Of U.P. Thru. Prin. Secy. Deptt. Of Medical And Ramesh Chandra Baghel and others v. State of U.P. and others & on 21 Feb 2025

Judgment

] (1) All the appeals, except Special No. 72 of 2024 and Special Appeal No. 81 of 2024, are directed against the judgment and order dated 08.11.2023 passed in Writ-A No. 9784 of 2015 (Ramesh Chandra Baghel and others v. State of U.P. and others) whereby the writ petitions filed by the appellants-petitioners were dismissed. Following the judgment and order dated

08.11.2023 passed in the bunch of writ petitions, Writ-A No. 638 of 2024 filed by the appellants-petitioners was dismissed vide judgment and order date 30.01.2024, whereas Writ-A No. Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions 6061 of 2022 filed by the appellants-petitioners was dismissed vide judgment and order dated 18.03.2024. (2) Since all the Special Appeals arise out of similar matter, they are taken up together for common orders. (3)

Heard Sri Sandeep Dixit, learned Senior Advocate assisted by Sri Vijay Dixit, Sri Devam Shukla, Sri Mukul Kumar Singh, Ms. Jyoti Rajpoor, Ms. Nisha Tiwari, Sri Pravin Kumar Singh, Sri Manish Vaish, Ms. Anupama Bhadauria, Sri Anoop Kumar Upadhyay, Sri Arvind Kumar Shukla, Sri Avinash Chandra and Sri Anil Kumar Pandey, learned Counsel appearing for the petitioners in their respective writ petitions and Sri Nishant Shukla, learned Additional Chief Standing Counsel for the State-respondents and Sri Gaurav Mehrotra and Sri Utsav Mishra, learned Counsel for the contesting respondents. (4) On account of delay in filing the Special Appeal (Defective) Nos. 38 of 2024, 39 of 2024, 57 of 2024, 63 of 2024, 78 of 2024, 84 of 2024 and 105 of 2024 ranging from 30 to 80 days, applications for condonation of delay supported by affidavits have been filed in the respective Special Appeals. (5) As there is a slight delay in filing the aforesaid appeals, learned counsel for the respondents have no objection and the applications for condonation of delay in filing the Special Appeal (Defective) Nos. 38 of 2024, 39 of 2024, 57 of 2024, 63 of 2024, 78 of 2024, 84 of 2024 and 105 of 2024 are allowed and the delay in filing the aforesaid Special Appeals is condoned. (6) The grievance of the appellants-petitioners is that since all the appellants-petitioners are qualified Diploma Holders in Pharmacy and are registered with the Uttar Pradesh Pharmacy Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions Council Lucknow, during the period 2003 to 2007, they have to be appointed on the post of Pharmacists (Allopathy) as prescribed under U.P. Pharmacist Service Rules, 1980 [here-in- after referred to as ‘Rules, 1980’] at par with the Pharmacists appointed till 2002. (7) The case has a chequered history. Indisputably, all the appellants-petitioners are Diploma Holders, who have obtained their Diploma in Pharmacy from a recognized institution and are registered with the State Pharmacy Council, Uttar Pradesh. Till formation of the Uttar Pradesh Procedure for Direct Recruitment for Group ‘D’ Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2002 [briefly, it is referred to as ’Rules, 2002’], they were governed by the Uttar Pradesh Pharmacists Service Rules, 1980 [here-in-after referred to as ‘Rules, 1980’]. Rules 8 and 15 of the Rules, 1980 are relevant for redressal of the grievance of the appellants- petitioners which are as under:- “8. Academic Qualification – A candidate for direct recruitment to the posts in the service must possess diploma in Pharmacy from a recognized institution and must also be registered with the State Pharmacy Council, Uttar Pradesh.” Procedure for Direct Recruitment – (1) For “15. the purpose of recruitment, there shall be constituted a Selection Committee comprising –

