# Ajay Prakash Mishra & Ors v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 729
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-21
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-prakash-mishra-ors-v-state-of-u-p-ors-47261
- **Pages:** 32

## Headnote

730 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C.

A. Service Law - Appointment/Selection -
Challenge to Selection Process - Uttar
Pradesh
Police
Constable
and
Head
Constable Service Rules, 2015 - Rules 15
(b), 15(c), 15(e) - As per chart, which has
been submitted before this Court on behalf of
the State, it indicates that vacant posts of
Constables (Civil Police & PAC) of the selection
year 2015 in respect of those candidates, who
either failed in physical efficiency test or
document verification, were carried forward for
the next selection year 2017. The contention of
the petitioners is to the effect that these posts
should be offered to the petitioners, and the
same posts are to be allotted in the same
process of selection. (Para 24)

At every stage in case the applicant does not
fall in the zone of consideration, nowhere,
discretion is available to the authority and in
every eventuality the post is to be carried
forward. It is equally well-settled that laying
down of relevant criteria for recruitment is
within
the
exclusive
domain
of
the
employer. The categorical procedure, which
contemplates in the Rules, 2015, nowhere,
provides any discretion to the recruitment
authority or the appointing authority to either
manipulate or show any favour in the process of
recruitment. (Para 25)

B. Power of judicial review - The power of
judicial review can be exercised in such matters
only if it is shown that the action of the
employer is contrary to any constitutional or
statutory provisions or is arbitrary or is vitiated
due to mala fides. (Para 25)

C. Doctrine of Estoppel - Once a person
takes part in the process of selection and
is not found fit for appointment, such
person is barred from challenging the
process of selection. Indirectly the petitioners
are questioning the recruitment process as
contemplated in Rule 15(e) and (g) of the Rules,
2015, which provide in every eventuality such
vacancies shall be carried forward. The conduct
of the petitioner in taking part in the selection
process would clearly disentitle him from
questioning the selection. (Para 26, 28)
D. Preparation of a wait list is not at all
obligatory
or
mandatory
unless
recruitment rules provide for the same in
addition to the select list. It is always open
to the employer not to prepare any wait list and
after declaring the result of the selected
candidates, to make appointment therefrom and
in case any vacancy remained unfilled, to make
a fresh selection instead of looking for a wait
list. (Para 35, 36, 38)

The petitioners have prayed for mandamus
commanding the respondents to lower the
respective category-wise merit and accord
selection to them on the vacant posts of
Constable (Civil Police/PAC). Such situation
eventually leads to preparation of wait list,
which is not contemplated in Rules, 2015. (Para
29, 30)

Competent authority has power to fix cutoff marks for preparation of select list.
Process of final selection had to be closed
at some stage.

## Text

_Characters 0–39,974 of 101,661. This is a partial read: ask again with offset=39974 for what follows._

7 All. Ajay Prakash Mishra & Ors. Vs. State of U.P. & Ors.
729
following of a precedent are primarily as
under:-

(a) The ratio of any decision has
to be understood in the background of the
facts of that case;

(b) A little difference in facts or
additional facts may make a lot of
difference in the precedential value of a
decision;

(c) The Courts should not place
reliance on decisions without discussing as
to how the factual situation fits in with the
fact situation of the decision on which
reliance is placed;

(d) Observations of Courts are
neither to be read as Euclid's theorems nor
as provisions of the statute and that too
taken out of the context;

(e) An additional or different fact
may make a world of difference between
conclusions in two cases;

(f) Disposal of cases by blindly
placing reliance on a decision is not proper;
and

(g) Each case depends on its own
facts and a close similarity between one
case and another is not enough because
even a single significant detail may alter
the entire aspect.

25. Considering the aforesaid principles
of law, it is apparent that the rules governing
the suspension in the present case are at
variance with the rules which were applicable
in the case of Ajay Kumar Choudhary
(supra) where there was a clear stipulation of
a suspension order coming to an end after 90
days in case the suspension order was not
extended. As regards the judgment of this
Court in the cases of Ram Ratan (supra)
and Radheyshyam Yadav (supra) passed by
this Court, suffice to state that the said
judgments were based on the judgment of the
Apex Court in the case of Ajay Kumar
Choudhary (supra) and once the judgment
in the case of Ajay Kumar Choudhary
(supra) itself is not applicable in the facts of
the instant case consequently the judgments
of Ram Ratan (supra) and Radheyshyam
Yadav (supra) would also not be applicable.
Thus, the Court does not find any merit in the
writ petition. Accordingly, the writ petition is
dismissed.
----------
(2021)07ILR A729
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.06.2021

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.

Writ -A No. 26813 of 2018 connected with
others cases

Ajay Prakash Mishra & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Seemant Singh, Sri Ashok Kumar Singh,
Sri Dhiraj Singh, Sri Ganesh Kumar, Sri
Rakesh Kumar, Sri Vibhu Rai, Sri Siddharth
Khare, Sri Pradeep Keshwarni, Ms. Atipriya
Gautam, Sri Vinod Kumar Mishra, Sri
Devesh Mishra, Sri Tarun Agarwal, Sri
Mujeeb Ahmad Siddqui, Sri Ashok Khare,
Sri H.N. Singh, Sri Vjay Gautam, Sri Anoop
Trivedi

Counsel for the Respondents:
730 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C.

