LUCKNOW vs Counsel for Appellant(s) on 15 Dec 2025

Judgment

9. Special Appeal No. 204 of 2017: Krishna Chandra Shukla and Anr. Inre 3295 S/S 2014 Versus State of U.P. Thru. Prin.secy. Medical and Education and Anr. Special Appeal No. 205 of 2017: Vindeshwari Prasad Pandey and 2 others Inre 3325 S/S 2014 Versus State of U.P. Thru. Prin.secy. Medical and Education and Anr. Special Appeal No. 206 of 2017: Indra Jeet Dubey and Anr. Inre 3280 S/S 2014 Versus State of U.P. Thru. Prin.secy. Medical and Education and Anr. Special Appeal No. 207 of 2017: Prahlad Verma and 2 others Inre 3245 S/S 2014 Versus State of U.P. Thru. Prin.secy. Medical and Education and Anr. Special Appeal No. 216 of 2017: Ajay Kumar Singh and 3 others Versus State of U.P. Through Principal Secretary Medical and Health S Special Appeal No. 236 of 2017: Ram Singh Vemra and 36 others State of U.P. Through Principal Secretary and another Versus Special Appeal No. 260 of 2017: Kailash Nath Pandey and 25 others State of U.P. Thru. Prin.secy. Medical Education and Anr. Special Appeal Defective No. 223 of 2017: Vinod Kumar Mishra and 15 others Versus Versus State of U.P. Through Principal Secretary Medical Education Special Appeal Defective No. 239 of 2017: Amar Singh Verma and 2 others State of U.P. Through Principal Secretary Medical Education

10. Special Appeal Defective No. 255 of 2017: Versus SPLA No. 200 of 2017 Jitendra Kumar Mishra 2 Versus State of U.P. Thru Prin.secy.deptt.of Medical and Edu. and Ors.

11. Special Appeal Defective No. 256 of 2017: Asha Kanojia and 3 others Versus State of U.P. Thru. Prin.secy. Medical and Education and Anr.

12. Special Appeal Defective No. 257 of 2017: Sayeed Ahmad and Ors Versus State of U.P Thru Prin Secy Medical and Edu. Lko and Anr

13. Special Appeal Defective No. 263 of 2017: Lal Bachan Singh Yada and 11 Ors. Versus State of U.P. Thru Prin.secy.medical and Edu.civil Sectt.and Ors

14. Special Appeal Defective No. 264 of 2017: Istiaq and 2 Ors. Versus State of U.P. Thru Prin.secy.medical and Edu.civil Sectt.and Ors

15. Special Appeal Defective No. 15 of 2018: Ajay Kumar and others Versus State of U.p.throu Prin.secy.medical Education Lko.and Anr.

16. Special Appeal Defective No. 120 of 2018: Om Prakash Tiwari and Ors. Versus State of U.P. through Prin.secy.medical and Education Lko.and Ors ------------------------------------------------------------------------------------------- Court No. - 1 HON'BLE RAJAN ROY, J. HON'BLE RAJEEV BHARTI, J.

1. Heard learned counsel for the appellants, learned Standing Counsel

appearing for the State-respondents and Shri Pankaj Shukla, learned counsel appearing for respondents no.5, 11 and 58 (in Special Appeal No.200 of 2017).

2. After hearing the parties, what comes out is that though the rules governing the conditions of service as also recruitment to the post of Pharmacist (Ayurvedic & Unani) are Uttar Pradesh Ayurvedic and Unani Pharmacists Service Rules, 1991 (hereinafter referred to as 'Rules 1991') which were different from the corresponding rules applicable to Pharmacists (Allopathic), but considering the earlier decision rendered by a Division Bench of this Court and Hon'ble the Supreme Court as is referred in the impugned judgment and also on account of the Subordinate Services 3 SPLA No. 200 of 2017 Selection Commission having been wound up on account of which no selection and appointment could be made for the post of Pharmacists (Ayurvedic & Unani), the benefit of the aforesaid judgments rendered in the case of Pharmacists (Allopathic) was extended the Pharmacists (Ayurvedic & Unani) for the purposes of filling up the said posts by a Single Judge Bench of this Court, as referred in the impugned judgment, in pursuance to which, on the same lines, a Government Order dated