1. Additional Director, to be nominated by the Director;

2. Joint Director, dealing with establishment of Pharmacists;

3. Secretary, State Pharmacy Council. The Selection Committee shall prepare a list (2) of candidates in order of merit, as disclosed by marks obtained by them in the diploma examination. If two Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions or more candidates obtain equal marks, the Selection Committee shall arrange their names in order of merit on the basis of their general suitability for the post. The number of the names in the list shall be larger (but not larger by more than 25 per cent) than the number of the vacancies. The list so prepared shall hold good for one year only. The Director shall forward the requisite (3) number of the names in order of merit, from the list to the concerned appointing authority/ appointing authorities.” (8) When the State Government issued an advertisement for 765 vacancies of Pharmacist (Allopathic) on 12.11.2007 with the stipulation that the recruitment shall be done in accordance with Rules, 2002 as amended by 2003 amending Rules read with Rules, 1980, all the appellants-petitioners applied against those vacancies being fully eligible for being appointed on the post of Pharmacists as per Rules. However, a large number of persons being aggrieved by the action of the State Government filed Writ Petitions before this Court, the leading petition being Writ Petition No. 7699 (S/S) of 2007, which was disposed of vide judgment and order dated 23.05.2008. The operative portion of the judgment and order reads as under:- “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 Group '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 Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions 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.” (9) The judgment and order dated 23.05.2008 passed by the learned Single Judge was assailed by the aggrieved persons by filing Special Appeals, the leading appeal being Special Appeal No. 377 of 2008, which was disposed of vide judgment and order dated 04.05.2009. The relevant portion of the aforesaid judgment and order is quoted as under:- “A peculiar and a piquant situation has arisen in the instant case, where it is not the case, that an aspirant of the higher post in service on becoming eligible for promotion or a person seeking direct appointment on the date when he is to be considered for such a promotion or appointment, seeks to interpret the rule of recruitment in a particular manner, looking to the past practice, to his advantage, but here is a case, where the appellants were excluded from consideration of their appointment at the relevant time earlier, by interpreting the rule to their disadvantage, and were made to believe that likewise their candidature shall be considered later on, for which various circulars and instructions were also issued by the State Government, but when their turn came for getting employment, they are again being put out of consideration, by interpreting the rule in a different manner. Injustice thus, caused to them, in the hands of the State Government, therefore, requires to be corrected. We also take notice of the fact that under the present advertisement, 766 (sic 765) 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. Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions 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. At this juncture, Dr. L.P. Misra placed before the Court U.P. Lok Seva (Bharti Ke Liye Aayu Seema Ka Shithilikaran) Niyamawali, 1992, in support of his submission that the appellants are entitled to be given the age relaxation. We without entering into this question in detail, do observe that the age relaxation be given to the appellants as per rules, if they have crossed the age limit for the reason that right from the year 1998, no selection has been made and in certain cases, age relaxation has been granted. The selection process be completed within three months from the date of receipt of a certified copy of this order. All the special appeals are disposed of accordingly.” (10) After passing of the judgment and order dated 04.05.2009 in Special Appeal No. 377 of 2008 and other connected Appeals, a large number of writ petitions were filed before this Court. In some of the writ petitions, the benefit of the judgment and order dated 04.05.2009 was extended, whereas in other matters, the writ petitions were dismissed. (11) Against the judgment and order dated 04.05.2009 passed in Special Appeal No. 377 of 2008 and other connected Special Appeals, the State of U.P. and the writ petitioners, whose writ petitions were dismissed by the learned Single Judge holding Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions that benefit of judgment and order dated 04.05.2009 could not be extended to them, filed their respective Special Leave Petitions before the Apex Court. (12) Hon’ble Supreme Court while dismissing the aforesaid Special Leave Petitions held in para - 44 of the judgment in State of Uttar Pradesh and another v. Santosh Kumar Mishra and another [(2010) 9 SCC 52] as under:- “44. We, therefore, are of the view that in the facts of this case no interference is called for with the decision of the Division Bench of the High Court impugned in these SLPs. The 12 special leave petitions filed by the State of U.P. being SLPs Nos. 20558, 20769, 20774, 20785, 20901, 20908, 22655, 22678, 22732, 22749, 22851, 22955 of 2009, along with SLPs (C) Nos. 25647 and 25649, filed by Vaibhan Kumar Singh and others and Brijesth Kumar Sharma and others, whose cases are similar to that of the State of U.P. are dismissed, but without any order as to costs.” (13) After the aforesaid judgment of the Apex Court in Santosh Kumar Mishra (supra), a select list was prepared on

14.02.2011 which was again challenged by way of several writ petitions, of which the lead matter was Writ Petition No. 1186 of 2011 filed by Pawan Kumar and others against the State of U.P. and others. On 04.03.2011, the High Court stayed the select list prepared on 14.02.2011 and directed not to make any appointments therefrom. At the same time, in the contempt proceedings, the High Court directed the official respondents to prepare a fresth select list on 12.07.2011. (14) When the stay order dated 04.03.2011 and the order dated