A. Service Law - Appointment/Selection -
Challenge to Selection Process - Uttar
Pradesh
Police
Constable
and
Head
Constable Service Rules, 2015 - Rules 15
(b), 15(c), 15(e) - As per chart, which has
been submitted before this Court on behalf of
the State, it indicates that vacant posts of
Constables (Civil Police & PAC) of the selection
year 2015 in respect of those candidates, who
either failed in physical efficiency test or
document verification, were carried forward for
the next selection year 2017. The contention of
the petitioners is to the effect that these posts
should be offered to the petitioners, and the
same posts are to be allotted in the same
process of selection. (Para 24)

At every stage in case the applicant does not
fall in the zone of consideration, nowhere,
discretion is available to the authority and in
every eventuality the post is to be carried
forward. It is equally well-settled that laying
down of relevant criteria for recruitment is
within
the
exclusive
domain
of
the
employer. The categorical procedure, which
contemplates in the Rules, 2015, nowhere,
provides any discretion to the recruitment
authority or the appointing authority to either
manipulate or show any favour in the process of
recruitment. (Para 25)

B. Power of judicial review - The power of
judicial review can be exercised in such matters
only if it is shown that the action of the
employer is contrary to any constitutional or
statutory provisions or is arbitrary or is vitiated
due to mala fides. (Para 25)

C. Doctrine of Estoppel - Once a person
takes part in the process of selection and
is not found fit for appointment, such
person is barred from challenging the
process of selection. Indirectly the petitioners
are questioning the recruitment process as
contemplated in Rule 15(e) and (g) of the Rules,
2015, which provide in every eventuality such
vacancies shall be carried forward. The conduct
of the petitioner in taking part in the selection
process would clearly disentitle him from
questioning the selection. (Para 26, 28)
D. Preparation of a wait list is not at all
obligatory
or
mandatory
unless
recruitment rules provide for the same in
addition to the select list. It is always open
to the employer not to prepare any wait list and
after declaring the result of the selected
candidates, to make appointment therefrom and
in case any vacancy remained unfilled, to make
a fresh selection instead of looking for a wait
list. (Para 35, 36, 38)

The petitioners have prayed for mandamus
commanding the respondents to lower the
respective category-wise merit and accord
selection to them on the vacant posts of
Constable (Civil Police/PAC). Such situation
eventually leads to preparation of wait list,
which is not contemplated in Rules, 2015. (Para
29, 30)

Competent authority has power to fix cutoff marks for preparation of select list.
Process of final selection had to be closed
at some stage. In this case, Circular dated
15.11.1999 directed for preparation of select list
of the candidates equal to the number of
vacancies. Thus merit of last person in different
category is the cut-off marks of the merit. As
soon as select list is published on 24.6.2000,
selection process was closed. No direction can
be issued for lowering the merit, after closure of
the selection process. (Para 32)

A candidate who has not been selected
has no legal right to seek a writ of
mandamus commanding the respondents
to prepare a waiting list in the absence of
statutory rules. (Para 35, 36)

E.
Ordinarily
the
notification
merely
amounts to an invitation to qualified
candidates to apply for recruitment and on
their selection they do not acquire any right
to the post. Unless the relevant recruitment
rules so indicate, the State is under no legal
duty to fill up all or any of the vacancies. It is
not correct to say that if a number of vacancies
are notified for appointment and adequate number
of candidates are found fit, the successful
candidates acquire an indefeasible right to be
appointed, which cannot be legitimately denied.
(Para 31)
7 All. Ajay Prakash Mishra & Ors. Vs. State of U.P. & Ors.
731
State cannot act in arbitrary manner - The
decision not to fill up the vacancies has to be
taken bona fide for appropriate reasons. And if
the vacancies or any of them are filled up, the
State is bound to respect the comparative merit
of
the
candidates,
as
reflected
at
the
recruitment test, and no discrimination can be
permitted. (Para 31)

F. A pronouncement of law by a Division
Bench of this Court is binding on a
Division Bench of the same or a smaller
number of Judges, and in order that such
decision be binding, it is not necessary that it
should be a decision rendered by the Full Court
or a Constitution Bench of the Court. The earlier
decision of the coordinate bench is binding upon
any latter coordinate bench deciding the same
or similar issues. If the latter bench wants to
take a different view than that taken by the
earlier bench, the proper course is for it to refer
the matter to a larger bench. (Para 39 to 45)

Writ petition dismissed.( E-3)

Precedent followed:

