# Ajay Kumar v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 470
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-27
- **Case number:** Writ-A No. 40695 of 2005
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-v-state-of-u-p-ors-50817
- **Pages:** 12

## Headnote

A. Service Law - Constitution of India -
Article 226 - Writ - Scope -Post of
Assistant
Registrar
-
Selection
of
respondent nos. 4 & 5 was alleged to be
wrongly made - The respondent nos. 4 &
5
were
appointed
pursuant
to
the
modification of the interim order of High
9 All. Ajay Kumar Vs. State of U.P. & Ors.
471
Court and after completing their entire
tenure
of
service,
they
have
superannuated - Effect - Held, so far as
appointment of respondent nos. 4 and 5 is
concerned, the same cannot be quashed
nor can any order be passed in this writ
petition to the detriment of the interest of
the respondent nos. 4 and 5. (Para 12 and
13)

B. Constitutional Law - Principle of
Prospective overruling - Applicability -
Superseding
of
earlier
decision
-
Retrospective operation of law declared
by Supreme Court - Scope - Held, the
word 'prospective overruling' implies an
earlier judicial decision on the same issue
which was otherwise final. That is how it
was understood in Golak Nath. However,
the Supreme Court has used the power
even when deciding on an issue for the
first time - It is well settled that
declaration
of
law
can
be
made
prospective i.e. operative from the date of
the judgment - Somaiya Organics's case
relied upon. (Para 23, 24 and 26)

C. Maxim of equity - lex non cogit ad
impossibilia - Meaning - The law does not
compel a man to do what he cannot
possibly perform. (Para 25)

D. Maxim of equity - Actus Curiae
Neminem Gravabit - Meaning - Nobody
should be allowed to suffer for the fault of
the court. (Para 32)

E. Service Law - Constitution of India -
Article 226 - Writ - Scope - Delay in
disposal of writ, how far fatal in granting
relief - Selection was made in 2014, of
which validity was challenged through
writ petition filed in 2015, in which
pleadings were exchanged - Reference
made to larger Bench was decided in
2019, which was also confirmed by Apex
Court in 2021 and thereafter writ petition
was heard in 2023 - Effect - Held, if,
merely delay in disposal of the writ
petition, is taken as a ground to deny
relief to the petitioner, that would be a
mockery of the legal system and the
institution of justice for which it has been
established. (Para 30 and 33)

F. Service Law - Selection - Reservation -
Horizontal
reservation
to
women
candidates - Admissibility - Only 01 post
could have been filled up by woman
candidate, however the second post was
erroneously
filled
up
by
according
reservation to another woman candidate
who was not entitled for the same - The
petitioner being next candidate in the
order of merit was denied due to wrong
application
of
reservation
-
Validity
challenged - Held, the Commission was
not justified in filling up two posts by
according
horizontal
reservation
to
women candidates but it could fill up only
a
single
post
and,
therefore,
the
petitioner, being next in the order of
merit, should have been appointed on the
vacant post - Saurav Yadav's case relied
upon. (Para 2, 15, 33 and 36)

Writ petition partly allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,656 of 40,116. This is a partial read: ask again with offset=39656 for what follows._

470 INDIAN LAW REPORTS ALLAHABAD SERIES
case, the Police Authorities have been
sufficiently heard, even personally. They
have filed affidavits too and defended their
position before this Court.

98. In the result, this petition succeeds
and is allowed. A mandamus is issued to
the State of Uttar Pradesh represented by
the Collector, Agra and also to anyone
sitting in the suit property on behalf of the
Collector or otherwise, including the
Commissioner of Police, Agra, the S.H.O.,
P.S. Hari Parwat, Agra, the Chowki Incharge, Police Chowki Khandari, P.S. Hari
Parwat, Agra and their subordinate officials
in occupation of the suit property, to
deliver vacant possession thereof to the
petitioner between sunrise and sunset on
10th October, 2023, in the presence of the
Court Amin, who shall be present on the
spot and record proceedings of the day. The
petitioner shall remain present at the suit
property to take possession of the same.
After delivery of possession, the Collector,
Agra will submit a report of compliance to
the Registrar General of this Court on or
before the 12th October, 2023, which shall
be placed on record. The Amin shall make
his report to the Executing Court, who shall
dispose of Execution Case No.20 of 1999
in accordance with law, taking into account
the Amin's report. It is further ordered that
until judgments are passed in O.S. No.1040
of 2011, Misc. Case Nos.16 of 2021 and
213 of 2022, instituted by the State of U.P.
or the S.S.P., Agra (now his successor, the
Commissioner of Police, Agra), the suit
property shall not be alienated by the
petitioner in favour of any third party, nor
its nature or character changed in any
manner whatsoever, and further that it shall
be maintained in good repair by the
petitioner. In the event of the second
respondent or the S.S.P., Agra (now his
successor, the Commissioner of Police,
Agra) being successful in establishing their
right, title and interest to the suit property,
as against the petitioner, the petitioner
would be bound by the orders passed by the
Court in the aforesaid matters, and restitute
possession
of
the
suit
property
to
respondent No.2, if so ordered.