12.07.2011 passed in the contempt proceedings reached the Apex Court by filing Special Leave Petitions, Hon’ble Supreme Court in Kishor Kumar and others v. Pradeep Shukla and Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions others [(2012) 4 SCC 103] dismissed the Special Leave Petitions. The relevant portion of the judgment and order reads as under:- “12. It is in such background that these Special Leave Petitions came to be filed by candidates who had not been selected for appointment on the ground that despite having better merit, they had not been selected for filling up the 766 (sic. 765) vacancies.

13. The submissions which had been previously urged when the earlier batch of Special Leave were disposed of, were reiterated during the hearing of these Special Leave Petitions. An attempt was made to re-open the issue by urging that the Petitioners have been over-looked, despite their better merit.

14. We are unable to accept the said submissions on account of the fact that the matter has already been decided and it has been directed by this Court, following the decision of the Division Bench of the High Court, that the candidates could be appointed against the vacancies in order of their inter-se seniority as per the vacancies available in each year. That being so and having regard to the earlier decision of this Court referred to hereinabove, we see no reason to interfere with the order of the Division Bench of the High Court.

15. The Special Leave Petitions are, accordingly, dismissed, but without any order as to costs. All the pending applications shall stand disposed of by virtue of this judgment. As we have observed hereinabove, all candidates, who were similarly situated as the original petitioners, would be entitled to the benefit of the judgment delivered in State of U.P. & Anr. Vs. Santosh Kumar Mishra & Ors. (supra).” (15) While disposing of the Contempt Petition (C) No. 347 of 2010 and other connected petitions, the Apex Court has passed the following order dated 27.11.2012:- Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions “In Contempt Petition (C) No. 347 of 2010, the complaint of petitioners is that despite our directions in S.L.P. (C) No. 20558 of 2009 contained in Paragraph 32 of the said judgment, some of the candidates, who were covered by the decision, had been left out of consideration when the lists were finalized by the State Government with regard to the accommodation of the Pharmacists, both in regard to those who had qualified earlier than 2002 when the new Rules were introduced, and those who were amenable to the new Rules. The directions contained in our aforesaid judgment were quite clear that we were treating those candidates, who had obtained Diploma in Pharmacy prior to 2002, as one single group, and that it was also our intention that the benefits which were to be given to the petitioners before us were also to be given to similarly situated candidates. Today, when the matter is taken up, Mr. Irshad Ahmad, learned counsel appearing for the State of Uttar Pradesh and also for the alleged contemnors, has submitted that an affidavit has been filed by the Director General, Medical and Health Services, Uttar Pradesh, wherein in Paragraph 7, it has been indicated that, in terms of our judgment, the respondents had prepared a merit list concerning candidates, who had obtained Diplomas upto the year 1998, but that the respondents-contemnors were ready and willing to take into consideration those candidates who were similarly circumstances (sic. circumstanced) upto the year 2002, when the new Scheme was sought to be introduced. Mr. Irshad Ahmad has also submitted that the said undertaking given to the Court shall be duly implemented within two months from date in keeping with the vacancies available. However, this should not be interpreted to mean that those who cannot be accommodated now will accommodated prior to those candidates who come within the zone of consideration by virtue of the Scheme 2002. The second part of the list, which has been submitted on behalf of the Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions State, shall not be given effect to, until these directions have been complied with. All the contempt petitions are disposed of accordingly.” (16) The directions issued by the Apex Court in the case of Santosh Kumar Mishra (supra) have further been clarified in the case of Donesh Rajput and others v. Pradeep Kumar Shukla and others [(2015) 1 SCC 628] in the following paragraphs:- “26. When this Court held that the benefit should be extended to similarly placed persons who were to be accommodated, what it really meant to state was that those who responded to the advertisement made on 12.11.2007, by which applications were called for filling up the post of 765 vacancies of Pharmacists, were to be considered only by following the Page No. 19Of 2 IA NSO.4-5/13 , 5-6/14 in Cont. Petn. 269/12 procedure prescribed under Rules 14 and 15 of the Rules of 1980. Certainly, without following the relevant Rules, namely, 14 and 15 and ignoring the requirements contained in the advertisement dated 12.11.2007, no candidate can be considered for being appointed to the post of Pharmacist. In other words, for a person to claim himself to be similarly placed, i.e., at par with the writ petitioners, namely, the appellants before the Division Bench of the High Court and the private respondents in the Special Leave Petition in Santosh Kumar Mishra (supra), primarily they should have applied in response to the advertisement dated 12.11.2007. If they had not responded to the said advertisement by filing the appropriate applications, they cannot subsequently be heard to say that they were all similarly placed and that therefore, the State of Uttar Pradesh should consider them as similarly placed candidates like that of the private respondents in the Special Leave Petition, for being considered for the post of Pharmacists, merely because they belonged to some of the batches of 1998 to 2002. Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions therefore, Law cannot,