1. G. Sarana Vs University of Lucknow (1976) 3
SCC 585 (Para 27)

2. Nanak Lal Vs Prem Chand Singhvi [AIR 1957
SC 425] (Para 27)

3. Prakash Shukla Vs Akhilesh Kumar Shukla
[1986 Supp SCC 285] (Para 27)

4. Manish Kumar Shahi Vs St.of Bihar [(2010)
12 SCC 576] (Para 28)

5. Amlan Jyoti Borooah Vs St. of Assam [(2009
3 SCC 227] (Para 28)

6. Ramesh Chandra Shah Vs Anil Joshi [(2013)
11 SCC 309] (Para 28)

7. Dr. Sarojkumari Vs R. Helen Thilakom & ors.
2017 (9) SCC 478 (Paras 4-12) (Para 15)

8. D. Saroj Kumari Vs R. Helen Thilakom [2017
(11) SCALE 366] (Para 28)
9. Bihar State Electricity Board Vs Suresh
Prasad & ors., AIR 2004 SC 1724 (Paras 6, 7,
30) (Para 14)

10. Shankarsan Dash Vs U.O.I., AIR 1991 SC
1612 (Paras 7, 8, 9, 10, 11, 31) (Para 15)

11. Govt. of Orissa V.s Harprasad Das, AIR 1998
S.C. 375 (Para 31)

12. Arthur Vs Jeen, AIR 2001 S.C. 1851 (Para
31)

13. Punjab State Electricity Board Vs Malkiat
Singh, AIR 2004 S.C. 5061 (Para 31)

14. U.O.I. Vs Kali Das Batish, (2006) 1 SCC 779
(Para 31)

15. Aryavrat Gramin Bank Vs Vijay Shanakr
Shukla, (2007) 12 SCC 413 (Para 31)

16. U.O.I. & ors. Vs S. Vinod Kumar & ors.,
(2007) 8 SCC 100 (Para 32)

17. Sri Kant Tripathi Vs St. of U.P., AIR 2001 SC
3757 (Para 33)

18. Surinder Singh & ors. Vs St. of Pun. & anr.,
(1997) 8 SCC 488 (Para 33)

19. St. of Bihar & ors. Vs Amrendra Kumar
Mishra, JT 2006 (12) SC 304 (Para 33)

20. U.P. State Road Transport Corporation &
anr. Vs Gobardhan & anr., AIR 1997 SC 1840
(Para 34)

21. St. of J & K & ors. Vs Sanjeev Kumar & ors.,
2005 (1) SCC 148 (Para 34)

22. U.P. Public Service Commission, Allahabad & anr.
Vs St. of U.P. & anr., 2007 (5) ADJ 280 (Para 35)

23. Kumar Sanjay Vs U.P. Public Service
Commission & ors., Civil Misc. Writ Petition No.
8530 of 2009, decided on 03.07.2009 (Para 36)

24. Chandra Prakash Yadav Vs St. of U.P. & 3
ors., Writ A No. 401 of 2021 (Para 37)
732 INDIAN LAW REPORTS ALLAHABAD SERIES
25. Ankit Yadav Vs St. of U.P. & 3 ors., Writ A
No. 1334 of 2021 (Para 38)

26. U.O.I. & anr. Vs Raghubir Singh (Dead) by
LRS. etc., (1989) 2 SCC 754 (Para 27, 28, 39)

27. St. of Tripura Vs Tripura Bar Association &
ors., (1998) 5 SCC 637 (Para 40)

28. Brijendra Kumar Gupta & ors. Vs St. of U.P.
& ors., 2000 (18) LCD 886 (Para 41)

29. Rajasthan Public Service Commission & anr.
Vs Harish Kumar Purohit & ors., (2003) 5 SCC
480 (Para 42)

30. Sant Lal Gupta & ors. Vs Modern Cooperative Group Housing Society Ltd. & ors.,
2010 (28) LCD 1688 (Para 43)

31. Safia Bee Vs Mohd. Vjahath Hussain @ Fasi,
(2011) 2 SCC 94 (Para 44)

Precedent cited:

1. Manish Kumar Vs U.O.I. & ors., Writ Petition
No. 183 of 2013 (Para 12)

2. Chandra Prakash Yadav Vs St. of U.P. & 3
ors., Writ A No. 401 of 2021 decided on
27.01.2021 (Para 13)

3. Ankit Yadav Vs St. of U.P. & 3 ors., Writ A
No. 1334 of 2021, decided on 05.02.2021 (Para
13)

4. Abhinav Anand Singh & ors. Vs St. of U.P. &
ors., 2016 SCC Online All (DB) (Para 7, 12, 13,
14)

5. St. of M.P. & ors. Vs Sanjay Kumar Pathak & ors.,
2008 (1) SCC 456 (Paras 15, 18, 19, 20, 24, 25)

6. Union Public Service Commission Vs S.
Thiagarajan & ors., 2007 (8) JT 451 (Para 15,
22)

7. Ashok Kumar & anr. Vs St. of U.P. & ors.,
2017 (4) SCC 357 (Paras 9, 10, 15, 12-22)

8. K.H. Siraj Vs High Court of Kerala & ors.,
2006 (6) SCC 395 (Paras 15, 62, 68, 71-75)
9. St. of U.P. & 5 ors. Vs Bhanu Pratap Rajput,
Special Appeal No. 725 of 2020, decided on
08.02.201 (Paras 11, 12, 13, 14, 15, 16)