99. Let a copy of this order be
communicated to the Collector, Agra, the
Commissioner of Police, Agra, the S.H.O.,
P.S. Hari Parwat, Agra, the Chowki Incharge, Police Chowki Khandari, Agra and
the Judge, Small Cause Court, Agra or
wherever Execution Case No.20 of 1999 be
pending, all through the learned District
Judge, Agra by the Registrar (Compliance).
----------
(2023) 9 ILRA 470
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-A No. 40695 of 2005

Ajay Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anil Tiwari, Sri Dharmendra Shukla, Sri
Ramesh

Counsel for the Respondents:
C.S.C., Sri Ashok Khare, Sri Hitesh Pachori, Sri
M.A. Qadeer, Sri Nisheeth Yadav, Sri R.B.
Saxena, Sri Rohit Upadhyay

A. Service Law - Constitution of India -
Article 226 - Writ - Scope -Post of
Assistant
Registrar
-
Selection
of
respondent nos. 4 & 5 was alleged to be
wrongly made - The respondent nos. 4 &
5
were
appointed
pursuant
to
the
modification of the interim order of High
9 All. Ajay Kumar Vs. State of U.P. & Ors.
471
Court and after completing their entire
tenure
of
service,
they
have
superannuated - Effect - Held, so far as
appointment of respondent nos. 4 and 5 is
concerned, the same cannot be quashed
nor can any order be passed in this writ
petition to the detriment of the interest of
the respondent nos. 4 and 5. (Para 12 and
13)

B. Constitutional Law - Principle of
Prospective overruling - Applicability -
Superseding
of
earlier
decision
-
Retrospective operation of law declared
by Supreme Court - Scope - Held, the
word 'prospective overruling' implies an
earlier judicial decision on the same issue
which was otherwise final. That is how it
was understood in Golak Nath. However,
the Supreme Court has used the power
even when deciding on an issue for the
first time - It is well settled that
declaration
of
law
can
be
made
prospective i.e. operative from the date of
the judgment - Somaiya Organics's case
relied upon. (Para 23, 24 and 26)

C. Maxim of equity - lex non cogit ad
impossibilia - Meaning - The law does not
compel a man to do what he cannot
possibly perform. (Para 25)

D. Maxim of equity - Actus Curiae
Neminem Gravabit - Meaning - Nobody
should be allowed to suffer for the fault of
the court. (Para 32)

E. Service Law - Constitution of India -
Article 226 - Writ - Scope - Delay in
disposal of writ, how far fatal in granting
relief - Selection was made in 2014, of
which validity was challenged through
writ petition filed in 2015, in which
pleadings were exchanged - Reference
made to larger Bench was decided in
2019, which was also confirmed by Apex
Court in 2021 and thereafter writ petition
was heard in 2023 - Effect - Held, if,
merely delay in disposal of the writ
petition, is taken as a ground to deny
relief to the petitioner, that would be a
mockery of the legal system and the
institution of justice for which it has been
established. (Para 30 and 33)

F. Service Law - Selection - Reservation -
Horizontal
reservation
to
women
candidates - Admissibility - Only 01 post
could have been filled up by woman
candidate, however the second post was
erroneously
filled
up
by
according
reservation to another woman candidate
who was not entitled for the same - The
petitioner being next candidate in the
order of merit was denied due to wrong
application
of
reservation
-
Validity
challenged - Held, the Commission was
not justified in filling up two posts by
according
horizontal
reservation
to
women candidates but it could fill up only
a
single
post
and,
therefore,
the
petitioner, being next in the order of
merit, should have been appointed on the
vacant post - Saurav Yadav's case relied
upon. (Para 2, 15, 33 and 36)

Writ petition partly allowed. (E-1)

List of Cases cited:

1. Saurav Yadav & ors. Vs St. of U.P. & ors.
(2021) 4 SCC 542.

2. Tamannaben Ashokbhai Desai Vs Shital
Amrutlal Nishar; (2020) SCC OnLine Guj 2592

3. St. of U.P. and Anr. Vs Pawan Kumar Tiwari &
ors.; (2005) 2 SCC 10

4. Ashika Prasad Shukla Vs Dist. Inspector of
Schools, Allahabad & ors.; (1998) 3 AWC 2150

5. Somaiya Organics (India) Ltd. & Anr. Vs St. of
U.P. & anr.; (2001) 5 SCC 519.

6. Kailash Chand Sharma Vs St. of Rajasthan &
ors.; (2002) 6 SCC 562.

7. Employees' St. Insurance Corpn. & ors. Vs
Jardine Henderson Staff Association & Ors.;
(2006) 6 SCC 581.

8. U.O.I.& ors. Vs Chaman Rana with U.O.I.& ors.
Vs Gulshan Kumar Sharma; (2018) 5 SCC 798
472 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Keshwanand Bharti Vs St. of Kerala; (1973) 4
SCC 225 : AIR 1973 SC 1461