27. Such a claim made on behalf of any of the candidates, much less the 360 candidates who staked their claim before the Principal Secretary, countenanced. The Principal Secretary, Law, having now reported in his report dated 27.9.2013 that none of the 360 candidates were the applicants, there is no scope for treating them as similarly placed persons as held in Santosh Kumar Page No. 20 Of 2 IA NSO.4- 5/13, 5-6/14 in Cont. Petn. 269/12 Mishra (supra). Consequently, their claim now raised before us cannot also be acceded to. We, therefore, make it clear that neither the above 360 persons referred to in the report of Principal Secretary, Law dated 27.09.2013 or any other candidate who did not apply in response 12.11.2007 claiming himself to be a member of the batch 1998 to 2002, can seek for consideration of his claim at par with the private respondents in Santosh Kumar Mishra (supra) in order to consider his claim for conferring the benefit granted in the said judgment. the advertisement

28. Once we steer clear of the said position in I.A. Nos.1-2 of 2014 in Contempt Petition(C) No.115/2014, the only other aspect to be considered is as to whether there is any case made out for contempt as alleged in Contempt Petition(C) No.115/2014. The said Contempt Petition has been filed by some of the candidates of the year 2002. It is alleged that in spite of the judgment of this Court in Santosh Kumar Mishra (supra), as well as, subsequent orders passed in various Contempt Petitions including the order dated 29.04.2013, the respondent State has failed to fill up the vacancies and, therefore, they are liable to be proceeded against for contempt of judgment of this Court dated 03.8.2010 passed in Special Leave Petition(C) No.20558/2009.

29. In the light of our order passed in Petition(C) I.A.No.5/2014 No.269/2012 and I.A. Nos.1-2 of 2014 in Contempt Petition(C) No.115/2014, we are in Contempt Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions convinced that for the present, the allegation of contempt made in Contempt Petition(C) No.115/2014 cannot survive. Therefore, the said Contempt Petition is closed in the light of order passed in I.A.Nos.1-2 of 2014 and our directions in I.A. No.5/2014.

30. The State of Uttar Pradesh is directed to conclude the process of ascertainment of vacancies and fill up the remaining vacancies in accordance with the judgment of this Court dated 03.08.2010 in Santosh Kumar Mishra (supra) and in accordance with the clarification now made in this judgment. In the light of the present orders now passed, we do not find any scope for passing any orders in the rest of the matters, mentioned in this Court’s order dated 14.02.2014 which are disposed of. Accordingly I.As. are also disposed of. No costs.” (17) In the contempt petition (C) No. 725 of 2020, the Director General, Medial Health, Lucknow filed an affidavit dated

04.04.2024 stating that the department in compliance of the order dated 03.08.2010 has given appointment to Pharmacists upto the year 2002. Thereafter, it has been decided that in terms of the Government Order dated 07.12.2020, further appointments will be made by the Uttar Pradesh Subordinate Services Selection Board, Lucknow and the Board has been requested accordingly. (18) During the course of arguments, it has been informed by the learned Additional Chief Standing Counsel to the Court that all the Pharmacists (Allopathic) who had offered their candidature against the advertisement dated 12.11.2007 and belonged upto 2002 batch, have been appointed in accordance with the per- existing practice i.e., batch-wise merit and 5,327 candidates have been appointed upto the 2002 batch. Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions (19) Thereafter, few of the appellants herein had approached the Apex Court for grant of similar benefit by filing Writ Petition (C) No. 171 of 2013 and three other connected petitions under Article 32 of the Constitution of India. The Apex Court disposed off the said Writ petitions as withdrawn vide order

03.12.2024 which reads as under:- “1. Learned counsel appearing for the petitioner(s) seek permission of this Court to withdraw these petitions with liberty to the petitioner(s) to approach the High Court by filing an appropriate petition.

