B.K. Sharma, J.@mdashIn all the writ petitions, the challenge made is to the methodology and procedure adopted towards selection and appointment of Pharmacist in the Department of Health and Family Welfare, Government of Assam. The writ petitions being based on same set of facts and the relief sought for being one and the same, they have been heard analogously and are being disposed of by this common judgment and order.
2. The Petitioners involved in this proceedings are all unsuccessful candidates. They had participated in the particular selection process initiated by the Respondents for appointment of Pharmacist, but having failed to qualify in the said selection, have questioned the very selection in which they had participated taking a chance for favourable consideration.
3. The grounds on which the challenge to the selection has been made can be summarised as follows:
(i) As per Rule 6 of the Assam Pharmacist Services Rules, 1986, direct recruitment to the category of Pharmacist is required to be made by the ''appointing authority'' on the basis of the selection made by the Board and approved by the appointing authority. Rule 2 of the Rules defines the appointing authority as the Chief Medical & Health Officer in the category of Pharmacist. However, in the instant case the selection was conducted by the Director of Health Services in violation of the said Rule. Further, the selection was not conducted district wise, but was conducted for the State as a whole.
(ii) The selection having been conducted only through process of oral interview, there was room for manipulation. According to the Petitioners, the selection ought to have been conducted through the process of both written test ant oral interview.
(iii) The purported relaxation of the requirement for conducting the selecting district wise by the aforesaid appointing authority simply by issuing a notification was not in accordance with rules and thus, on this score alone the selection is required to be interfered with.
(iv) No reservation for woman and physically handicapped persons having been provided in the selection, same was vitiated and accordingly liable to be interfered with.
4. In the counter affidavit filed by the Respondents, it has been stated that the authority by invoking the clause relating to relaxation (Rule 26) relaxed the rules requiring district wise selection and to that effect necessary notification was also issued on the strength of which the selection was conducted centrally and State wise. It has been contended that the selection was conducted as per the provision of Rule 6 of the aforesaid Rules which does not provide for holding of any written examination. It is the stand of the Respondents that while conducting oral interview, the selection Board duly took note of the academic records of the candidates as envisaged under Rule 6 (d) of the Rules.
5. As regards to reservation for woman and physically handicapped persons, it has been stated in paragraph-6 of the counter affidavit that as no physical disabled candidates appeared in the interview/selection, no such candidate could be appointed. Referring to Assam Women (Reservation of Vacancies in Services and Posts) Rules, 2005, it has been stated that the woman candidates with requisite qualification are entitled to appointment against total posts numbering 86 and in fact, 21 successful women candidates were selected and appointed by the Directorate. It has also been stated that in case of deficiency in attaining the prescribed percentage, the slots can be carried forwarded as back log vacancies and same can be adjusted against future vacancies.
6. I have heard the learned Counsel appearing for the Petitioners namely, Mr. H.R.A. Chakraborty, learned senior counsel, Mr. M.A. Sheikh, Mr. A.R. Sikdar and Mr. B. Chakraborty, learned Counsel for appearing for the Petitioners. I have also heard Mr. D. Saikia, learned Standing counsel, Health Department alongwith Mr. B. Gogoi, learned Counsel representing the Health Department. Mr. S. Dutta and Mr. A.K. Hussain learned Counsel argued on behalf of the appointed candidates.
7. Learned Counsel for the Petitioners have placed reliance on the decisions reported in
8. In Inder Prakash Gupta (supra), the Apex Court dealing with binding effect of the service rules framed under Article 309 of the Constitution of India, held that the said rules being statutory in nature must be scrupulously followed by the authority. In Rajesh Kumar Gupta (supra), it has been observed that the writ petition against orders relating to selection for training of candidates for appointment as Assistant Teachers in Primary schools is maintainable even though the candidates whose names appeared in the selection list were not made parties to writ petitions. In the instant case, the selected candidates are party Respondents and thus, the question of non-joinder of necessary parties will not arise.
9. In Sankar Chandra Paul (supra), it has been held that when the particular office memorandum laying service guidelines is in conflict with statutory rules, the statutory rules will prevail over the office memorandum.
10. In the instant case, the appointing authority for the post of Pharmacist as per Rule 2 of the aforesaid Rules is the Chief Medical & Health Officer and the selection for the post is required to be carried out district wise. It is on this count, the Petitioners have contended that the particular relaxation of rules as notified vide notification dated 07.07.2007 (Annexure C to the counter affidavit) cannot go to the extent of vesting the authority to another authority which in the instant case is the Director of Health Services, Assam. For a ready reference, the Annexure-C notification dated 07.07.2007 is reproduced below:
Government of Assam
Health & Family Welfare (A) Department
Dispur: Guwahati-6
NOTIFICATION
Dated Dispur the 7th July, 2007
No. HLA. "1111/2001/Pt. VI/4: In continuation to this Department''s order No. HLA 1111/02/Pt. 1/200 dated 6th July, 2007 and in exercise of powers conferred under Rule 26 of the Assam Pharmacists Services Rules, 1986 (hereinafter called the Rules), the Governor of Assam is pleased to relax the requirement of Rule 13 (2) of the said Rules as it is in conflict with Rule 24 of the said Rules.
Sd/-
Secretary to the Government of Assam
Health & FW Dept.
11. In paragraph-5 of the counter affidavit, the State Respondents have stated that the Government of Assam in the Health & FW Deptt. relaxed Rule 13 (2) of the Assam Pharmacists Services Rules, 1986 noticing the conflict with Rule 24 of the said Rules. It has also been stated that the Selection Board was constituted vide order dated 06.07.2007 for selection of candidates for appointment of Pharmacist against the vacant posts communicated by the Government vide order dated 15.09.2006.