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Heard Shri Ashok Khare, learned
Senior Advocate assisted by Shri Siddharth
Khare, Advocate; Shri H.N. Singh, learned
Senior Advocate assisted by Shri Seemant
Singh, Advocate; Shri Vijay Gautam,
learned Senior Advocate assisted by Shri
Pradeep
Kesharwani,
Advocate,
Ms.
Atipriya Gautam, Advocate, Shri Anoop
Trivedi, learned Senior Advocate assisted
by Shri Vibhu Rai, Advocate, Shri Vinod
Kumar Mishra, Advocate and Shri Devesh
Mishra, Advocate; Shri Tarun Agrawal,
Advocate
and
Shri
Mujeeb
Ahmad
Siddiqui, Advocate for the petitioners and
Shri Manish Goyal, learned Additional
Advocate General assisted by Shri Bipin
Bihari Pandey, learned Chief Standing
Counsel,
Shri
A.K.
Goyal,
learned
Additional Chief Standing Counsel, Shri
Sanjay Kumar Singh, learned Additional
Chief Standing Counsel, Shri Apurva
Hajela, learned Standing Counsel, Shri
Devesh Vikram, learned Standing Counsel,
Shri Sheetala Prasad, learned Standing
Counsel and Shri Vikram Bahadur Yadav,
learned Standing Counsel for the State
respondents.

2. All the writ petitions relate to
similar facts and raise common questions
of law, therefore, with the consent of the
counsel for the parties, all the petitions
have been heard together and are being
decided by means of a common judgment.

3. In this group of cases the
petitioners are seeking suitable direction
upon the respondents to consider their
7 All. Ajay Prakash Mishra & Ors. Vs. State of U.P. & Ors.
733
claim for selection and appointment on the
vacant posts of Constables (Civil Police)
and Provincial Armed Constabulary (PAC)
Direct
Recruitment-2015
initiated
in
pursuance of the advertisement dated
29.12.2015 published by the Additional
Secretary
(Recruitment),
U.P.
Police
Recruitment
and
Promotion
Board,
Lucknow.

4. For the sake of convenience, the
facts of leading Writ A No.26813 of 2018
are being noted below:-

5. Ajay Prakash Mishra and 216
others are before this Court with following
prayers:-

"i) Issue a writ, order or direction
in the nature of mandamus directing the
respondents to consider the claim of the
petitioners in respect of their selection on
the post of Police Constable and Constable
PAC against the posts, which are lying
vacant by lowering down the cut-off marks
in respect of different categories in the
selection of Police Constable and Constable
PAC for male candidates in pursuance of
advertisement dated 29.12.2015 issued by
the Additional Secretary (Recruitment),
Uttar Pradesh Police Recruitment and
Promotion Board, Lucknow and in the
selection of Police Constable for female
candidates in pursuance of advertisement
dated 29.12.2015 issued by the Additional
Secretary (Recruitment) Uttar Pradesh
Police Recruitment and Promotion Board,
Lucknow within stipulated period of time
as fixed by this Hon'ble Court.

ii) Issue any other suitable writ,
order or direction as this Court may deem
fit
and
proper
in
the
facts
and
circumstances of the case.

iii) Award the costs of the
petition to the petitioners."

6. The factual matrix, which is
relevant for considering the relief that falls
for consideration to this Court in all the
writ petitions, is common. A notification
was issued on 29.12.2015 by the Uttar
Pradesh Police Recruitment and Promotion
Board, Lucknow, notifying recruitment of
Constables (Civil Police) and Provincial
Armed Constabulary (for short 'PAC')
under the Uttar Pradesh Police Constable
and Head Constable Service Rules, 2015
(for short, Rules, 2015). The respondents
had notified 23200 posts of Constable
(Civil Police) and 5716 posts for PAC,
totalling 28,916, prescribing 17.2.2016 as
last
date
for
registration
of
online
applications and 22.2.2016 for submission
of the applications.

7. The Rule 15 (b), 15 (c) and 15 (e)
of the Rules, 2015 were challenged before
this Court in Ranvijay Singh and others
vs. State of UP and others1 for
considering the question regarding ideal
mode of selection to the post of Police
Constable, by written examinations, as
provided for under Rule 15 of the Uttar
Pradesh (Civil Police) Constable and Head
Constable Service Rules, 2008 (for short
'Rules, 2008') or on the basis of marks
awarded
in
10th
and
12th
Board
examination results, as provided for in the
Rules, 2015. The primary challenge raised
in the said writ petition under Article 226
of the Constitution of India, was to the
Rules 15(b), 15(c) and 15(e) of the Rules,
2015, whereby, Preliminary Written Test
and Main Written Examination, that was
provided for in the Rules, 2008, has been
done away with by providing selection on
the basis of marks awarded in 10th and
734 INDIAN LAW REPORTS ALLAHABAD SERIES
12th
Board
examination
results
or
qualification
equivalent
thereto,
as
provided under clause (8) of Rules, 2015.
In the said writ petition vide order dated
27.5.2016 the Court had directed the State
Government
to
continue
with
the
recruitment process, but restrained them
from declaring the result till the next date
of hearing. In the aforesaid writ petition,
the respondents had filed counter affidavit
stating that for the posts of 28,916 male
vacancies, 15,63,674 applications and for
5800 female vacancies, 56338 applications
were received. Finally, a Division Bench of
this Court had proceeded to dismiss the
writ petition with following observations:-

