Sandeep Kumar Srivastava and Another v. State of U.P. Thru. Prin. Secy. /Addl. Chief Secy. Ayush Deptt. Lko. and 4 Others

Allahabad HC13 Sept 2024WRIA/7845/2024

Case brief

AI extract

What is this about?

Petitioners sought quashing of an Ayurvedic Pharmacist recruitment advertisement to claim batch-wise preference. Court noted existing interim stay on selection of same post, directed parties to file affidavits, and listed for admission while refusing to pass a separate order yet.

What the court decided

AI extract

Sandeep Kumar Srivastava and Another vs… — Pension and Retirement Benefits | Allahabad HC (2024)

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Court No. - 4 Case :- WRIT - A No. - 7845 of 2024 Petitioner :- Sandeep Kumar Srivastava And Another Respondent :- State Of U.P. Thru. Prin. Secy. /Addl. Chief Secy. Ayush Deptt. Lko. And 4 Others Counsel for Petitioner :- Lalendra Pratap Singh Counsel for Respondent :- C.S.C.,Gaurav Mehrotra

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Hon'ble Rajesh Singh Chauhan,J.

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1. Heard Sri Lalendra Pratap Singh, learned counsel for the petitioners, Ms. Jyotsana Pal, learned Chief Standing CounselIV for the State and Sri Saurabh Shankar Srivastava, learned Advocate, who has filed Vakalatnama on behalf of opposite party No.5, the same is taken on record.

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2. By means of this writ petition, the petitioners have prayed for the following reliefs:-

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"(i) to issue a writ, order or direction in the nature of certiorari thereby quashing the impugned advertisement dated 01.02.2024 issued by the opposite party No.5, contained as Annexure No.1 to the writ petition, whereby selection on the post of Ayurvedic Pharmacist is going to be held, in contrary to the Ayurvedic Pharmacist Service Rules, 1980, as well as the Government Order dated 23.05.2014.

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(ii) to issue a writ, order or direction in the nature of mandamus thereby commanding and directing to the opposite parties, more specially opposite party Nos.1 & 2 to grant/ consider appointment to the petitioners' on the post of Ayurvedic Pharmacist against the existing vacancies, on the basis of batch-wise preference/ preference on the basis of merit, within the same batch, in specific period to be specified by this Hon'ble Court."

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3. Attention has been drawn towards Annexure No.19 which is an order dated 20.08.2024 passed by this Court in Writ-A No.12290 of 2024; Kanhaiya Lal Chauhan and 153 others vs. State of U.P. & others, which reads as under:-

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"The case of the petitioners is that they have passed their Diploma in Ayurvedic Pharmacy between the years 2011 to 2014. There is a system of batch-wise preference in the recruitment of Ayurvedic Pharmasists pursuant to the judgment of this Court dated 21.07.2009, passed in Writ Petition No. 1962 of 2007 and the connected matters. The last mentioned judgment of the Lucknow Bench followed the decision of this Court dated 04.05.2009, reported in 2009 SCC OnLine All 480, which was upheld by the Supreme Court in State of U.P. v. Santosh Kumar Mishra, (2010) 9 SCC 52.

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The grievance of the petitioners is that the respondents filled up the vacancies during the recruitment year 2014 and the petitioner's were excluded by limiting the candidature to candidates who had passed their Diploma up to the year 2009. The recruitment during the aforesaid year was on the basis of batch-wise preference and within the batch, on the basis of inter se merit in the Diploma Course. Thereafter, no further

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recruitment was held until the recruitment now notified.

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In between, the petitioners, who had faced exclusion during the earlier recruitment, filed Writ-A No. 16411 of 2023, which was disposed of in terms of the order dated 26.10.2023, directing the respondents to consider the petitioners' claim and decide it by a reasoned and speaking order. It was rejected. The petitioners, who were claiming consideration against the existing vacancies, challenged the order dated 29.12.2023, rejecting their claim by means of Writ Petition No. 2425 of 2024 and the connected matters. This petition was allowed vide judgment and order dated 06.03.2024, directing thus:

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"9. From perusal of the same, it is clear that there is no consideration insofar as the aforesaid judgments. In the instructions provided today, nothing has been stated that why the judgments were not taken into consideration by the respondent no.1 while passing the order dated 29.12.2023. Specific quarry has been made by this Court that whether the aforesaid judgments were taken into consideration by the respondent no.1 while passing the order impugned or not, it is very fairly argued that the aforesaid judgments were not taken into consideration. This fact is also clear from perusal of the instructions.