10. Managing Director E.C.I.L., Hyderabad Vs B.
Karunakar; JT 1993 (6) SC 1 at p. 46 para 73 :
((1993) 4 SCC 727 : AIR 1994 SC 1074

11. Harsh Dhingra Vs St. of Har.; (2001) 9 SCC
550

12. Inderchand Jain (Dead) through LRs. Vs
Motilal (Dead) through LRs.; (2009) 14 SCC 663

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Heard Shri Anil Tiwari, learned
Senior Counsel assisted by Shri Ramesh
and Sri Dharmendra Shukla, learned
counsel for the petitioner, Shri Bharat
Pratap
Singh,
the
Additional
Chief
Standing Counsel along with Shri Neeraj
Tripathi, Additional Advocate General on
behalf of respondent no. 1 and Shri
Nisheeth
Yadav,
learned
counsel
representing the respondent - U.P. Public
Service Commission and perused the
records.

2. After hearing the learned counsel
for the parties, I find that the controversy
involved in this matter with regard to
horizontal reservation admissible to women
candidates is covered in terms of the
judgment of the Apex Court in the case of
Saurav Yadav and Others Vs. State of U.P.
and Others (2021) 4 SCC 542. Relevant
portions of the said judgment shall be
referred at appropriate place in this
judgment.

3. The present writ petition has been
filed by one Ajay Kumar challenging the
impugned selection list published on
22.07.2004 insofar as it recommended
selection in favour of Smt. Archana Jauhary
and Km. Anshu Lata Sarkar, respondent
nos. 4 and 5, respectively to the writ
petition. Further prayer has been made for
commanding the respondents to arrange the
select list afresh strictly in accordance with
the eligibility criteria and without giving
any reservation to the women as a class and
with further mandamus commanding the
respondents not to make any appointment
pursuant to the recommendations made by
the respondent - Commission on the post of
Assistant
Registrar
pursuant
to
the
advertisement in question.

4. The submission of Shri Anil Tiwari
is to the effect that the U.P. Public Service
Commission advertised 14 vacancies of
Assistant Registrars in the year 2000 and
insofar
as
horizontal
reservation
is
concerned, it was provided that two posts
shall remain reserved for women category
candidates as per the Government Orders
applicable which provided 20% reservation
in that regard. He submits that out of 14
posts, 7 posts were of open category
candidates
and,
therefore,
if
20%
reservation is applied for women, the said
calculation would go to 1.4 which, when
rounded off, would go to 1 (one). He
further submits that only one post out of 7
could have been filled up by offering
selection / appointment to a single woman
whereas, the respondents have finalized
selection in favour of respondent nos. 4 and
5, i.e., 2 women by making wrong
calculation of 20% of 14 vacancies, i.e., 2.8
which would come to 2 (two) and,
therefore, instead of applying reservation
on the basis of compartmentalization, two
posts have been wrongly filled up.

5. In support of his contention,
reference to various authorities has been
made by Sri Anil Tiwari and it has been
contended that after the Full Bench of this
Court decided the issue of reservation vide
9 All. Ajay Kumar Vs. State of U.P. & Ors.
473
its judgement dated 16.07.2019 in this very
petition, the matter reached up to Supreme
Court where, not only the judgment
rendered by the Full Bench of this Court
was considered but also the judgments on
the same issue pronounced by the High
Courts of Rajasthan, Bombay, Uttrakhand
and Gujarat were discussed at length and
final judgment was passed in the case of
Saurav Yadav (supra).

6. Shri Anil Tiwari has placed reliance
upon paragraph nos. 24, 27, 28, 40 and 43
of the said judgment which are reproduced
herein below:-

"24. The view taken by the High
Courts of Rajasthan, Bombay, Uttarakhand
and Gujarat is thus contrary to the one that
weighed with the High Court of Allahabad.
Apart from the orders referred to in paras
11 to 13 hereinabove, the Full Bench of the
High Court of Allahabad in Ajay Kumar v.
State of U.P. held:-

"94. For the aforesaid, to our mind,
inter se merit of women has no role to play
in
the
implementation
of
horizontal
reservation
as
the
socially
reserved
candidate (SC, ST, & OBC) seeking benefit
of reservation of special category (women)
cannot claim adjustment in open category."

27. The High Courts of Rajasthan,
Bombay, Uttarakhand, and Gujarat have
adopted the same principle while dealing
with horizontal reservation whereas the
High Court of Allahabad and Madhya
Pradesh have taken a contrary view. These
two views, for facility, are referred to as the
"first view" and the "second view"
respectively. The second view that weighed
with the High Courts of Allahabad and
Madhya Pradesh is essentially based on the
premise that after the first two steps as
detailed in para 18 of the decision in Anil
Kumar
Gupta
and
after
vertical
reservations are provided for, at the stage
of accommodating candidates for effecting
horizontal reservation, the candidates from
reserved categories can be adjusted only
against their own categories under the
vertical reservation concerned and not
against the "Open or General Category".