23.05.2023 was issued by the State Government. Consequently, an advertisement was issued and as per averments made in para 16, at least in the leading writ petition, the appellants before us claimed to have applied for being considered for selection and appointment in pursuance to the said advertisement which was to be held on the same lines as the Pharmacist (Allopathic) that is batchwise selection, meaning thereby, those who had done their diplomas in Pharmacy (Ayurvedic & Unani) earlier would be considered first. This was irrespective of the Rules of 1991 in the circumstances noticed hereinabove. Now the appellants claim to have applied in pursuance to the aforesaid advertisement issued in May, 2014 and at least in one of the writ petitions, out of which Special Appeal No.200/2017 has arisen while responding to para 16 of the writ petition in the counter affidavit in para 30 it was stated that only the incumbents whose names were covered under the order dated 21.07.2019 (that is the judgment of the learned Single Judge by which the Pharmacists (Ayurvedic & Unani) were given the benefit of the earlier judgment rendered in the case of Pharmacists (Allopathic) passed by the High Court were taken in the list dated 03.07.2014. This list dated 03.07.2014 is obviously the list of persons who were called for counselling. The appellants are aggrieved by the fact that they were not called for counselling.

3. The impugned judgment does not at all delve on the aspect as to whether the appellants had applied for being considered for selection and appointment as Pharmacists (Ayurvedic & Unani) in pursuance to the advertisement issued in May, 2014, referred hereinabove, and whether they 4 SPLA No. 200 of 2017 were within the permissible age for being considered for selection and appointment or not. For some inexplicable reason, the learned Single Judge proceeded to consider the earlier advertisement of 2007 and the subsequent orders passed by Hon'ble the Supreme Court in contempt proceedings arising out of the earlier judgment passed by in respect of Pharmacists (Allopathic) wherein it was observed that the benefit of the judgment would be applicable only to those who were "similarly situated" and the learned Single Judge has opined that the appellants not having applied in pursuance to the advertisement of 2007 were not similarly situated. However, in the same vein the learned Single Judge has also observed that so far as the judgment dated 21.07.2009, it is incorrect to say that the said judgment was obtained by misleading the learned Single Judge as different set of rules were applicable. We fail to understand that if it is so then why the appellants claim was rejected on the ground of delay and laches because the claim of the appellants was that they had applied in pursuance to the advertisement issued in May 2014 and not 2007. In fact, the advertisement of 2007 was in respect of Pharmacists (Allopathic) and not in respect of Pharmacists (Ayurvedic and Unani). If the appellants had applied in pursuance to the advertisement made in May 2014 then they were entitled to be considered for selection and appointment in terms of judgment dated 21.07.2009 rendered in a bunch of writ petitions, the leading petition being Writ Petition No.1962 (S/S) of 2007 which is related to Pharmacists (Ayurvedic & Unani) and the Government Order dated 23.05.2014 in pursuance to which the advertisement dated May 2014 was issued. However, this aspect escaped consideration by the learned Single Judge who proceeded on an incorrect factual premise that at least the appellants were required to apply in pursuance to the advertisement of 2007, which they were not, as, the said advertisement did not pertain to the post of Pharmacists (Ayurvedic & Unani). The learned Single Judge has also erred in proceeding to consider the judgment of Hon'ble the Supreme Court in the contempt proceedings pertaining to the earlier decisions rendered by it relating to Pharmacists 5 SPLA No. 200 of 2017 (Allopathic) as the appellants who have done their diplomas in Pharmacy (Ayurvedic & Unani) were not extended benefit of the said decisions in pursuance to the orders of Hon'ble the Supreme Court, but were extended the said benefit under the judgment of learned Single Judge dated 21.07.2009, referred hereinabove, which was never challenged by the State rather the State complied it and issued the Government Order dated 23.05.2014 and was required to hold the selection in pursuance thereof. Therefore, to this extent the judgment of the learned Single Judge is apparently erroneous.