2. Permission sought for is granted.

3. The writ petitions are disposed of as withdrawn with liberty to the petitioner(s) to approach the High Court by filing an appropriate petition.” (20) In view of the above, the scope left for the appellants- petitioners is very limited. (21) Precise submission of the learned Counsel for the appellants- petitioners is that the appellants-petitioners who have done Diploma in Pharmacy during the period 2003-2007 have not been granted the similar benefit, though they are on similar footing and are similarly circumstanced persons. (22) In this regard, learned counsel for the appellants-petitioners has pointed out that no finding has been recorded by the learned Single Judge on the grounds raised by the appellants-petitioners in their respective petitions for seeking benefit of the batch- wise merit criteria as has been granted to the Pharmacists upto the year 2002 by the Apex Court and without considering the prayer made in the writ petitions, learned Single Judge has outrightly rejected their prayer. Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions (23) According to the learned counsel for the appellants-petitioners, they are covered by the ratio of the judgment and order dated

03.08.2010 passed in the cases of Santosh Kumar Mishra (supra) and Donesh Rajput (supra); rather, the case of the appellants-petitioners is that they are similarly situated persons who have obtained Diploma in Pharmacy during the period 2003 to 2007 and have also applied against the vacancies advertised in the year 2007. In the aforesaid cases, the Apex Court has held that a candidate cannot be subjected to discrimination while interpreting the Rule to their disadvantage at two different stages. (24) Another lacuna has been pointed out by the learned counsel for the appellants-petitioners that the provisions of Rule 15 of the Rules, 1980 will not apply without considering the averments of the appellants-petitioners that by virtue of provisions of Regulation 6 (1) of the Regulations, 2015 selection has to be made as per Service Rules. (25) The learned counsel for the appellants-petitioners has further submitted that even otherwise, the appellants-petitioners are eligible and entitled for grant of benefits as has been granted to the Pharmacists of 2002 batch by the Apex Court on the same analogy that the appellants who have applied as against the 2007 advertisement have not been permitted to participate in the process of selection in view of the fact that as per the past practice the appointment has to be made on the basis of batch- wise merit and inspite of the fact that the appellants-petitioners were higher in merit they were not considered and persons upto the year 2002 as per batch-wise merit policy have been given appointment. Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions (26) The learned counsel for the appellants-petitioners has submitted that the appellants-petitioners are waiting for their turn to be considered for appointments as per the provisions of Rules, 1980 since the date they have applied as against the advertisement of 2007, but they were not considered even though they are having higher in merit and marks than the persons of earlier batch because the Pharmacists upto the year 2002 were considered as per policy of batch-wise merit and now the appellants-petitioners cannot be suited as they are similarly situated to the Pharmacists of 2002 batch who have applied as against the advertisement of 2007. (27) Lastly, it has been submitted that the act of the opposite parties is in violation of the provisions of Articles 14 and 16 of the Constitution of India for adopting different criteria of selection with respect to the same set of persons, i.e., the persons who have applied against the advertisement of 2007 for the post of Pharmacists (Allopathic) in the State of U.P. (28) It is in these circumstances, learned counsel for the appellants- petitioners have prayed that the judgment and order dated

