WP(C) 6028/2007 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA 1. In all the writ petitions, the challenge made is to the methodol ogy and procedure adopted towards selection and appointment of Pharmacist in the Department of Health and Family Welfare, Govt. of Assam. The writ petitions bei ng 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 judgme nt and order. 2. The petitioners involved in this proceeding are all unsuccessful candida tes. They had participated in the particular selection process initiated by the respondents for appointment of Pharmacist, but having failed to qualify in the s aid 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 b e summarised as follows: i) As per Rule 6 of the Assam Pharmacist Services Rules, 1986, direct recruitmen t to the category of Pharmacist is required to be made by the ’appointing author ity’ on the basis of the selection made by the Board and approved by the appoint ing 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 violatio n 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 oug ht to have been conducted through the process of both written test and oral inte rview. iii) The purported relaxation of the requirement for conducting the selecting di strict wise by the aforesaid appointing authority simply by issuing a notificati on 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 prov ided 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 th at the authority by invoking the clause relating to relaxation (Rule 26) relaxed the rules requiring district wise selection and to that effect necessary notif ication was also issued on the strength of which the selection was conducted cen trally 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 h olding of any written examination. It is the stand of the respondents that whil e 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 d isabled candidates appeared in the interview/selection, no such candidate could be appointed. Referring to Assam Women (Reservation of Vacancies in Services an d Posts) Rules, 2005, it has been stated that the woman candidates with requisit e qualification are entitled to appointment against total posts numbering 86 an d in fact, 21 successful women candidates were selected and appointed by the Dir ectorate. It has also been stated that in case of deficiency in attaining the pr escribed percentage, the slots can be carried forwarded as back log vacancies a nd same can be adjusted against future vacancies. 6. I have heard the learned counsel appearing for the petitioners namely, M r. H.R.A. Chokraborty, learned Sr. counsel, Mr. M.A. Sheikh, Mr. A.R. Sikdar and Mr. B. Chokraborty, learned counsel for appearing for the petitioners. I have a lso heard Mr. D. Saikia, learned Standing counsel, Health Department alongwith M r. B. Gogoi, learned counsel representing the Health Department. Mr. S. Dutta an d Mr. A.K. Hussain learned counsel argued on behalf of the appointed candidates. 7. Learned counsel for the petitioners have placed reliance on the decision s reported in (2004) 6 SCC 786 (Inder Parkash Gupta vs. State of J & K and ors.) ; AIR 2005 SC 2540 ( Rajesh Kumar Gupta and ors vs. State of U.P. and ors.) and 2011 (1) GLT 93 (Sankar Chandra Paul & anr vs. State of Tripura & ors.) 8. In Inder Parkash Gupta (supra), the Apex Court dealing with binding effe ct of the service rules framed under Article 309 of the Constitution of India, h eld 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 fo r appointment as Assistant Teachers in Primary schools is maintainable even thou gh the candidates whose names appeared in the selection list were not made parti es to writ petitions. In the instant case, the selected candidates are party res pondents and thus, the question of non-joinder of necessary parties will not ari se. 9. In Sankar Chandra Paul (supra), it has been held that when the particula r office memorandum laying service guidelines is in conflict with statutory rule s, 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 ru les as notified vide notification dated 07.07.2007 (Annexure C to the counter af fidavit) cannot go to the extent of vesting the authority to another authority w hich 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 1 111/02/Pt. I/200 dated 6th July, 2007 and in exercise of powers conferred under Rule 26 of the Assam Pharmacists Services Rules, 1986 (hereinafter called the Ru les), 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 Govt. of Assam Health & FW Dept. 11. In paragraph-5 of the counter affidavit, the State respondents have stat ed that the Govt. of Assam in the Health & FW Deptt. relaxed Rule 13(2) of the A ssam 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 vi de order dated 06.07.2007 for selection of candidates for appointment of Pharmac ist against the vacant posts communicated by the Govt. vide order dated 15.09.20 06. 