28. Thus, according to the second
view, different principles must be adopted
at two stages; in that:

(I) At the initial stage when the "Open
or General Category" seats are to be filled,
the
claim
of
all
reserved
category
candidates based on merit must be
considered and if any candidates from such
reserved categories, on their own merit, are
entitled to be selected against Open or
General Category seats, such placement of
the reserved category candidate is not to
affect in any manner the quota reserved for
such categories in vertical reservation.

(II) However, when it comes to
adjustment at the stage of horizontal
reservation, even if, such reserved category
candidates are entitled, on merit, to be
considered and accommodated against
Open or General seats, at that stage the
candidates from any reserved category can
be adjusted only and only if there is scope
for their adjustment in their own vertical
column of reservation.

Such exercise would be premised on
following postulates:

(A) After the initial allocation of Open
General Category seats is completed, the
claim or right of reserved category
candidates to be admitted in Open General
Category seats on the basis of their own
merit stands exhausted and they can only
be considered against their respective
column of vertical reservation.

(B)
If
there
be
any
resultant
adjustment on account of horizontal
reservation in Open General Category,
only those candidates who are not in any of
474 INDIAN LAW REPORTS ALLAHABAD SERIES
the
categories
for
whom
vertical
reservations is provided, alone are to be
considered.

(C) In other words, at the stage of
horizontal
reservation,
Open
General
Category is to be construed as category
meant for candidates other than those
coming from any of the categories for
whom vertical reservation is provided.

40. We, therefore, do not approve the
second view and reject it. The first view
which weighed with the High Courts of
Rajasthan, Bombay, Uttarakhand and
Gujarat is correct and rational.
43. Finally, we must say that the steps
indicated by the High Court of Gujarat in
para 69 of its judgment in Tamannaben
Ashokbhai Desai contemplate the correct
and appropriate procedure for considering
and giving effect to both vertical and
horizontal reservations. The illustration
given by us deals with only one possible
dimension. There could be multiple such
possibilities. Even going by the present
illustration, the first female candidate
allocated in the vertical column for
Scheduled Tribes may have secured
higher position than the candidate at
Serial No. 64. In that event said candidate
must be shifted from the category of
Scheduled Tribes to Open / General
category causing a resultant vacancy in
the vertical column of Scheduled Tribes.
Such vacancy must then enure to the
benefit of the candidate in the waiting list
for Scheduled Tribes - Female. The steps
indicated by the Gujarat High Court will
take care of every such possibility. It is
true that the exercise of laying down a
procedure must necessarily be left to the
authorities concerned but we may observe
that one set out in said judgment will
certainly satisfy all claims and will not
lead to any incongruity as highlighted by
us in the preceding paragraphs."

7. By referring to the aforesaid
paragraphs, it has been argued that the
Supreme Court has approved the view
taken by the Gujarat High Court and,
insofar as calculation part is concerned,
method
of
calculation
described
in
paragraph no. 69 of the judgment of the
Gujarat High Court in the case of
Tamannaben Ashokbhai Desai vs. Shital
Amrutlal Nishar (2020) SCC OnLine Guj
2592 has
been
approved. The
said
paragraph no. 69 has been reproduced by
the Supreme Court in Paragraph No. 23.11
of the judgment in the case of Saurav
Yadav (supra) which reads as follows :-

"69. For the future guidance of the
State Government, we would like to explain
the
proper
and
correct
method
of
implementing horizontal reservation for
women in a more lucid manner.

'PROPER
AND
CORRECT
METHOD
OF
IMPLEMENTING
HORIZONTAL RESERVATION FOR
WOMEN.

No. of posts available for recruitment.
..... 100

Social Reservation Quota (49%)

Open Competition (OC) ..... 51

Scheduled Castes (SC ) ..... 12

Scheduled Tribes (ST) ..... 17

Socially and Educationally Backward
Classes (SEBC) ... 20

Horizontal Reservation for Women
(33% in each of the above categories)

OC ..... 17

SC ..... 04

ST ..... 06

SEBC ... 07

Step 1: Draw up a list of at least 100
candidates (usually a list of more than 100
candidates is prepared so that there is no
shortfall
of
appointees
when
some
9 All. Ajay Kumar Vs. State of U.P. & Ors.
475
candidates don't join after offer) qualified
to be selected in the order of merit. This list
will contain the candidates belonging to all
the aforesaid categories.

Step 2: From the aforesaid Step 1 List,
draw up a list of the first 51 candidates to
fill up the OC quota (51) on the basis of
merit. This list of 51 candidates may
include the candidates belonging to SC, ST
and SEBC.

Step 3: Do a check for horizontal
reservation in OC quota. In the Step 2 List
of OC category, if there are 17 women
(category does not matter), women's quota
of 33% is fulfilled. Nothing more is to be
done. If there is a shortfall of women (say,
only 10 women are available in the Step 2
List of OC category), 7 more women have
to be added. The way to do this is to, first,
delete the last 7 male candidates of the Step
2 List. Thereafter, go down the Step 1 List
after Item 51, and pick the first 7 women
(category does not matter). As soon as 7
such women from Step 1 List are found,
they are to be brought up and added to the
Step 2 List to make up for the shortfall of 7
women. Now, the 33% quota for OC women
is fulfilled. List of OC category is to be
locked. Step 2 List becomes final.

Step 4: Move over to SCs. From the
Step 1 List, after Item 51, draw up a list of
12 SC candidates (male or female). These
12 would also include all male SC
candidates who got deleted from the Step 2
List to make up for the shortfall of women.

Step 5: Do a check for horizontal
reservation in the Step 4 List of SCs. If
there are 4 SC women, the quota of 33% is
complete. Nothing more is to be done. If
there is a shortfall of SC women (say, only
2 women are available), 2 more women
have to be added. The way to do this is to,
first, delete the last 2 male SC candidates
of the Step 4 List and then to go down the
Step 1 List after Item 51, and pick the first
2 SC women. As soon as 2 such SC women
in Step 1 List are found, they are to be
brought up and added to the Step 4 List of
SCs to make up for the shortfall of SC
women. Now, the 33% quota for SC women
is fulfilled. List of SCs is to be locked. Step
4 List becomes final. If 2 SC women cannot
be found till the last number in the Step 1
List, these 2 vacancies are to be filled up by
SC men. If in case, SC men are also
wanting, the social reservation quota of SC
is to be carried forward to the next
recruitment unless there is a rule which
permits conversion of SC quota to OC.

Step 6: Repeat steps 4 and 5 for
preparing list of STs.

Step 7: Repeat steps 4 and 5 for
preparing list of SEBCs."

8. While explaining the calculation,
it has been argued that before the
Gujarat High Court, 33% horizontal
reservation was applicable for women
candidates and it was calculated on the
basis of compartmentalization, that is to
say that out of 100 posts available, upon
computation,
Open
Competition
category posts were described as 51 and,
accordingly, 17 posts (33% of 51) were
calculated
for
women
category
candidates. Identical calculations for
remaining categories, i.e., Scheduled
Castes
and
Scheduled
Tribes
and
Socially and Educationally Backward
Classes category candidates were also
made.

9. Further, it has been argued that in
the
present
case,
20%
horizontal
reservation would be calculated in respect
of 07 posts in open category, and that
would work out to be 01 post only and,
therefore, filling up of 02 posts of women
category candidates is contrary to the
decision of the Apex Court.
476 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Shri Nisheeth Yadav and Shri
Neeraj Tripathi, learned counsel for the
respondents side have argued that the
concerned advertisement was issued in
the year 2000 and horizontal reservation
was to be applied as per the law
applicable
at
that
time
and
the
Commission had rightly applied the
same in the present case also. It has been
submitted
that
the
calculation
of
horizontal reservation as laid down by
the Apex Court in paragraph no. 23.11 of
judgment of Saurav Yadav (supra) is
correct position of law.

11. This Court had, by interim
order
dated
24.05.2005,
initially
restrained joining of posts by the
respondent nos. 4 and 5. However, later
on, by way of order dated 27.05.2009,
the interim order dated 24.05.2005 was
modified and it was directed as follows :
-

"To protect interest of the petitioner
and to balance equities during the
period the writ petition is pending, we
modify
the
interim
order
dated
24.05.2005 and we direct that if the
respondent nos. 4 and 5 are appointed,
their appointment would be the subject
to the result of the writ petition."

12. It is contented that the respondent
nos. 4 and 5 were appointed pursuant to the
modification of the interim order and after
completing their entire tenure of service,
they have superannuated.

13. In view of the above discussions,
in so far as appointment of respondent nos.
4 and 5 is concerned, the same cannot be
quashed nor can any order be passed in this
writ petition to the detriment of the interest
of the respondent nos. 4 and 5.

14. The issue which remains to be
decided in the present case is as to what
kind of relief, the petitioner would get in
the present set of facts and circumstances,
particularly when this Court is taking a
view in consonance with the law laid down
by Apex Court in Saurav Yadav (supra).

15 Admittedly, the petitioner is
working in the office of Accountants
Comptroller General of India. While Shri
Anil Tiwari submits that once it is held that
only 01 post could have been filled up by
woman candidate, the petitioner being next
candidate in the order of merit, was entitled
for filling up the second post which was
erroneously
filled
up
by
according
reservation to another woman candidate
who was not entitled for the same. He,
therefore, submits that the petitioner should
be offered appointment on any vacancy in
the said cadre as he could not have been
removed and, therefore, was entitled to get
the appointment at that very time.

16. In support of his contention, in
this regard, Shri Anil Tiwari has referred to
paragraph no. 44 of the judgment of
Saurav Yadav (supra) which reads as under
: -

"44. Having come to the conclusion
that Appellant 1 and similarly situated
candidates had secured more marks than
the last candidates selected in "Open /
General Category", the logical consequence
must be to annul said selection and direct
the authorities to do the exercise de novo in
the light of conclusions arrived at by us.
However, considering the facts that those
selected
candidates
have
actually
undergone training and are presently in
employment and that there are adequate
number of vacancies available, we mould
the relief and direct as under :
9 All. Ajay Kumar Vs. State of U.P. & Ors.
477

44.1. All candidates coming from
"OBC Female Category" who had secured
more marks than 274.8928 i.e. the marks
secured by the last candidate appointed in
"General
Category-Female"
must
be
offered employment as Constables in Uttar
Pradesh Police.

44.2. Appropriate letters in that
behalf shall be sent to the candidates
concerned within four weeks.

44.3. If the candidates concerned
exercise their option and accept the offer
of employment, communications in that
behalf shall be sent by the candidates
concerned within two weeks.

44.4. On receipt of such acceptance,
the codal and other formalities shall be
completed within three weeks.

44.5. Letters of appointment shall
thereafter be issued within a week and the
candidates concerned shall be given
appropriate postings.

44.6. For all purposes, including
seniority, pay fixation and other issues,
the employment of such candidates shall
be
reckoned
from
the
date
the
appointment orders are issued."

17. Shri Anil Tiwari has further
placed reliance upon a Division Bench
judgement of this Court in case of Pawan
Kumar Tiwari Vs. Hon'ble High Court of
Judicature at Allahabad reported in 2003
(4) ESC 2097 and has argued that by
clearly applying the principle of rounding
off, the Division Bench had decided the
said case in almost idential circumstances
and held that the petitioner shall not be
entitled to back wages etc. However, he
will be treated notionally appointed w.e.f.
the date his batch mates had been given
appointment and the notional period would
count for the purposes of fixing salary,
annual increaments etc., and post retiral
benefits in favour. He further submits that
the said judgment of the Division Bench
has been upheld by the Supreme Court in
the case of State of U.P. and Anr. Vs.
Pawan Kumar Tiwari and others, (2005) 2
SCC 10. He further submitted that even in
the subsequent round of litigation initiated
by the said Pawan Kumar Tiwari, reliefs
were granted to him by Division Bench of
this Court in its order dated 22.01.2021
passed in Writ A No. 6981 of 2020 (Pawan
Kumar Tiwari Vs. State of U.P. and 4 Ors.)
in which a direction was issued to the State
to take appropriate steps for correct
placement of the said petitioner in the list
of selectees.

18. On the other hand, the contention
of Shri Neeraj Tripathi and Shri Nisheeth
Yadav is that once the Supreme Court in
the case of Saurav Yadav (supra) declined
to issue any mandamus in favour of the
concerned petitioners who had claimed
absorption against unfilled vacancies, no
relief can be granted to the petitioner, even
if it is held that instead of one post, two
posts
were
filled
up
by
horizontal
reservation
accorded
to
the
women
category candidates.

19. Shri Nisheeth Yadav and Shri
Neeraj Tiwari have also relied upon
paragraph no. 49 of the judgment which
reads as under:-

"49.
If
there
are
unfilled
vacancies, it is up to the authorities to
act purely in terms of the statutory
provisions concerned. Neither any case
for issuance of mandamus, as prayed
for, has been made out nor do we
think it appropriate to pass any orders
directing the authorities concerned to
absorb the petitioners against unfilled
vacancies.
478 INDIAN LAW REPORTS ALLAHABAD SERIES

20.

Shri
Nisheeth Yadav
has
vehemently argued that as on today, despite
the aforesaid legal position settled by the
Apex Court in the case of Saurav Yadav
(supra), the petitioner cannot get any relief.
He has argued that it is a case where the
legal position was not clear at the time
when the writ petition was filed and the
matter was ultimately referred to the larger
Bench in the year 2015 and the larger
Bench (Full Bench) decided this writ
petition on 16.07.2019, but even thereafter,
the matter went to the Apex Court and,
ultimately, has been settled in terms of the
judgment rendered in the case of Saurav
Yadav (supra). Elaborating his arguments
based upon the concept of "prospective
overruling", Shri Nisheeth Yadav has
placed reliance upon following authorities -

i. Ashika Prasad Shukla vs. Dist.
Inspector of Schools, Allahabad & Ors.
(1998) 3 AWC 2150.

ii. Somaiya Organics (India) Ltd. &
Anr. vs. State of U.P. & Anr. (2001) 5
SCC 519.

iii. Kailash Chand Sharma vs. State
of Rajasthan & Ors. (2002) 6 SCC 562.

iv.
Employees'
State
Insurance
Corpn. & Ors. vs. Jardine Henderson
Staff Association & Ors. (2006) 6 SCC
581.

v. Union of India & Ors. vs.
Chaman Rana with Union of India &
Ors. vs. Gulshan Kumar Sharma (2018)
5 SCC 798.

21. After carefully examining the
authorities cited by Shri Nisheeth Yadav, it
would be pertinent to observe that Golak
Nath was overruled in Keshwanand Bharti
v. State of Kerala, (1973) 4 SCC 225 : AIR
1973 SC 1461, but the principle laid down
in Golak Nath in respect of prospective
overruling has not been touched in
Keshwanand Bharti rather in its subsequent
decisions, the Supreme Court has reiterated
the principle of prospective overruling as
laid down in Golak Nath. In Managing
Director
E.C.I.L.,
Hyderabad
v.
B.
Karunakar, JT 1993 (6) SC 1 at p. 46 para
73 : ((1993) 4 SCC 727 : AIR 1994 SC
1074), it was held as under :

"As a matter of constitutional law
retrospective
operation
of
overruling
decision is neither required nor prohibited
by the Constitution but is one of judicial
attitude depending on the facts and
circumstances in each case, the nature and
purpose of the particular overruling
decision seeks to serve. The Court would
look into the justifiable reliance on the
overruled case by the administration ;
ability to effectuate the new rule adopted in
the overruling case without doing injustice
; likelihood of its operation whether
substantially burdens the administration of
justice or retard the purpose..... This Court
would adopt retroactive or non-retroactive
effect of a decision not as a matter of policy
determined in each case after evaluating
the merits and demerits of the particular
case by looking to the prior history of the
rule in question, its purpose and effect and
whether
retroactive
operation
will
accelerate or retard its operation. The
reliance on the old rule and the cost of the
burden of the administration are equally
germane to give effect to prospective or
retrospective operation."

22. When the Apex Court decided in
Golak Nath case that the power of
amendment under Article 368 of the
Constitution did not allow Parliament to
abridge the fundamental rights in Part III of
the Constitution, it made the decision
operative with prospective effect. This was
done in recognition of the fact that between
9 All. Ajay Kumar Vs. State of U.P. & Ors.
479
the coming into force of the Constitution on
26-1-1950 and the date of the judgment,
Parliament had in fact exercised the
power of amendment in a way which,
according to the decision in Golak Nath
was void. If retrospectivity were to be
given to the decision, "it would introduce
chaos and unsettled conditions in our
country". On the other hand it also
recognised that such possibility of chaos
might be preferable to the alternative of a
totalitarian rule. The Court, therefore,
sought
to
evolve
"some
reasonable
principle to meet this extraordinary
situation".
The
reasonable
principle
which was evolved was the doctrine of
prospective overruling.

23.
 Although
the
doctrine
of
"prospective overruling" was drawn from
American jurisprudence, it has/had, of
necessity,
to
develop
indigenous
characteristics, the parameters of the power,
as far as this country is concerned, were
sought to be laid down in Golak Nath itself
when it was said: (SCR p. 814 B-D)

"As this Court for the first time has
been called upon to apply the doctrine
evolved in a different country under
different circumstances, we would like to
move warily in the beginning. We would lay
down the following propositions: (1) The
doctrine of prospective overruling can be
invoked only in matters arising under our
Constitution; (2) it can be applied only by
the highest court of the country, i.e., the
Supreme Court as it has the constitutional
jurisdiction to declare law binding on all
the courts in India; (3) the scope of the
retroactive operation of the law declared by
the Supreme Court superseding its earlier
decisions is left to its discretion to be
moulded in accordance with the justice of
the cause or matter before it."

The parameters have not been adhered
to in practice.

24.

The
word
"prospective
overruling" implies an earlier judicial
decision on the same issue which was
otherwise final. That is how it was
understood in Golak Nath. However, the
Supreme Court has used the power even
when deciding on an issue for the first time.
Thus in India Cement Ltd. v. State of T.N.
when Apex Court held that the cess sought
to be levied under Section 115 of the
Madras Panchayats Act, 1958 as amended
by
Madras Act
18
of
1964,
was
unconstitutional, not only did it restrain the
State of Tamil Nadu from enforcing the
same any further, it also directed that the
State would not be liable for any refund of
cess already paid or collected.

25. The maxim of equity which is
founded upon justice and good sense was
applied as well as other maxim lex non
cogit ad impossibilia - the law does not
compel a man to do what he cannot
possibly perform. The applicability of the
aforesaid maxim has been approved by this
Court in Raj Kumar Dey v. Tarapada Dey
and Gursharan Singh v. New Delhi
Municipal Committee.

26. It is well settled that declaration of
law can be made prospective i.e. operative
from the date of the judgment. Apex Court
in several decisions has laid down the law
and declared it to be operative only
prospectively. The Constitution Bench of
Supreme Court in Somaiya Organics
(India) Ltd. v. State of U.P. has discussed at
length
the
principles
of
prospective
overruling.

27. Ultimately, it is a question of
Court's discretion and is, for this reason,
480 INDIAN LAW REPORTS ALLAHABAD SERIES
relatable directly to the words of the Court
granting the relief."

28. In Harsh Dhingra v. State of
Harayana (2001) 9 SCC 550, the Supreme
Court held that Prospective declaration of
law is a device innovated by this Court to
avoid reopening of settled issues and to
prevent multiplicity of proceedings. It is
also a device adopted to avoid uncertainty
and avoidable litigation. By the very object
of prospective declaration of law it is
deemed that all actions taken contrary to
the declaration of law, prior to the date of
the declaration are validated. This is done
in larger public interest.