08.11.2023 is liable to be set aside and they may be granted relief as has been granted by the Apex Court to the Pharmacists of the batch of 2002. (29) Per contra, the learned Additional Chief Standing Counsel submitted that the orders passed in the cases of Santosh Kumar Mishra and Donesh Rajput (supra) by the Apex Court have been complied by the State Government in its letter and spirit. Elaborating his submissions, he has stated that all the Pharmacists who had offered their candidature against the advertisement dated 12.11.2007 and belonged upto 2002 batch, have been appointed in accordance with the pre-existing Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions practice, i.e., batch-wise merit and 5,327 persons have been appointed upto 2002 batch, in light of the orders passed by the Apex Court from time-to-time in various cases. Moreover, on an undertaking given by the learned Counsel appearing for the State Government that upto 2002 batch, all Pharmacists shall be given appointment, if they had applied against the advertisement dated 12.11.2007. (30) Learned State Counsel further submitted that on framing of Rules, 2002 which were amended in 2003, a stipulation had been mentioned in the advertisement dated 12.11.2007 which matter has been set at rest by the Apex Court. Once the Rules, 2002 have come into force, the appellants-petitioners cannot take a plea to appoint them in line with the pre-existing practice and similarly situated persons. (31) Lastly, he has brought to our notice that the learned Single Judge has considered all aspects of the matter. The impugned Judgment has been assailed by some of the appellants- petitioners before the Apex Court in Special Leave to Appeal (C) Nos. 15284-15285 of 2024 and the SLPs were dismissed vide order dated 15.07.2024 on the ground of no interference. (32) We have considered the submissions made by the learned counsel for the parties and perused the material placed on record. (33) Twin conditions mentioned in Santosh Kumar Mishra (supra) are that a candidate should be a member of batch 1998 to 2002 and, he should have applied against the posts advertised vide advertisement dated 12.11.2007. Thereafter, number of orders have been passed by the Apex Court which are enumerated in the foregoing paragraphs of the instant judgment. Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions (34) A perusal of the impugned judgment and order dated

08.11.2023 reveals that on scrutiny of all records, learned Single Judge has observed in paragraph - 21 of the judgment and order dated 08.11.2023 that all the appellants-petitioners are not fulfilling both the mandatory conditions, indicated above. The relevant portion of the judgment of the Writ Court reads as under:- “20. Based upon the facts aforesaid as also the principles related to pleading and proof, this Court is of the view that all the petitioners are not fulfilling both the two mandatory conditions, indicated above, and as such, the petitioners of this bunch of petitions are neither entitled to benefit of batchwise-merit, a principle earlier adopted by the department for recruitment on the posts of Pharmacist, nor they are entitled to get the benefit of the judgment of the Hon'ble Apex Court passed in the case of Santosh Kumar Mishra (Supra). Question No.(a), framed above, is answered accordingly.

21. It would not be out of place to note that Rule 15 of the Rules of 1980 does not provide batchwise-merit. On the other hand, it provides that the Selection Committee should prepare a merit list on the basis of marks obtained in the diploma course. Meaning thereby, irrespective of batch, the merit list should be prepared of applicants/candidates after considering the marks obtained in diploma course.” [Emphasis added] (35) Thus, it cannot be said that the learned Single Judge has not considered the pleas raised by the appellants-petitioners. (36) It has been vehemently urged before us by the learned counsel for the appellants-petitioners that since all the appellants- petitioners are similarly situated persons, they may be granted benefit of the judgments passed in Santosh Kumar Mishra Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions (supra) and Donesh Rajput (supra). More over, the Apex Court has directed in Kishor Kumar and others (supra) that all candidates, who were similarly situated as the original petitioners, would be entitled to the benefit of the judgment delivered in Santosh Kumar Mishra (supra). (37) The said benefit has been extended by the Apex Court in the above mentioned order that on an undertaking given by the State Government, the Apex Court directed that a merit list be prepared upto the year 2002 as the respondents-contemnors were ready and willing to take into consideration those candidates who were similarly circumstanced upto the year 2002, when the new Scheme was sought to be introduced. (38) The most vital aspect of the matter is that against the impugned judgment and order dated 08.11.2023, the petitioners of Writ-A No. 6808 of 2021 and Writ-A No. 2187 of 2022 had filed Special Leave Petitions (C) Nos. 15284-15285 of 2024 wherein the Apex Court declined to interfere in the matter and dismissed the S.L.Ps. accordingly vide order dated 15.07.2024. So, the plea taken by the learned counsel for the appellants-petitioners that they shall be granted the relief as has been granted to the appellants-petitioners upto the batch 2002 is not sustainable and is liable to be rejected. (39) Astonishingly, the Pharmacists did not raise their grouse when the Rules, 2002 were framed and they waited till 2007 when an advertisement was issued with the stipulation that the recruitment shall be conducted strictly in accordance with Rules, 2002 and the amended Rules, 2003. (40) Considering the peculiar facts and circumstances, a number of orders have been passed in this regard and the matter went upto the Apex Court, the Pharmacists who belonged upto the batch Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions of 2002, have been granted benefit, if applied against the advertisement. (41) When the matter has been set at rest by the Apex Court, another round of litigation has come into place to grant benefit to the similarly situated persons. From the date of framing of Rules, 2002, recruitment of Pharmacists has not been done till date. (42) Though the Pharmacists of the batch upto 1998 have been granted benefit by a Division Bench of this Court, but the said benefit has been granted to the Pharmacists upto 2002 batch on an undertaking given by the State Counsel. An affidavit dated

