Uttarakhand High Court
Om Prakash And Others … vs State Of Uttarakhand And Others on 25 August, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
Reserved on 08.08.2025
Delivered on 25.08.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 2511 of 2024 (S/S)
Om Prakash and others ......Petitioners
Versus
State of Uttarakhand and others ....Respondents
Present:
Mr. Abhishek Bahuguna, Advocate for the petitioners.
Mr. Ganesh Kandpal, Deputy Advocate General with Mr. Mohit
Maulekhi, Brief Holder for the State.
Mr. Ramji Srivastava, Advocate for the Uttarakhand Medical Service
Selection Board.
Mr. Bhagwat Mehra, Advocate for the intervener.
Writ Petition No. 2452 of 2024 (S/S)
Vinod Kumar ......Petitioner
Versus
State of Uttarakhand and others ....Respondents
Present:
Mr. Susheel Kumar, Advocate for the petitioner.
Mr. Ganesh Kandpal, Deputy Advocate General with Mr. Mohit
Maulekhi, Brief Holder for the State.
Mr. Ramji Srivastava, Advocate for the Uttarakhand Medical Service
Selection Board.
Ms. Seema Sah, Advocate for the Uttarakhand Pharmacy Council.
Mr. Bhagwat Mehra, Advocate for the intervener.
Writ Petition No. 2130 of 2024 (S/S)
Pankaj Mohan Dhyani and another ......Petitioners
Versus
State of Uttarakhand and others ....Respondents
Present:
Mr. Pawan Sanwal, Advocate for the petitioners.
Mr. Ganesh Kandpal, Deputy Advocate General with Mr. Mohit
Maulekhi, Brief Holder for the State.
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Mr. Ramji Srivastava, Advocate for the Uttarakhand Medical Service
Selection Board.
Mr. Bhagwat Mehra, Advocate for the intervener.
JUDGMENT
Hon’ble Ravindra Maithani, J.
Since common questions of law and fact are involved in
these writ petitions, they are heard together and being decided by this
common judgment. However, the facts of WP (S/S) No. 2511 of 2024 are
being referred to, for the sake of convenience.
2. The short question which falls for determination in these
writ petitions is as to whether the petitioners, who are Bachelor in
Pharmacy (“B.Pharma.”) are eligible for their appointment to the post of
Pharmacist, for which the educational qualification is Diploma in
Pharmacy (“D. Pharma.”) from a recognized institution and registration
with the State Pharmacy Council.
3. The facts necessary to appreciate the controversy, briefly
stated, are as follows. The respondent no. 3, Uttarakhand Medical
Service Selection Board (“the Board”) by its advertisements dated
16.10.2024 and 19.10.2024 invited applications for the post of
Pharmacists (Allopathic) in Labour Department and Pharmacist (Bhesaj)
in Medical Department, respectively. As per the advertisement, the
educational qualification for the post is that a candidate must possess
D.Pharma. from a recognized institution and must also be registered with
the Uttarakhand Pharmacy Council. In the case of Pharmacists (Bhesaj),
along with D.Pharma, registration was necessary either in Uttarakhand
Pharmacy Council or Uttarakhand Pharmacist Registration Tribunal. It is
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the case of the petitioners that they are B.Pharma. holders, but they have
been denied permission to participate in the recruitment process on the
ground that only the D.Pharma. holders are entitled to appear in the
examination. It is also the case of the petitioners that in the earlier
litigation, the State had given an assurance that they would include the
qualification of B.Pharma. also for appointment to the post of Pharmacist
and the proposal, in fact, has been sent by the Director General, Medical
Health and Family Welfare of the State Government. It is further the case
of the petitioners, that qualification as given in the advertisement is
minimum qualification and since the petitioners are higher in
qualification, they may not be denied permission for applying to the post
of Pharmacists. Therefore, in all these petitions, the petitioners seek
direction that the petitioners may be declared qualified and be permitted
to appear and fill form in response to the advertisements dated
16.10.2024 and 19.10.2024 issued by the Board.
4. The respondent State has filed its counter affidavit and in
para 5 of the counter affidavit, it is stated that the Medical Health and
Family Welfare Department has no jurisdiction in respect of the
vacancies, requisition, direct recruitment, etc. on the posts under the
Medical Education Department.
5. The Board has also filed its counter affidavit and in para 5,
it is stated that all the petitioners are having Degree in Pharmacy and
admittedly not having Diploma in Pharmacy, which is a required
condition as per Clause 5 of the advertisement, therefore, candidature of
the petitioners has rightly been rejected.
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6. It may be noted that by the interim orders of this Court, the
application form of the petitioners were directed to be provisionally
accepted, but the Court had directed that the result shall not be
declared till the disposal of the writ petitions.
7. Heard learned counsel for the parties and perused the
record.
8. Learned counsel for the petitioners would submit that in
earlier in WP (S/B) No. 486 of 2021, Kiritika Verma v. State of
Uttarakhand and others (“the first petition”), the State Government had
given an assurance to the Court that they would change the rules by
including B.Pharma. as one of the essential qualifications for
appointment to the post of Pharmacists, but till date the rules have not
been amended; therefore, now the petitioners cannot be denied the
opportunity to apply for the post of Pharmacists pursuant to the
advertisements in question.
9. In the first petition, the Division Bench had taken note of
para 4 of the counter affidavit of the Joint Secretary, Labour
Department, Government of Uttarakhand and noted it in its order dated
13.05.2025, which reads as follows:-
“4. A counter affidavit dated 07.03.2022 is filed by Virendra Pal
Singh, Joint Secretary, Labour Department, Government of
Uttarakhand. Para 4 of the said counter is extracted below:-
“4. That the contents of paragraph No. 2 of the
said petition are only admitted in so far as they are
5matter of record. However, it is imperative to clarify that
in light of the Government of India Notification dated
16.07.2019, the answering respondent is taking
necessary steps to amend Rule 8 of 2025 the
Uttarakhand Employees State Insurance Scheme
Pharmacist Cadre (Allopathic) Service Rules, 2021 in
order to include B. Pharma degree in addition to D.
Pharma as a qualification for the post of Pharmacist
(Allopathic).”
10. Thereafter, the Court noted the arguments of the petitioner
in that writ petition and proceeded to pass the following orders:-
“5. Learned counsel for the petitioner submits that
although an assurance was given, more than three years ago
that necessary steps are being taken to amend Rule 8 of the
applicable Service Rules; however, no progress has been made
thereafter and the matter is where it was, before filing the writ
petition.
6. Learned State Counsel also submits that in the
absence of any clear instructions, he is not in a position to make
any definite statement in the matter.
7. Having regard to the stand taken by the State
Government in para 4 of its counter affidavit, we dispose of the
writ petition with a direction to the State Government to finalise
the matter and issue necessary notification, within four months
from the date of production of presentation of certified copy of
this order before respondent no. 1.”
11. It is also argued on behalf of the petitioners that in view of
Section 31 of the Pharmacy Act, 1948 (“the Pharmacy Act“), both
B.Pharma. and D.Pharma are registered pharmacists, therefore, by
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virtue of not including B.Pharma. as eligibility qualification for
appointment to the post of Pharmacist, discrimination has been done
with such candidates, who has acquired B.Pharma. and such
classification is not reasonable. It is also argued that the rules have not
been made as per the Pharmacy Act.
12. In addition to it, it has also been argued that the Pharmacy
Council of India has also decided that “a person holding the Pharm. D.
qualification being higher qualification shall automatically become
eligible for appointment to various posts where a person holding
Diploma in Pharmacy or Bachelor of Pharmacy or Masters of
Pharmacy qualification is eligible to be appointed.”
13. Learned counsel for the State submits that the qualification
as prescribed in the rules for appointment on the post of Pharmacists is
D.Pharma. and only such candidates are eligible to participate, who are
D.Pharma. and any other candidate, even if he has higher qualification,
is not eligible for appointment to the post of Pharmacist. He submits
that this Court cannot relax the eligibility criteria.
14. On behalf of the Board, it is argued that the qualification as
prescribed under the rules cannot be relaxed in any manner, either by
the recruiting body or by the Court. In support of his contention,
reliance has been made on the judgment in the case of Zahoor Ahmed
Rather and others v. Sheikh Imtiyaz Ahmad and others, (2019) 2 SCC
307.
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15. In the case of Zahoor Ahmed Rather (supra), an
advertisement in the State of Jammu and Kashmir was issued inviting
application for Technician-III in the Power Development Corporation, for
which prescribed qualification was “Matric with ITI in the relevant
trade”. The process for recruitment was taken. Candidates having
Diploma in Civil Engineering were also permitted to participate, but
midway a decision was taken that the candidates having Diploma in
Civil Engineering may not be eligible for this position, because the only
qualification for the post is “Matric with ITI in relevant trade”. This was
challenged in a writ petition. The writ court at the first instance, allowed
the writ petition of the Diploma holders, but in the intra-Court appeal,
the judgment of the writ court was reversed and it was held that the
advertisement mandates ITI in relevant trade as a condition of eligibility.
The Hon’ble Supreme Court dismissed the challenge made to the
decision of the Division Bench of the High Court. The Hon’ble Supreme
Court observed as follows:-
“27. While prescribing the qualifications for a post, the State, as
employer, may legitimately bear in mind several features
including the nature of the job, the aptitudes requisite for the
efficient discharge of duties, the functionality of a qualification
and the content of the course of studies which leads up to the
acquisition of a qualification. The State is entrusted with the
authority to assess the needs of its public services. Exigencies of
administration, it is trite law, fall within the domain of
administrative decision-making. The State as a public employer
may well take into account social perspectives that require the
creation of job opportunities across the societal structure. All
these are essentially matters of policy. Judicial review must
tread warily. That is why the decision in Jyoti K.K. [Jyoti
K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 :
(2013) 3 SCC (L&S) 664] must be understood in the context of a
specific statutory rule under which the holding of a higher
qualification which presupposes the acquisition of a lower
qualification was considered to be sufficient for the post. It was
in the context of specific rule that the decision in Jyoti K.K. [Jyoti
8K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 :
(2013) 3 SCC (L&S) 664] turned.”
16. Learned counsel for the Board has also brought to the
notice of the Court one very important fact. He would submit that Vinod
Kumar, the petitioner in WP (S/S) No. 2452 of 2024 had earlier filed a
similar kind of writ petition i.e. WP (S/S) No. 152 of 2015 (“the second
petition”). At that time also, for the post of Pharmacist, the prescribed
qualification was D.Pharma. The petitioner Vinod Kumar had challenged
it on the ground that he holds B.Pharma., therefore, he should be
permitted to participate and by the order dated 13.05.2015, the second
petition was allowed and he was permitted to participate in the
recruitment process. But, it is argued that the order passed in the
second petition on 13.05.2015 was challenged in Special Appeal No. 309
of 2015, Nandan Ban Goswami and others v. Vinod Kumar and others,
which was decided on 26.08.2016 and the special appeal was allowed.
The Court held that the educational qualification prescribed under the
rules has to be followed. In the case of Nandan Ban Goswami (supra),
the Hon’ble Division Bench has observed as follows:-
“10. The writ petitioner may be registered with the State
Pharmacy Council, but admittedly he does not possess diploma
in Pharmacy; instead he has degree. The learned Single Judge
may be correct in saying that he is having a higher qualification;
but, once the law-giver has provided clearly and unambiguously
the qualification, which must be possessed, and there is no law
pointed out to us which entitles the writ petitioner to rely on the
higher qualification, which he possesses, the learned Single
Judge was unjustified in directing his candidature to be
considered. The said Rule has not been challenged by the writ
petitioner. He only sought a mandamus on the basis that he
possesses a higher qualification. Bereft of any legal foundation,
the argument of the writ petitioner could not have been
accepted.
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11. Accordingly, the appeal is allowed; the judgment passed by
the learned Single Judge will stand set aside; and the writ
petition will stand dismissed without any order as to cost.
12. However, we make it clear that in regard to any other
recruitment for the post of Pharmacist, this judgment will not
stand in the way of the writ petitioner seeking appropriate reliefs
after mounting a challenge, if advised, to the Rule in question.”
17. The service rules, which prescribe qualification for the post
of Pharmacist have not been challenged. Rule position remains same
after Nandan Ban Goswami (supra) judgment of the Court in special
appeal. Admittedly, the petitioners are B.Pharma. holders. They are not
Diploma holders in Pharmacy. It is admitted that qualification as per
service rules for the post of Pharmacist is D.Pharma. from a recognized
institution and registration in State Pharmacy Council. The
advertisement also invites application from the candidates possessing
this qualification. The petitioners are B.Pharma. holders. They do not
meet the requirement of the rules or the advertisement. This Court need
not restrain any further on this issue, because in Special Appeal No.
309 of 2015, Nandan Ban Goswami and others v. Vinod Kumar and
others, the issue has already been decided and this Court has held that
unless the rules are changed, a candidate holding B.Pharma. may not
be eligible for the post of Pharmacist, as per the existing rules.
18. It is argued that in the first petition, an assurance was
given by the Joint Secretary, Labour Department, Government of
Uttarakhand that they would change the rules. Mere assurance cannot
change the rules, unless they are changed. It is also settled law that
there cannot be any estoppel against the Legislature. Based on any
assurance given in the first petition, it cannot be said that
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now the petitioners are eligible for appointment to the post of
Pharmacist, without change in rules, including B.Pharma. also as a
qualification for the post.
19. An argument has been made that Pharmacy Council of
India has also decided that B.Pharma. and D.Pharma. are one and the
same. It also does not make out any case for the petitioners. The service
rules prescribe the educational qualification for appointment to the post
of Pharmacists, which is that a candidate must possess Diploma in
Pharmacy. Unless rules are changed, the petitioners cannot claim that
they are eligible for appointment to the post of Pharmacists.
20. In view of the above discussion, this Court does not find
merit in the writ petitions. The writ petitions deserve to be dismissed.
21. All the writ petitions are dismissed.
(Ravindra Maithani, J.)
25.08.2025
Avneet/