12. Rule 26 of the aforesaid Rules empowers the Government to relax the requirement of Rules. In case of there being any undue hardship in any particular case, the Government may dispense with or relax the requirement of the Rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in just and equitable manner. As per the proviso of Rule 26, the case of any person shall not be dealt with in any manner less favourable to him than that provided in any of these Rules.
13. The whole emphasis of the Rule of relaxation is to deal with the particular case in a just and equitable manner. In
5. The last point raised by Shri Garg was that the Central Government had no power to review its earlier orders as the rules do not vest the Government with any such power. Shri Garg relied on certain decisions of the Court in support of his submission: Patel Narishi Thakershi v. Pradyu-mansinghji Arjunsinghji; D.N. Roy v. State of Bihar and State of Assam v. J.N. Roy Biswas. All the cases cited by Shri Garg are cases Where the Government was exercising quasi-judicial power vested in them by statute. We do not think that the principle that the power to review must be conferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature. To extend the principle to pure administrative decisions would indeed lead to untoward and startling results. Surely, any Government must be free to alter its policy or its decisions in administrative matters. If they are to carry on their daily administration they cannot be hidebound by the rules and restrictions of judicial procedure though of course they are bound to obey all statutory requirements and also observe the principles of natural justice where rights of parties may be affected. Here again, we emphasise that if administrative decisions are reviewed, the decisions taken after review are subject to judicial review on all grounds on which an administrative decision may be questioned in a Court. We see no force in this submission of the learned Counsel. The appeal is, therefore, dismissed.
14. As per the requirement of Rule 6 of the aforesaid Rules, direct recruitment to the cadre of Pharmacist shall be made by the appointing authority which is the Chief Medical & Health Officer. Rule 24 of the Rules provides for mode of employment in terms of which members of the service shall be employed in such manner as the appointing authority may decide. Further provision made is that a member of the service shall be liable to be posted any where within the State of Assam or outside Assam or to any other department of the Government.
15. In the instant case, by the aforesaid notification dated 07.07.2007 the Government of Assam in the Health & FW Department invoked the power of relaxation as provided under Rule 26 of the Rules. By order dated 06.07.2007, the Government of Assam in the same department constituted a Selection Board for selection of candidates for the post of Pharmacist. The Selection Committee was headed by the Director of Health Services, Assam with six other members of the Health Department. By the said order the Government of Assam empowered the Chairman to conduct the interview in two groups simultaneously with the members indicated in the order. To that extent, the Rules requiring for appointment to be made district wise by the appointing authority stood relaxed.
16. In none of the writ petitions it has been pleaded that because of such relaxation there was any prejudice caused to the candidates in the matter of selection. In fact, all the Petitioners duly participated in the selection without raising any grievance. Now they have filed the writ petitions questioning the very selection conducted by the aforesaid Committee headed by the Chairman, i.e. the Director of Health Services.
17. Mr. M.A. Sheikh, learned Counsel for the Petitioner has additionally contended and the same has been supported by the other learned Counsel for the Petitioners that the selection ought not have been confined only to oral interview, but should have preceded by written examination to test the suitability of the candidates. A part from the fact that there is no requirement of holding of written examination for the post of Pharmacist, the Petitioners having participated in the selection process which was comprised of oral interview, cannot now turn around the same so as to question the very methodology adopted in the selection. They took a chance for favorable consideration and now after failing to qualify in the selection, cannot be allowed to take the plea that the selection is bad on account of same being only with oral interview.
18. As per the requirement of Rule 5 of the aforesaid Rules, the Selection Board is required to make selection by taking into account the academic record of the candidates and the performance in the interview. On perusal of the records produced by Mr. S. Saikia, learned Standing counsel, Health Department, what I find is that the aforesaid provision of the Rules was followed and in fact, the Selection Board allotted marks under different heads including the marks in the head of academic performance. It is on that basis the select list was prepared. Thus there was sufficient compliance of the provision of Rule 6 of the Rules.
19. As regards the plea that quota was not provided for woman and physically handicapped persons, the Respondents have cleared their stand in their counter affidavit about which mention has been made above. As against the categorical stand of the Respondents in their counter affidavit in paragraph-6 that there was no physically handicapped candidate in the selection/interview, the Petitioners have not responded to the same by filing any reply. As regards the percentage of woman, it is on record that altogether 21 successful women candidates have been selected and appointed. It is the further stand of the Respondents that in case of any shortage in percentage of woman quota, necessary carry forward formula will be adopted and the back log will be cleared against future vacancies.
20. The plea of the Petitioners that the Chief Medical & Health Officer being the appointing authority for the post of Pharmacist, the selection could not have been conducted by the authority constituted by the Government of Assam in the Health and FW Department cannot be accepted for yet another reasons. The appointing authority, i.e. Chief Medical & Health Officer is appointed by the Government of Assam. In the hierarchy, the Director of Health Services is the Head of the Directorate. The Government of Assam towards relaxing the Rules as empowered by Rule 26 of the aforesaid Rules, issued the above quoted notification dated 07.07.2007 empowering the Selection Board to conduct the selection State wise pursuant to which the said Selection Board conducted the selection. Thereafter, the appointments have been made and it is submitted that the selected candidates have been in the employment for the last four years.
21. In view of the above, I do not find any merit in the writ petitions and accordingly they are dismissed.
