Bilal Nazki, J.@mdashRespondent No. 4 herein filed an application u/s 19 of the Administrative Tribunals Act before the Andhra Pradesh Administrative Tribunal at Hyderabad. She sought setting aside of appointment of the Writ Petitioner as Pharmacist Grade-II on the ground that the Writ petitioner was not eligible for the post. The applicant contended that she was eligible under rules and she should have been appointed. The Tribunal allowed the Original Application, set aside the appointment of the Writ petitioner and directed the Selection Committee to make fresh selection to the post of Pharmacist Grade-II by considering the case of the applicant with other eligible candidates. Thereafter, the Writ petitioner filed a Review Petition before the Tribunal which was also dismissed by an order dated 5th May, 1998. The petitioner filed a Writ petition against that order also i.e., Writ Petition No. 17246 of 1998. This writ petition came to be dismissed by a Division Bench of this Court by order dated 23rd June, 1998, however, a review petition was filed before the Division Bench and the Division Bench allowed the review, recalled its order and admitted the writ petition for hearing.
2. Both the writ petitions are heard together. In order to decide these matters we refer to the facts given in the main order passed by the Tribunal in O.A.No. 7020/95.
3. The case of the applicant (4th respondent herein) was that, she had a first class diploma in pharmacy. She had been registered in A.P. Pharmacy Council under the Pharmacy Act, 1948 with certificate No. 15105 dated 17-12-1987. She had also registered her name with the Employment Exchange at Kakinada. She belonged to B.C(B) category. She had also passed her B.Sc. three year degree course in 1993. She had experience as Dispensing Druggist and Pharmacist and she was eligible to be appointed as Grade-II Pharmacist. A notification had been issued in newspapers on 24-7-95 calling applications for recruitment to the post of Pharmacist Grade-II and other posts. In response to this notification her name was sponsored to the appointing authority by the District Employment Officer, Kakinada. She was asked to submit her Bio-data and necessary Xerox copies as required by letter dated 29-7-95. She was issued a hall ticket. Examination was conducted on 22-8-95. She appeared in the Examination. She was confident of having secured good marks. In spite of having brilliant record she was not selected and her name was shown only in ''backlog vacancies ''at serial No. 26 under reserved category. She however came to know that 4th respondent in the O.A (hereinafter referred as ''Writ Petitioner'') had been selected contrary to the rules and the notification issued. She also came to know that his original certificates were not verified and he was allowed to sit in examination. She contended that the procedure adopted in his appointment was illegal, arbitrary and violative of Article 14 of the Constitution. According to the applicant the Writ petitioner was not a registered Pharmacist under Pharmacy Act, 1948 with A.P. Pharmacy Council at Hyderabad which was an essential and requisite condition for recruitment as Pharmacist Grade-II. Even the writ petitioner joined duty as Pharmacist Grade-II without producing the original certificates particularly registration certificate with A.P. Pharmacy Council. She had submitted representations to the 1st and 3rd respondents but there was no response.
4. So the only contention that was raised and decided by the Tribunal was that the Writ petitioner was not eligible to be appointed in terms of the relevant rules. In the counter-affidavit filed by the writ petitioner before the Tribunal it is stated that the certificates which were asked to be produced before the examination had been produced by him for verification. He further stated that the qualification required for filling up of the post of Pharmacist Grade-II is S.S.C or equivalent with diploma in Pharmacy. The District Employment Officer, Kakinada having been satisfied with the qualification of the writ petitioner and the applicant, had sponsored the names of both for appointment. He was permitted to appear in the written examination. A Selection Committee was constituted by the Government in terms of G.O.Ms.No. 455, dated 8-9-94 and he was selected. The writ petitioner had passed his S.S.C public examination in the year 1985. He obtained diploma in Pharmacy from Board of Pharmacy, Directorate of Medical Education Madras in the year 1991. The diploma obtained by him from the Government of Madras was duly recognized by Andhra Pradesh Government. Therefore, he contended that he was fully eligible to be appointed as Pharmacist Grade-II. The official respondents in the application before Tribunal contended that the writ petitioner was registered as Pharmacist under Pharmacy Council at Pondichery which was sufficient for appearing in the written examination. As he was a qualified pharmacist and was registered with the Pharmacy Council at Pondichery, he was permitted to appear for written examination by the District Selection Committee. However, after he was selected it was made clear that his selection was provisional and subject to production of certificate from A.P. Pharmacy Council. It was further directed that the appointing authority would appoint him only after submission of A.P. Pharmacy Council Certificate. The writ petitioner had filed his application with necessary fee of Rs. 300/- on 25-8-95 to the A.P. Pharmacy Council for registration.
5. The only question which is to be answered in the light of this factual position is, whether person who was not registered with A.P. Pharmacy Council on the date of selection or on the date of appointment was eligible to be appointed, or not.
6. The Tribunal has set aside the selection of the writ petitioner on the sole ground that on the date of selection and also on the date of appointment the writ petitioner was not having the requisite qualification for the appointment as he was not in possession of a registration certificate issued by A.P. Pharmacy Council. Relying on the judgment in 1997(7) Supreme Today 28 the Tribunal came to the conclusion that since the writ petitioner did not possess the requisite technical qualification on the date of submitting his application he was not eligible, therefore he should have not been appointed. Now, let us see what are the basic qualifications for appointment. The notification inviting applications was published on 23rd October, 1998. This advertisement under para-4 lays down the requisite qualification for Pharmacist Grade-II. It reads;
"4 Pharmacists Grade II: Must have completed 18 years of age as on 1-7-98, but should not cross 36 years. Along with pass in Intermediate, must have Diploma in Pharmacy in any of the recognized Institutes."
By going through this advertisement, we do not find that there was any requirement of having registration with A.P. Pharmacy Council. In the judgment of the Tribunal also it is nowhere mentioned that under what rules there is any requirement for a Pharmacist to get appointed in Andhra Pradesh to have a registration from A.P. Pharmacy Council. We have been taken through the Pharmacy Act, 1948. It is contended by the learned counsel for the respondents that, in terms of Section 42 of the Act there is a restriction on Dispensing by unregistered persons, therefore it is incumbent that a person before seeking appointment should be a registered pharmacist under the Act. u/s 2(i) ''registered pharmacist'' has been defined as;
"2(i) ''registered pharmacist'' means a person whose name is for the time being entered in the register of the State in which he is for the time being residing or carrying on his profession or business of pharmacy."
Under Section 15-A the Central Council has to maintain a register of pharmacists to be known as Central Register which shall contain the names of all persons for the time being entered in the register for a State. Each State has to supply to the Central Council five copies of the register of the State. This provision shows that, for a pharmacist it is necessary that he should be a registered pharmacist in terms of the Pharmacy Act, 1948. It is also necessary in terms of Section 2(i) that he should be a registered pharmacist in the State where he was residing for the time being or carrying on his profession.
7. It was nobody''s case that the petitioner had not the registration under the Pharmacy Act. He was a registered pharmacist in a State where according to him he was carrying on his profession. Now after his appointment in the State of Andhra Pradesh it was directed that appointment order should not be issued unless he gets a certificate of registration from the A.P. Pharmacy Council. It was stated in the counter that in terms of the rules he was entitled to the certificate and he had applied along with the fee, therefore the order of appointment was passed. It is further stated that this certificate had already been granted to him. Therefore, on the basis of Pharmacy Act we do not find that the writ petitioner was not eligible for appointment as Pharmacist.
8. Now let us have a look what Andhra Pradesh Medical Subordinate Service Rules which have been framed under G.O.Ms. No. 727, dated 26-3-1965 say. The mode of appointment of Pharmacist is given under Rule-2. Pharmacists are of two categories. Pharmacists Grade-I are to be appointed by promotion of Pharmacists in category-II or by direct recruitment or for special reasons recruitment by transfer from any other service. Pharmacists Grade-II are to be appointed by promotion of Compounders or direct recruitment or for special reasons recruitment by transfer from any other service. Rule-5 lays down that no person is eligible for appointment of class or category specified in Annexure to the rules unless he possesses qualifications specified in the corresponding entry thereof and Category-II Pharmacist has been mentioned in Annexure-II created under Rule-5. It lays down;
"Category 2: Pharmacists in other Government Medical Institutions including Medical Colleges. A diploma in pharmacy."
For category-1 pharmacist following qualifications have been laid down; Category 1 : Pharmacist in General Hospital in the State:- (1)(a) Minimum General Educational qualification prescribed in the schedule to the general rules; or
(b) Preferably a pass in P.U.C or any other equivalent examination of any institution under University Grants Commission with Physics, Chemistry and Natural Science as optional Subjects.
2 (a) A diploma in Pharmacy; or
(b) Preferably a degree of B.Sc. (Pharmacy) or B.Pharmacy of any recognized University.
(3) Practical experience in the working of Pharmacy approved by the State Pharmacy Council for a period of not less that (i) five years in the case of a person possessing the qualification specified under items (1) (a) above, and (ii) Two years in the case of a person possessing qualification specified under item (2)(b) above."
Neither in the Category I nor in the Category-II of Pharmacists there is any requirement under the Rules that a Pharmacist should be registered with the State Council of Pharmacy. The basic qualification for category II is a diploma in Pharmacy. The requirement of registration comes only under the Pharmacy Act to which we have already referred. Therefore, it could have not been said by any stretch of imagination that the petitioner was not eligible on the basis of his qualification on the date of making application or selection or appointment. The requirement of registration in a particular State has relevance to place of residence or carrying on profession. It has no relevance to the eligibility for being a Pharmacist. The writ petitioner decidedly and admittedly was qualified pharmacist when he applied and when he was appointed. It is true that he was not a registered pharmacist in A.P. Pharmacy Council but before his appointment a condition was laid down that the appointing authority should appoint him only after his fulfilling the requisite qualification. It was stated;
"It is further indicated that the candidate with Hall Ticket No. 133 has not produced his original A.P. Pharmacy Council registration, therefore, his selection is provisional subject to production of registration certificate. The appointing authority should appoint him only after fulfilling the requisite qualification."
The writ petitioner had already submitted his application for registration with A.P. Pharmacy Council and paid the fee. The appointment order was also issued and we have been told that thereafter he obtained a certificate from the A.P. Pharmacy Council also. We were told at the Bar that the respondent No. 4 (applicant in O.A) has also been appointed.
9. For these reasons, we allow both the writ petitions and set aside the orders passed by the A.P. Administrative Tribunal in O.A.No. 7020/95 as well as in Review M.A.No. 1342/98.