4. At this stage, we may put it on record that the State has filed an application seeking review of the judgment dated 21.07.2009. Therefore, whatever observations are being made by us are subject to the result of the said review petition, if it is still pending.

5. Now the point to be considered by us in these proceedings and as was put by us to the counsel for the appellants is, firstly, what was the maximum age for applying for being considered for selection and appointment to the post of Pharmacists (Ayurvedic & Unani) in pursuance to the advertisement dated May 2014. The counsel for the appellants fairly submitted that under the Uttar Pradesh Ayurvedic and Unani Pharmacists Service Rules, 1991 and the Uttar Pradesh Recruitment in Services (Age Limit) Rules, 1972 applicable to posts under the State, the maximum age was 32 years. On being asked as to what is the age of the appellants as of now, learned counsel for the appellants submitted that their age was more than 54 years then we asked the learned counsel for the appellants that what was the age of the appellants in 2014 whether it was below 32 years he fairly submitted that it was not so. However, they again invited our attention to the judgment dated 21.07.2009, by which the benefit of the judgment passed in the case of the Pharmacists (Allopathic) was extended to them under which age relaxation had been provided by Hon'ble the Supreme Court. In this context, we have noticed the Government Order dated 23.05.2014 in pursuance to which the selection was made and we find that para 4 of it reads as under:- 6 SPLA No. 200 of 2017 "4- मा० उ(cid:267)च (cid:281)यायालय इलाहाबाद, लखनऊ ब(cid:517)च, लखनऊ के उ(cid:472) पािरत िनण(cid:259)य िदनांक 21.07.09 के अनुपालन म(cid:517) स(cid:286)यक िवचारोपरा(cid:281)त मुझे यह कहने का िनदेश (cid:631)आ है िक उ(cid:472)ानुसार पंजीकृ त बेरोजगार आयुव(cid:518)िदक एवं यूनानी फामा(cid:259)िस(cid:293)ट(cid:523) को आयुव(cid:518)िदक एवं यूनानी िवभाग म(cid:517) उ(cid:472) उि(cid:289)लिखत (cid:498)व(cid:293)थानुसार सूची तैयार करते हये िन(cid:286)नानुसार सेवायोिजत िकये जाने का िनण(cid:259)य िलया गया है। (1) बेरोजगार आयुव(cid:518)िदक तथा यूनानी फामा(cid:259)िस(cid:293)ट(cid:523) (आयुव(cid:518)िदक तथा यूनानी ित(cid:284)बी िचिक(cid:277)सा प(cid:490)ित बोड(cid:259), उ०(cid:352)०, लखनऊ म(cid:517) पंजीकृ त) को वत(cid:259)मान म(cid:517) फामा(cid:259)िस(cid:293)ट(cid:523) के िर(cid:472) पद(cid:523) पर भैषिजक (फामा(cid:259)िस(cid:293)ट) सेवा िनयमावली 1980 के िनयम 15 (2) म(cid:517) िनिहत (cid:498)व(cid:293)था के अ(cid:281)तग(cid:259)त बैचवाइज / मेिरटवाइज काउि(cid:281)सल करके सेवायोिजत िकया जाये। (2) भैषिजक (फामा(cid:259)िस(cid:293)ट) सेवा िनयमावली 1980 के िनयम-15(2) के अनुसार िरि(cid:472)य(cid:523) की सं(cid:263)या से अिधकतम 25 (cid:352)ितशत की सं(cid:263)या म(cid:517) नाम(cid:523) की सूची तैयार की जायेगी, जोिक 01 वष(cid:259) के िलए मा(cid:281)य होगी त(cid:279)नुसार िरि(cid:472)य(cid:523) के सापे(cid:87) िनयुि(cid:472)यां की जायेगी। (3) उ०(cid:352)० लोक सेवा (भत(cid:515) के िलये आयु सीमा का िशिथलीकरण) िनयमावली 1992 के िनयम-3 म(cid:517) िनिहत (cid:498)व(cid:293)था के अनुसार उ(cid:472) अ(cid:285)यिथय(cid:523) की भत(cid:515) के िलए िनधा(cid:259)िरत आयु सीमा म(cid:517) िशिथलीकरण भी िकया जाये।"