12. Rule 26 of the aforesaid Rules empowers the Govt. to relax the requireme nt of Rules. In case of there being any undue hardship in any particular case, t he Govt. may dispense with or relax the requirement of the Rule to such extent a nd 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 an y 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 parti cular case in a just and equitable manner. In R.R. Verma and ors. vs. Union of I ndia and ors. reported in (1980) 3 SCC 402 , the Apex Court dealing with the par ticular Rule of relaxation observed thus: 5. The last point raised by Shri Garg was that the Central Government had no po wer to review its earlier orders as the rules do not vest the government with an y such power. Shri Garg relied on certain decisions of this Court in support of his submission: Patel Narishi Thakershi v. Pradyumansinghji Arjunsinghji; D.N. R oy 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 quashi-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 implica tion is applicable to decisions purely of an administrative nature. To extend th e principle to pure administrative decisions would indeed lead to untoward and s tartling 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 admini stration they cannot be hidebound by the rules and restrictions of judicial proc edure though of course they are bound to obey all statutory requirements and als o observe the principles of natural justice where rights of parties may be affec ted. Here again, we emphasise that if administrative decisions are reviewed, the decisions taken after review are subject to judicial review on all grounds on w hich 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 recruitm ent to the cadre of Pharmacist shall be made by the appointing authority which i s 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 m anner as the appointing authority may decide. Further provision made is that a m ember 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 Govt. 15. In the instant case, by the aforesaid notification dated 07.07.2007 th e Govt. of Assam in the Health & F W Department invoked the power of relaxation as provided under Rule 26 of the Rules. By order dated 06.07.2007, the Govt. of Assam in the same department constituted a Selection Board for selection of can didates for the post of Pharmacist. The Selection Committee was headed by the Di rector of Health Services, Assam with six other members of the Health Department . By the said order the Govt. of Assam empowered the Chairman to conduct the int erview 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 r elaxation there was any prejudice caused to the candidates in the matter of sele ction. In fact, all the petitioners duly participated in the selection without raising any grievance. Now they have filed the writ petitions questioning the ve ry selection conducted by the aforesaid Committee headed by the Chairman, i.e. t he Director of Health Services. 17. Mr. M.A. Sheikh, learned counsel for the petitioner has additionally con tended and the same has been supported by the other learned counsel for the peti tioners 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 c andidates. Apart from the fact that there is no requirement of holding of writte n examination for the post of Pharmacist, the petitioners having participated in the selection process which was comprised of oral interview, cannot now turn ar ound the same so as to question the very methodology adopted in the selection. T hey took a chance for favourable consideration and now after failing to qualify in the selection, cannot be allowed to take the plea that the selection is bad o n account of same being only with oral interview. 18. As per the requirement of Rule 6 of the Aforesaid Rules, the Selection B oard 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 f ind is that the aforesaid provision of the Rules was followed and in fact, the S election Board allotted marks under different heads including the marks in the h ead of academic performance. It is on that basis the select list was prepared. T hus 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 physicall y handicapped persons, the respondents have cleared their stand in their counter affidavit about which mention has been made above. As against the categorical s tand of the respondents in their counter affidavit in paragraph-6 that there was no physically handicapped candidate in the selection/ interview, the petitioner s 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 be en selected and appointed. It is the further stand of the respondents that in ca se 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 bein g the appointing authority for the post of Pharmacist, the selection could not h ave been conducted by the authority constituted by the Govt. of Assam in the Hea lth and FW Department cannot be accepted for yet another reasons. The appointing authority, i.e. Chief Medical & Health Officer is appointed by the Govt. of Ass am. In the hierarchy, the Director of Health Services is the Head of the Directo rate. The Govt. of Assam towards relaxing the Rules as empowered by Rule 26 of the aforesaid Rules, issued the above quoted notification dated 07.07.2007 empow ering the Selection Board to conduct the selection State wise pursuant to which the said Selection Board conducted the selection. Thereafter, the appointments h ave 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.