"25. Having so observed, we are
of the opinion that the object of any process
of recruitment for the post of constable is to
secure best and most suitable person for the
job, obviously avoiding patronage and
favoritism and, therefore, the selection
should be based on merits and should be
fair.
Therefore,
giving
paramount
importance to physical efficiency test, for
the post of constable, in our opinion, is
most fair and ideal way of recruitment,
coupled with their merit based on the marks
obtained by them in 10th and 12th standard
examinations conducted by a Board. It is
common knowledge that in the process of
recruitment
for
the
posts,
such
as
constables, lot of manipulation and unfair
tactics
are
adopted,
particularly
if
independent
written
examination
and
interviews are made as part of the process
of selection. In fact, this is all done away
with by the impugned Rules, which provide
for selection solely on the basis of the
marks obtained by candidates in 10th and
12th standard examinations and their
physical efficiency test and physical
fitness. Having regard to the fact that the
procedure for recruitment introduced and
prescribed by the impugned Rules, we are
satisfied that it will avoid patronage and
favoritism and the selection would be
absolutely transparent and it would not be
possible for any one to either manipulate or
show any favour in the process of
recruitment. Therefore, it cannot be stated
that it is either arbitrary or irrational and
violative of Article 14 of the Constitution
of India. As a matter of fact, the procedure
contemplated by the impugned Rules for
recruitment, discloses sufficient safeguards.
It does not deprive or discriminate any
eligible person from fair and transparent
selection based on merits. Insofar as
physical fitness is concerned, by Rules,
2015, as observed earlier, the physical
efficiency test is made more stringent,
commensurate with the post for which the
recruitment drive under these Rules is
undertaken without diluting the academic
performance.

26. It is now well settled, as
observed by the Supreme Court in
Chandigarh Administration (supra), that it
is for the rule-making authority or the
appointing authority to prescribe the mode
of selection and minimum qualification for
any recruitment. The courts can neither
prescribe the qualification nor entrench
upon the power of the authority concerned
so long as the qualifications prescribed by
the
appointing
authority/employer
is
reasonably relevant and has a rational
nexus with the functions and duties
attached to the post and are not violative of
any provisions of the Constitution, Statute
and Rules. It is equally well settled that
laying down of relevant criteria for
recruitment is within the exclusive domain
of the employer. Questions relating to the
constitution, pattern, nomenclature of posts,
cadres, categories, their creation/abolition,
prescription of qualifications and other
7 All. Ajay Prakash Mishra & Ors. Vs. State of U.P. & Ors.
735
conditions of service is within the exclusive
discretion and jurisdiction of the State,
subject, of course, to the limitations and
restrictions envisaged in the Constitution of
India and it is not for the courts, at any rate,
to direct the Government to have a
particular
method
of
recruitment
or
eligibility criteria or impose itself by
substituting its views for that of the State
[See P.U. Joshi (supra)]. Similarly, it is
well open and within the competence of the
State to change the rules relating to a
service and alter or amend or vary by
addition/subtraction of qualifications, the
eligibility criteria and other conditions of
service, from time to time, as the
administrative exigencies may need or
necessitate. There is no right in any person
to claim that the rules for recruitment
should be forever the same as the one
which is more suited to him. Merely
because written test has been restored by
the State once again by further amending
the Rules in 2017 would not render the
impugned Rules in Rules, 2015 arbitrary
and irrational. The power of judicial review
can be exercised in such matters only if it is
shown that the action of the employer is
contrary to any constitutional or statutory
provisions or is arbitrary or is vitiated due
to mala fides. We have applied all these
tests while examining the challenge and we
are satisfied that the impugned Rules are
neither arbitrary nor irrational nor contrary
to any constitutional or statutory provision
or are vitiated due to mala fides.

27. In the circumstances, we find
no merit in the challenge raised in these
writ petitions. The petitions are accordingly
dismissed and we hold that the mode of
selection to the post of police constable on
the basis of the marks awarded in 10th and
12th standard Board examination results
deserves no interference by this Court
or the impugned Rules cannot be declared
ultra vires the Constitution of India".

GROUND OF ATTACK

8. It has been submitted on behalf of
the petitioners that the Rules, 2015 provide
that the posts, which came to be vacant at
the time of verification of documents and
physical standard test, shall not be carried
forward for further selection. Such vacant
posts have to be filled up by next
meritorious
candidates
in
the
same
selection. The respondent Police Board, in
the garb of the Rules, 2015, is adamant not
to fill up the remaining vacant posts of
Constable (Civil Police) and Constable
(PAC) for the reasons best known to it. The
petitioners
are
under
the
zone
of
consideration as they are all selected and as
such, their valuable rights are going to be
frustrated on account of inaction of the
Police Board. In any eventuality the vacant
posts cannot be carried forward for the next
selection year. The Rules, 2015 do not
provide that in any eventuality in case at
the time of verification of documents and
physical standard test any candidate fails to
achieve the minimum required standard or
failed to clear the minimum physical
standard test then in such situation said post
is to be carried forward in the next
selection. The post is to be filled up from
the same selection process and therefore,
the merit was required to be lowered to
select the remaining candidates, who were
otherwise eligible.