04.04.2024 has been filed by the Director General stating that in compliance of the order dated 03.08.2010 passed in Santosh Kumar Mishra (supra), appointments to Pharmacists upto 2002 have been given. It is also stated that in terms of the Government Order dated 07.12.2020 appointments in future shall be made by the Uttar Pradesh Subordinate Service Selection Board and the Board has been required to do so vide letter dated 06.12.2023. (43) Since the decisions taken by the State Government are purely policy decisions, they have to be examined in light of the catena of judgments passed by the Apex Court where the scope of interference by the Courts in matters of policy is well established. (44) Judicial review is the cornerstone of constitutionalism and is a part of the basic structure of our Constitution. Despite this understanding, the Supreme Court has time and again reiterated how, by way of judicial review, policy decisions of the State should not be interfered with unless they are grossly arbitrary or irrational as there is a need to maintain separation of powers. Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions (45) In Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. v. Union of India & Ors., (1981) 1 SCC 568, the Apex Court has observed as under:- challenged "35. A pragmatic approach to social justice compels us to interpret constitutional provisions, including those like Articles 32 and 226, with a view to see that effective policing of the corridors of power is carried out by the court until other ombudsman arrangements — a problem with which Parliament has been wrestling for too long — emerges. I have dwelt at a little length on this policy aspect and the court process because the learned Attorney-General petitioner's locus standi either qua worker or qua citizen to question in court the wrongdoings of the public sector although he maintained that what had been done by the Corporation was both bona fide and correct. We certainly agree that judicial interference with the administration cannot be meticulous in our Montesquien system of separation of powers. The court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the Directorate of a government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super-auditor, take the Board of Directors to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules of public administration." (46) In Directorate of Film Festivals & Ors. v. Gaurav Ashwin Jain & Ors., (2007) 4 SCC 737, the Apex Court had observed as follows:- "16. The scope of judicial review of governmental policy is now well defined. Courts do not and Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. ...." (47) In Indian Railway Catering and Tourism Corporation Ltd. v. Indian Railway Major and Minor Caterers Association and Ors., (2011) 12 SCC 792, the Apex Court held that the policy decisions of the Government should not be interfered with unless the policy is contrary to provisions of statutory rules or of the Constitution. In the said case, no illegality or unconstitutionality had been shown and the Apex Court held as under:- "2. By the impugned order, the High Court has interfered with the Catering Policy of 2005 in respect of reservations. By now it is a well-settled principle of law that policy decisions of the Government should not be interfered with in a routine manner unless the policy is contrary to the provisions of statutory rules or of the Constitution. Nothing has been brought to our notice that the Policy is contrary to the provisions of the statutory rules or the Constitution. For this simple reason, we set aside the order of the High Court impugned herein." Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions (48) Recently, in Jacob Puliyel v. Union of India and Ors., 2022 SCC OnLine SC 533, though the Supreme Court was broadly examining policy decisions pertaining to health, it had observed that in exercise of their judicial review, Courts should not ordinarily interfere with the policy decisions of the Executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness, etc. The relevant portion of the judgment stating the same is as under:- "21. We shall now proceed to analyse the precedents of this Court on the ambit of judicial review of public policies relating to health. It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary." Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions (49) For the reasons stated above, we are of the view that the learned counsel for the appellants-petitioners has failed to point any illegality or infirmity in the impugned judgment and order dated

08.11.2023 and as such, no fault can be attached to the impugned judgment and order dated 08.11.2023. More over, dismissal of SLPs filed against the impugned judgment and order dated 08.11.2023 by the Apex Court without a leave to challenge the order of the Writ Court by filing an Intra-Court Appeal also makes out a ground for not interfering in the order of the Writ Court. (50) In view of what has been stated above, more particularly in light of the order dated 15.07.2024 passed by the Apex Court in the SLPs filed against the judgment and order dated 08.11.2023, all the Special Appeals are dismissed. (51) No order as to costs. . (Subhash Vidyarthi, J.) (Attau Rahman Masoodi, J.) Order Date :- 21.02.2025 lakshman Ramesh Chandra Baghel and others v. State of U.P. and others & 21 other connected petitions