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10. In this view of the matter, the order dated 29.12.2023 is liable to be set aside and is hereby set aside. The State Government is directed to pass a fresh order strictly in accordance with law within a period of three weeks from today.

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11. Insofar as the prayer no.(b) is concerned, it is made clear that proceedings pursuant to the advertisement in question will be subject to the final outcome of the order passed by the respondent no.1."

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There were some other litigation in between and finally by the impugned order dated 24.05.2024, the petitioners' claim for consideration on the basis of batch-wise preference and within the same batch, on the basis of inter se merit in the Diploma Course, was rejected.

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The petitioners have also challenged the advertisement dated 01.02.2024, which advertises fresh vacancies for the post of Ayurvedic Pharmacists, excluding the criteria of batch-wise preference and within the batch, merit-wise preference.

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The submission of Mr. Ashok Khare, learned Senior Advocate assisted by Mr. Himanshu Singh, learned Counsel is that once on an earlier occasion, the rule for selection that was applied was batch-wise preference and within the batch, merit preference in the qualifying Diploma to adopt a different criteria during a later selection would be arbitrary and unreasonable. For the principle, he has placed reliance upon the decision of the Supreme Court relating to a Allopathic Pharmacist in State of U.P. v. Santosh Kumar Mishra, (2010) 9 SCC 52.

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Prima facie, the contention appears to be correct.

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Issue notice.

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Notice on behalf respondent nos. 1 to 3 is accepted by Mr. Girijesh Kumar Tripathi, learned Additional Chief Standing Counsel.

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Notice on behalf of respondent no.4 is accepted by Mr. Akhilesh Kumar Maurya, learned Counsel holding brief of Mr. Siddharth Singhal, learned Counsel.

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Both the learned Counsel are granted three weeks' time to file counter affidavits.

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List for admission on 10.09.2024 along with a report regarding status of pleadings.

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Till the next date of listing, selection pursuant to the advertisement dated 01.02.2024, issued by the U.P. Subordinate Services Selection Board, Lucknow shall not be held.

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Let this order be communicated to the Secretary, U.P. Subordinate Services Selection Commission, Lucknow through the Civil Judge (Senior Division), Lucknow by the Registrar (Compliance) within 48 hours."

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4. Learned counsel for the petitioners has stated that an interim order has been granted by this Court at Allahabad to the effect that the selection pursuant to the advertisement dated 01.02.2024 issued by the Selection Board, Lucknow shall not be held and the petitioners have also assailed the same advertisement vide prayer No.1, therefore, similar benefit may be extended to the present petitioners.

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5. Be that as it may, this Court vide order dated 20.08.2024 granted interim order directing the Selection Board that selection shall not be held pursuant to the advertisement dated 01.02.2024, there is no need to pass a separate order in this writ petition as that order would automatically be applicable in those cases where the same prayer has been prayed. However, so far as if the petitioners are entitled for the similar benefit, that fact may be tested after calling upon the counter affidavit from the opposite parties.

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6. Therefore, the opposite parties are directed to file their respective counter affidavit within a period of three weeks. Rejoinder affidavit, if any, may be filed within one week thereafter.

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7. List this case in the week commencing 14.10.2024 within top ten cases.

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8. When the case is next listed, name of Sri Shaurabh Shankar Srivastava, learned Advocate be printed in the cause list as counsel for the opposite parties.

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[Rajesh Singh Chauhan,J.]

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Order Date :- 13.9.2024 Suresh/

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Digitally signed by :- SURESH CHANDRA High Court of Judicature at Allahabad, Lucknow Bench

Sandeep Kumar Srivastava and Another v. State of U.P. Thru. Prin. Secy. /Addl. Chief Secy. Ayush Deptt. Lko. and 4 Others

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Sandeep Kumar Srivastava and Another v. State of U.P. Thru. Prin. Secy. /Addl. Chief Secy. Ayush Deptt. Lko. and 4 Others

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