9. I t is being claimed that the
petitioners
applied
under
different
categories and their category-wise merit is
given in paragraph-9 of the leading writ
petition. All the petitioners participated in
736 INDIAN LAW REPORTS ALLAHABAD SERIES
the physical efficiency test and secured
minimum prescribed 191.6 cutoff marks
and
were
declared
as
qualified.
Consequently, the petitioners were called
upon for appearing in the verification of
documents and physical efficiency test. It is
being claimed that all the petitioners
appeared
in
the
said
process.
The
petitioners could not reach to the cutoff
merit prescribed by the Police Board for the
verification of documents and physical
efficiency test. The Police Board had
prescribed the cutoff merit for 403.6 marks
(General Category); 394.73 marks (OBC)
and 380.3 marks (SC/ST).

10. In this backdrop, it is being
claimed that candidatures of large number
of candidates, whose mark sheets of ClassX and XII examinations were found to be
forged, were cancelled by the Police Board.
Similarly, the candidates, who found place
in the select list dated 15.5.2018 and
21.5.2018 and further whose marks sheet of
Class-X and XII examination were found to
be genuine, were called upon for appearing
in the medical examination in which again
large number of candidates were declared
as medically unfit, causing 3000 vacancies
of Constable (Civil Police) and Constable
(PAC). The petitioners, who are next in the
merit list, are to be considered by lowering
down the merit category-wise, otherwise,
the petitioners shall suffer irreparable loss
and injury.

GROUND OF DEFENCE

11. Per contra, Shri Manish Goyal,
learned
Additional
Advocate
General
appearing for the State submitted that the
advertisement was made on 29.12.2015 for
23,200 male and 5800 female posts of
Constable (Civil Police) and 5716 posts of
Constable (PAC). In pursuance of the
requisition, the Police Board initiated the
process of selection which was followed by
preparation of merit list on the basis of
marks obtained by them in 10th and 12th
standard
board
examination
results,
physical
efficiency
test,
scrutiny
of
documents & physical standard test,
selection and preparation of final merit list
on their part. Finally, the result was
declared on 15.5.2018 by the Police Board
on its official website. The candidates,
whose names were in the select list, were
required
to
appear
for
the
medical
examination by the appointing authority.
However, since a technical error was
occurred, the amended result of 4350
Constable
(PAC)
was
declared
on
24.5.2018 and 1366 Constable (PAC)
(General Category) and 13 Constable
(Female) (SC category) was declared on
25.1.2019 by the Selection Board on its
official website. Thereafter, the selected
candidates were sent to their respective
districts/battalions for the purpose of
medical
examination
and
character
verification and further process was carried
out at districts level for Constable (Civil
Police) and battalion level for Constable
(PAC). The selected candidates joined
police force and sent for training.

12. Shri Manish Goyal further
submitted that in terms of the direction
issued by Hon'ble Apex Court in Manish
Kumar vs. Union of India and ors2 the
guideline
was
issued
by
the
State
Government vide letter dated 18.5.2017
providing,
therein,
the
process
of
recruitment
of
remaining
1,01,619
vacancies of Constable in the State of Uttar
Pradesh. During the ongoing process of
selection of the year 2015 and in
compliance of the direction of Hon'ble
Apex Court dated 24.4.2017 the requisition
for recruitment process of the year 2017
7 All. Ajay Prakash Mishra & Ors. Vs. State of U.P. & Ors.
737
was sent to the Police Board on 12.1.2018.
The collective left over vacancies in the
Constable (Civil Police) Recruitment 2015
and Constable PAC Recruitment 2015 were
carried forward in the requisition of
Constable recruitment of the year 2018,
which was sent to the Police Board on
30.10.2018. The same vacancies have been
quantified as 2846 and a district-wise chart
has also been prepared giving the vacancies
occurred in each and every district. With
regard to the remaining posts of Constable
(PAC) similar procedure was initiated by
the respondents in terms of the result dated
21.5.2018. The Additional Director General
(PAC) vide his letter dated 17.10.2018
intimated that 18,580 posts of Constable
(PAC) were available for recruitment and
1366 remaining posts of Constable (PAC)
2015 whose result were not declared by the
Police Board till date, were included in the
category
of
ongoing
recruitment.
In
pursuance of the final result of police
constable as provided by the Police Board
on 21.5.2018, the entire process was
completed and the left over vacant posts
were carried forward by the Police Board in
the recruitment and selection process of the
subsequent recruitment year 2017.