6. Now as it evident from para 4(3) of the aforesaid Government Order dated

23.05.2014, relaxation in age was to be extended to the candidates to be considered in pursuance to the selection for the posts in question in terms of Rule 3 of the U.P. Public Services (Relaxation of Age Limit for Recruitment) Rules, 1992 (hereinafter referred to as 'Rules 1992'). According to the aforesaid rules, the minimum age limit was 18 years and maximum age was 35 years.

7. The first and foremost question to be considered is as to whether the appellants were within the age limit, if not, whether the age limit was relaxed, if so to what extent, especially if, some of the appellants belonged to the OBC, SC/ST or Women category. None of these aspects had been considered by the learned Single Judge.

8. We, accordingly, set aside the impugned judgment dated 12.04.2017, consequently the writ petitions would stand restored to their original number and will now be reconsidered in the light of what has been observed hereinabove. Firstly, it would be considered as to whether the appellants had applied for being considered for selection in pursuance to the advertisement in question or not, if they had, then, what was the reason for not calling them 7 SPLA No. 200 of 2017 for counselling. It would also be considered as to whether at the time of applying for selection and appointment, they had crossed the maximum age limit, even after relaxation, if any, granted under the Rules of 1992, referred hereinabove or not? If they had crossed the maximum age limit, as aforesaid, then of course they would have no case even before the learned Single Judge. We would have considered and decided this aspect of the matter, but for the reason that the State counsel is also at sea on this issue. Requisite pleadings are also not on record. One of the issues to be considered by the learned Single Judge would be as to what is the age of the appellants as of now and how far they can be considered or appointed on the post of Pharmacists (Ayurvedic & Unani). Whether it would be a futile exercise to consider the matter any further. We would have considered this aspect but for the fact that the counsel for the appellants is not in a position to inform us accurately as to the age of the appellants.

9. We have also not been informed at the bar by either of the parties including the counsel for the private respondents as to whether the private respondents were selected and appointed against vacancies which were advertised for the post of Pharmacists (Ayurvedic & Unani) or not. If not, what is their age as of now, whether they can now be considered for selection and appointment as ultimately if all the private parties have crossed the maximum age limit, it would be a futile exercise unless of course the learned Single Judge finds that any right of theirs has been violated, which can be suitably compensated. Therefore, this aspect will also have to be seen. At this stage it is informed that most of the appellants and private respondents are working on those very vacancies, albeit, on contractual basis may be because of the entire matter are getting entangled in litigation; whether fresh selections should be allowed to be held, would also be a matter to be considered by the learned Single Judge.

10. Let fresh pleadings be filed in the writ petitions in the light of the aforesaid, before the learned Single Judge, within three weeks from today. 8 SPLA No. 200 of 2017 The writ petitions now stand restored consequent to our judgment and shall be listed before the learned Single Judge on 19.01.2026 amongst first ten cases.

11. The appeals are allowed but only in part in the aforesaid terms.

12. Since all the special appeals are being allowed, consequently the intervention applications filed in some of the connected special appeals stand disposed of in the aforesaid terms. December 15, 2025 Anand/- (Rajeev Bharti,J.) (Rajan Roy,J.) ANAND KUMAR SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench