) 3619/2006 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY JUDGMENT AND ORDER(ORAL)
Legal Reasoning
Heard Mr. M. Dutta, learned counsel appearing for the petitioners. The State re spondents are represented by Ms. K. Devi, the learned Govt. Advocate. The priva te Respondent Nos.4 to 12 (barring Respondent Nos.6 & 12) are represented by Adv ocate Mr. T.J. Mahanta. Although service is affected, two of the private respon dents have not appeared. The petitioners are qualified and registered Pharmacists and were aspira 2. nts for Govt. jobs. They challenge the order dated 16.07.2006 (Annexure-4), whe reby the private respondents were appointed as Pharmacists in the ESI Dispensari es under the Labour and Employment Department. The appointment of the private r espondents is being questioned on the ground that advertisement was not issued t o enable participation of the interested aspirants and since the selection proce ss was confined to only limited candidates sponsored by the Employment Exchange. The legality of selection is also being questioned by contending that the sele ction was made by an incompetent committee. 3. In exercise of powers under proviso of Article 309, the Assam Pharmacist Services Rules, 1986 (hereinafter referred to as the (cid:28)Pharmacist Rules (cid:29)) was no tified to regulate recruitment of Pharmacist. Here Rule 6 provides for direct re cruitment on the basis of selection made by the Board constituted under Rule 13. Advertisement to invite application from interested candidates is envisaged by the Rules and selection is required to be made by the Board, by taking into acc ount the merit of the participating candidates. Once the select list prepared b y the Board is approved, appointment of the selected candidates can be made by t he appointing authority. Rule 13(2) prescribes constitution of district wise se lection boards for the post of Pharmacist and the Board is to be headed by the C hief Medical and Health Officer with the Addl. Chief Medical and Health Officer and the Sub-Divisional Medical and Health Officer as members of the selection Bo ard. 4. While the State has not filed any counter affidavit, it appears from the affidavit-in-opposition filed by the private respondents on 23.03.2007 that, em ployment to the vacancies in the ESI Dispensaries under the Labour and Employmen t Department was initiated through the letter dated 04.02.2006, whereby the Dire ctor of Employment was requested for notifying the vacancies through the Distric t Employment Exchange and to invite applications from eligible candidates by pu blishing the notice in the Notice Board. Although the draft advertisement was also enclosed, it appears that advertisement in newspaper was not published and the recruitment exercise was confined to the candidates sponsored by the Employm ent Exchanges. 5. The applicants who were sponsored by the Employment Exchange were asked to appear in the office of the Administrative Medical Officer, ESI Scheme, Guwah ati for the scheduled interview on 25th and 26th February,2006 and Mr. T.J. Mah anta, learned counsel submits that private respondents appeared in the scheduled viva voce, in pursuant to the WT dated 21.02.2006(Annexure-5). Thereafter, through the impugned order dated 16.07.2006, subject to poli 6. ce verification, the 9(nine) private respondents were temporarily appointed as P harmacists in various ESI Dispensaries in the State. 7. Although, the private respondents contend that they were appointed throu gh competitive process, what is apparent here is that the competition was confin ed to a handful of candidates sponsored by the Employment Exchange. The Supreme Court in Excise Superintendent Malkapatnam, Krishna District, A.P. Vs K.B.N. Visweshwara Rao reported in (1996) 6 SCC 216 has declared that restricting the s election only to candidates sponsored by Employment Exchange is improper and wid er competition should be ensured by publication of the recruitment notice in new spapers with wide circulation. Such procedure was declared by the Supreme Court to be consistent with the requirement of Article 14 & 16 of the Constitution. 8. Even the Pharmacist Rules require issuance of advertisement for direct recruitment and it doesn’t permit appointment by limiting the competition to on ly those who are sponsored by the Employment Exchange. Since the Recruitment Ru les made under Article 309 specifies the procedure for recruitment of Pharmacis t, it is obvious that procedure for appointment has to conform to the Pharmacis t Rules as was held by the Supreme Court in the Secretary, State of Karnataka Vs . Umadevi reported in (2006) 4 SCC 1. 9. Therefore, if one bears in mind the recruitment process envisaged by the Pharmacist Rules, it is apparent that the appointment of private respondents we re made through an illegal process which is inconsistent with the Recruitment Ru les. Here since the competition was limited by confining the selection to only the sponsored candidates, it is clear that the requirement of Article 14 & 16 ha d been infringed. As has been held in Umadevi (Supra), those who were appointed through such illegal process cannot claim any equitable consideration.
Decision
10. In the above circumstances, having regard to the fact that the exercise was not preceded by newspaper advertisement to enable participation of all inter ested aspirants, I am of the view that appointment of the private respondents ca nnot legally be sustained. It is declared accordingly. 11. However, considering the likely difficulties that might be faced by the ESIs where the private respondents are posted, the State authorities are permitt ed to recruit Pharmacists through due process, by adhering to the procedure pr escribed by Rule 6 of the Pharmacist Rules. The candidature of the private resp ondents and the writ petitioners if offered, should not be rejected on the groun d of age bar and their age should be condoned. The selection should be made on m erit by the competent Selection Board specified in Rule 13 of the Pharmacist Rul es. When the exercise is completed, the private respondents must make way for ap pointment of the selected candidates. Unless they get selected and become eligi ble for regular appointment, the service of the temporary pharmacists should be discontinued after 6 months from today as the regular recruitment process starti ng with advertisement is expected to take this time period. It is ordered accor dingly. 12. st. The case stands allowed with the above direction without any order on co