13. Shri Manish Goyal has contended
that sole relief has been pressed by the
petitioners for lowering down the merit and
in absence of any serious challenge to the
Rule, 2015, the said relief cannot be
accorded to them under Article 226 of
Constitution of India. So far as the Rules,
2015 are concerned, the same has been
upheld by the Division Bench of this Court
in Ranvijay Singh (supra). Similar relief
and Rule 15 of the Rules, 2015 have also
been considered in Chandra Prakash
Yadav vs. State of UP and 3 others3 and
in Ankit Yadav vs. State of UP and 3
others4, wherein, the Court has held
that the action of the respondents is not
arbitrary and held that the recruitment
process has already over. The resultant
vacancies occurred on account of nonavailability or non-joining of the candidates
can only be filled up in the next selection
process and the cutoff of merit cannot be
lowered. Therefore, he submitted that
judicial propriety also demands that these
writ petitions are liable to be dismissed on
this very sole ground.

14. He further submitted that the
relief, as has been framed and drawn,
cannot be accorded under Article 226 of
Constitution of India. Eventually, such
relief would lead to preparation of wait list,
which is impermissible as per Rules, 2015
wherein, full fledged recruitment process is
defined. In any case the Rules, 2015 do not
provide any discretion to the selection
authority to lower down the cutoff merit
and preparation of a wait list. (Ref.: Bihar
State
Electricity
Board
vs.
Suresh
Prasad and others5 and Abhinav Anand
Singh and ors vs. State of UP and ors6).

15. Shri Manish Goyal further
submitted
that
mere
participation
in
different stages of selection process does
not vest any indefeasible right to a
candidate
much
less
a
legitimate
expectation to be included in the select list.
(Refer: State of M.P. And ors vs. Sanjay
Kumar Pathak and ors7; Union Public
Service Commission vs. S. Thiagarajan
and others8 and Shankarsan Dash vs.
Union of India9. He has also submitted
that
the
petitioners
have
already
participated in the selection process and
since very beginning they were known with
the conditions applicable to such selection
process. Subsequently, they cannot tern
738 INDIAN LAW REPORTS ALLAHABAD SERIES
around and challenge the selection process
after being declared unsuccessful. (Refer:
Dr. Sarojkumari vs. R. Helen Thilakom
and ors)10; Ashok Kumar and another
vs. State of UP and others11 and K.H.
Siraj vs. High Court of Kerala and
others12. Lastly, he has submitted that the
difference between physical efficiency test
under Rule 15 (c) and medical examination
under Rule 15 (g) of the Rules, 2015 is not
of nomenclature but is substantive. (Refer:
State of U.P. and 5 others vs. Bhanu
Pratap Rajput)13.

16. I have carefully considered the
submissions of learned counsel for the
parties and perused the records.

17. In order to understand the
challenge better, it would be appropriate to
have a close look at Rule 15 in the Rules,
2008 and the Rules, 2015. The Rules, 2008
provided for Preliminary Written Test,
followed by Physical Efficiency Test and
then Main Written Examination under
clauses (c), (d) and (e) of the Rule 15 of the
Rules,
2008.
The
basic
academic
qualification for direct recruitment to the
post of constable remained the same i.e.
one must possess the qualification of 12th
standard by a Board established by law in
India or a qualification recognized by the
Government
equivalent
thereto.
The
procedure
for
direct
recruitment
of
constable, as provided for under Rule 15 of
the Rules, 2008, consisting of the clauses
(c), (d) and (e), read thus:

"[15.
Procedure
for
direct
recruitment
of
Constable.--(a)
Application. -

(i) A candidate shall fill the
application form from one District only.
Regarding
allocation
of
Examination
Center, the candidate may give more than
one option. However, Board may allocate
center other than those indicated by the
candidate.

(ii) The details of the information
regarding educational qualification, age,
minimum qualifying standards for each
category of examination, including physical,
written, medical etc., minimum qualifying
marks for Written Examination subject wise,
copy of O.M.R. sheet for practice and other
important guidelines as may be determined
by the Board from time to time shall be
provided by the Board on its web-site or any
other method as it deems necessary.

(iii) The applications shall be
invited by the Board giving the applicants
adequate time for application. The candidate
shall be personally and solely responsible for
its accuracy and completeness, if Form of any
candidate found incomplete, wrong or having
inaccurate information, this Form shall be
cancelled.

(iv) An applicant shall certify
himself all his certificates and documents and
be responsible for their genuineness and
correctness.

(v) The application form may also
include identification details like Unique
Identity
Number,
thumb
and
finger
impressions, photograph or bio metries in
appropriate manner as prescribed by the
Board from time to time.

(vi) The head of the department
may fix an application fee for any
recruitment.

(vii) The Board shall have the
right to summarily reject the candidature of
an applicant for any incompleteness or
7 All. Ajay Prakash Mishra & Ors. Vs. State of U.P. & Ors.
739
inaccuracy or variation or conflict with any
previous
or
subsequent
information
submitted by the candidate.

(viii) The Government may change
the number of vacancies for any recruitment
at any time before the first examination and
may also cancel any recruitment at any time
or stage of recruitment without assigning any
reason thereof.]

[(b) Call Letter. - Call letters for
candidate shall be made available at least ten
days before the examination.