29. In the case of Union of India &
Ors. vs. Chaman Rana (supra), the
Supreme Court was dealing with a case
where belated claim was made by the
concerned employee seeking promotion
and the Apex Court held that direction for
retrospective consideration for promotion
after 17 to 20 years in the light of belated
claim was wholly untenable.

30. There is no dispute regarding the
law laid down as explained by the Supreme
Court in the aforesaid authorities. However,
in the present case, the concept of
prospective overruling or granting any
relief to the petitioner has to be examined
in light of the fact that the impugned
selection was made in 2004, the writ
petition was immediately filed in 2005,
affidavits were exchanged during the
course of time and the matter was referred
to the larger Bench in 2015. The larger
Bench, i.e., the Full Bench, decided the
case in 2019 and the Apex Court settled the
controversy in 2021 and, thereafter, this
writ petition has been heard in the year
2023.

31. Further, an interim order was
passed in the present case in 2005 which
was modified in 2009 protecting the
services of the respondent nos. 4 and 5 who
have already retired after getting benefits of
the interim order. This Court in order to
balance equities during the pendency of the
writ petition passed in the modification
order dated 27.05.2009.

32. The Maxim "Actus Curiae
Neminem Gravabit" means that nobody
should be allowed to suffer for the fault
of the court. This is an important Latin
Maxim
of
Equity,
which
has
wide
application in the subordinate as well as
higher judiciary of India. It would be
relevant to refer to Inderchand Jain
(Dead) through LRs. Vs. Motilal (Dead)
through LRs., (2009) 14 SCC 663, wherein
the Apex Court observed that the said
maxim is founded upon equity & justice
and helpful in the administration of law.

33.

In
the
aforesaid
factual
background of the case, if, merely delay in
disposal of the writ petition for the
aforesaid reasons, is taken as a ground to
deny relief to the petitioner, that would be a
mockery of the legal system and the
institution of justice for which it has been
established. In the considered opinion of
this Court, particularly taking light from the
paragraph no. 44 and its various subparagraphs in the judgment of Saurav
Yadav (supra), I proceed to consider the
question on grant of relief to the petitioner
and I find that different category candidates
were petitioners before the Apex Court and
denying relief to one set of petitioners in
paragraph no. 49 and granting some relief
to other set of petitioners in paragraph no.
44 is a matter of concern in the present set
of facts and circumstances.
9 All. Raza Hussain @ Raja Miyan Vs. Addl. Commissioner Lko. & Ors.
481

34. The Supreme Court, in paragraph
no. 42, had ordered for issuance of letter of
appointment to the concerned candidates
and it was made clear in paragraph no. 44.6
that for all purpose, including seniority,
pay-fixation and other issues, employment
of such candidates shall be reckoned from
the date of appointment orders are issued.

35. In this regard, Anil Tiwari submits
that the petitioner is entitled not only for
appointment on any post lying vacant, his
seniority and other benefits should also be
computed and adjusted according to the
seniority which the petitioner would have
got, had the impugned action not been
taken to the detriment of his interest. The
learned
counsel
for
the
respondents
however submit that the petitioner being
candidate of a different cadre, cannot be
accorded any benefit of seniority or
otherwise as the issue involved relates to a
different cadre altogether.

36. While concluding the judgment, I
find that the Commission was not justified
in filling up two posts by according
horizontal reservation to women candidates
but it could fill up only a single post and,
therefore, the petitioner, being next in the
order of merit, should have been appointed
on the vacant post.

37. In view of the above, the writ
petition succeeds and is partly allowed.

38. Without disturbing any aspect of
the services rendered by respondent nos. 4
and 5 during the pendency of the writ
petition, a direction is issued to the
respondent
nos.
1
and
2
to
offer
appointment to the petitioner on any vacant
post in the cadre. In case, the petitioner
accepts the offer of appointment, the
respondents shall be at liberty to take a
decision in accordance with law with
regard to the benefits that petitioner would
be entitled to as per para 44.6 of the
judgment of Saurav Yadav (supra).
----------
(2023) 9 ILRA 481
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.08.2023

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ-C No. 2610 of 2023

Raza Hussain @ Raja Miyan ...Petitioner
Versus
Addl. Commissioner Lko. & Ors.
 ...Respondents

Counsel for the Petitioner:
Mahendra Pratap Singh, Ashutosh Mishra

Counsel for the Respondents:
C.S.C., Dilip Kumar Pandey

Civil Law - Enemy Property Act, 1968 -
Sections 18B & 22A - U.P. Zamindari
Abolition and Land Reforms Act, 1950 -
Section
229-B
-
Revenue
suit
for
declaration of rights - Land recorded as
'enemy property' - Jurisdiction of civil
court and revenue authorities excluded by
Section 18B of 1968 Act - Effect of
retrospective validation under Section 22A
- No civil suit maintainable - Entry in
Khatauni not open to judicial scrutiny by
writ court - Remedy lies under 1968 Act -
Petition misconceived and dismissed.