(c) Preliminary Written Test. -
Candidates whose applications are found to
be correct may be required to appear in an
objective type preliminary written test of
qualifying nature. The test shall be of one
paper of 300 marks and contain questions on
general knowledge, current affairs, reasoning
ability and numeric ability of appropriate
level, the detailed syllabus for which shall be
notified by the Board from time to time. The
candidate who fails to obtain 35% marks
shall not be eligible for recruitment. From the
candidates who pass the preliminary written
test, a number equal to ten times the number
of vacancies shall be eligible for the physical
Efficiency Test.

(d) Physical Efficiency Test. - The
eligible candidates shall be required to appear
in a Physical Efficiency Test which shall be
of 100 marks. The procedure for conducting
the Physical Efficiency Test shall be such as
prescribed in Appendix-2.

(e) Main Written Examination. -
The eligible candidates who qualify Physical
Efficiency Test shall be required to appear in
the main written examination which will be
of objective type shall carry 300 marks. The
written paper will consist of questions
covering, general awareness, mental ability,
reasoning and comprehension. The detailed
syllabus for the examination shall be notified
by the Board. The procedure for conducting
written examination shall be such as
mentioned in Appendix-3. Candidates who
fail to obtain 35% marks in the main written
examination shall not be eligible for
recruitment.

(f) Scrutiny of Documents and
Medical Examination. - The Board shall
prepare a merit list for each category of
candidates on the basis of total marks
obtained by the candidates according to the
orders of the State Government and the
provisions of enactments for the time being in
force.

The scrutiny of documents of the
above candidates shall be carried out as per
Appendix-4. In case any document is found
to be manipulated, inaccurate or forged
during the scrutiny or at any time after the
scrutiny, the candidature of the applicant will
be cancelled at the discretion of the Board
and Head of the Department. Those
candidates whose documents are found in
order will undergo for Medical Examination
as per Appendix-5.

Note. - The Medical Board shall
examine the candidate and deficiencies
thereof such as knock knee, bow-legs, flat
feet, varicose veins, distant and near vision,
colour blindness, hearing test comprising of
Rinne's test, Webber's test and shall also
tests for vertigo, speech defects etc. of the
candidates as may be notified from time to
time by the State Government.

(g) Selection and Merit List. -
The Board shall prepare a final select list of
740 INDIAN LAW REPORTS ALLAHABAD SERIES
candidates in order of their merit, keeping
in view the reservation policy of the State.

If two or more candidates obtain
equal marks, preference will be given to
the candidates who have obtained higher
marks in the main written examination. If
two or more candidates secure the same
marks in main written examination then
the candidate who are older will be
placed higher in the merit list. In case
two or more candidates have the same
date of birth, the candidates possessing
preferential qualification as mentioned in
Rule 9 will be placed higher in the merit
list.

The final list shall be published in
Website/Notice Board. This list shall be
forwarded to the Head of Department, who
will forward it to the Appointing Authority
for further action.]

Note. - If two or more candidates
obtain equal marks then the merit list
would be finalized, according to the
following procedure: -

(i) Such candidate will be given
preference,
having
Preferential
qualification if any. A candidate having
more than one preferential qualification
will get benefit of only one preferential
qualification.

(ii) If despite the above, two or
more candidates have the same rank then
such candidate will be given preference
who secures higher marks in the main
written examination.

(iii) If despite the above two or
more candidates have equal marks then
such candidate will be given preference
who is older in age.

(iv)
If
in
spite
of
above
consideration still the marks are equal, and
date of birth is same and marks in the main
written examination are also the same then
such candidate will be given preference in
order of the first letter of the English
alphabet of the first name as mentioned in
High School Certificates.

The merit-list shall be published
in website/Notice Board.

(ii) The Board shall prepare a
select list of candidates in order of the
merit, keeping in view the reservation
policy guidelines and the total number of
vacancies notified to the Board which will
be subject to character verification by the
Appointing Authority. The select list shall
be forwarded to the Head of Department
who will after approval forward it to the
Appointing Authority for further action.]"

18. The Rules, 2015 were notified by
the State Government in exercise of the
powers under clause (c) of sub-section (2)
of Section 46 read with sub-section (3) of
the said Section and Section 2 of the Police
Act, 1861 on 02.12.2015 and all other
powers enabling him, in this behalf and in
supersession of all existing rules or orders
issued in this behalf. The Rules, 2015 were
framed with an object to regulate the
selection, promotion, training, appointment,
determination of seniority and confirmation
etc. of Constables and Head Constables of
the police in Uttar Pradesh Police Force.
By the Rules, 2015, procedure laid down
under Rules, 2008, in particular, clauses
(c), (d) and (e) thereof, for recruitment has
been done away with. In other words, under
the Rules, 2015, clauses (b), (c) and (e)
thereof in particular, the Preliminary
Written Test and the Main Written
Examination has been done away with and
7 All. Ajay Prakash Mishra & Ors. Vs. State of U.P. & Ors.
741
now it is made on the basis of 10th and
12th standard Board examination results or
qualification
equivalent
thereto,
as
provided under clause (8) of these Rules
was introduced, followed by a Physical
Efficiency Test.