# Akhilesh Kumar & Ors v. The State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 594
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-07
- **Case number:** Writ A No. 12559 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-kumar-ors-v-the-state-of-u-p-ors-51706
- **Pages:** 6

## Headnote

Service Law - U.P. Secondary Education
Services Selection Board - TGT Recruitment
2021 - Preparation of waiting list - Adjustment
against unfilled vacancies.
Once the main select list exhausted, vacancies
remaining unfilled to be offered strictly on merit
from the waiting list - Open category is "open
to all" - Reserved category candidates having
higher marks cannot be denied adjustment
merely because the vacancy is of general
category - Migration permissible from reserved
to open, not vice-versa. (Paras 11-16)

Reservation - Principle of migration -
Vertical reservations.
Law
well-settled
that
reserved
category
candidates securing higher marks than last cutoff of general category migrate to open
category - No migration from general to
reserved category - Respondents' action in
adjusting lower-merit general candidates over
higher-merit OBC candidates held impermissible.
(Paras 12-15)

Public Employment - Illegality in selection
- Rectification.
No one can be appointed against rules in public
employment - If a wrong has been done by
misapplication of reservation principle, it must
be undone - Fresh panel to be prepared from
waiting list after notice to already allotted
candidates. (Para 17)
Held : Notification dated 01.09.2023 whereby
lower-merit general category candidates were
adjusted against open vacancies quashed -
Respondents directed to prepare fresh panel
from waiting list in accordance with law. (Paras
16-18)
3 All. Akhilesh Kumar & Ors. Vs. The State of U.P. & Ors.
595
Writ Petition Disposed of with Directions.

CASE LAW DISCUSSED-

## Text

594 INDIAN LAW REPORTS ALLAHABAD SERIES
leading to his conviction and has been set
aside, for such reasons. The petitioner
would be entitled to all service and retiral
benefits including continuity excluding
salary between 18.3.2016 to 31.12.2018 by
applying the principles of 'no work no pay'.
It is however reiterated that the period
between 18.3.2016 to 31.12.2018 shall be
counted for payment of retiral benefits.
"

15. In the facts of the present case the
petitioner has been dismissed from service
on 13.08.2010 and has attained the age of
superannuation
on
31.10.2021.
The
petitioner had admittedly not worked
during this period. The order of dismissal
has been found wanting on account of nonconsideration
of
petitioner's
conduct
leading to his conviction and has been set
aside for such reasons. The petitioner shall
be entitled to all the post retiral benefits
including
continuity
excluding
salary
between the period from 13.08.2010 to
31.10.2021 by applying principle of "no
work, no pay".

16. In view of the facts, circumstances
and discussion made hereinabove, the writ
petition is allowed.

17. The impugned orders dated
13.10.2010, 28.02.2020 and 19.03.2021 are
quashed and set aside.

18. The respondents are directed to
ensure the payment of all post retiral dues
to the petitioner within a period of two
months from the date a certified copy of
this order is served.
----------
(2024) 3 ILRA 594
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2024
BEFORE
THE HON'BLE AJIT KUMAR, J.
Writ A No. 12559 of 2023

Akhilesh Kumar & Ors. ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Atipriya Gautam, Sri Vijay Gautam (Sr.
Advocate), Sri Utkarsh Birla, Aarushi Birla

Counsel for the Respondents:
C.S.C., Sri A.K. S. Parihar

Service Law - U.P. Secondary Education
Services Selection Board - TGT Recruitment
2021 - Preparation of waiting list - Adjustment
against unfilled vacancies.
Once the main select list exhausted, vacancies
remaining unfilled to be offered strictly on merit
from the waiting list - Open category is "open
to all" - Reserved category candidates having
higher marks cannot be denied adjustment
merely because the vacancy is of general
category - Migration permissible from reserved
to open, not vice-versa. (Paras 11-16)

Reservation - Principle of migration -
Vertical reservations.
Law
well-settled
that
reserved
category
candidates securing higher marks than last cutoff of general category migrate to open
category - No migration from general to
reserved category - Respondents' action in
adjusting lower-merit general candidates over
higher-merit OBC candidates held impermissible.
(Paras 12-15)

Public Employment - Illegality in selection
- Rectification.
No one can be appointed against rules in public
employment - If a wrong has been done by
misapplication of reservation principle, it must
be undone - Fresh panel to be prepared from
waiting list after notice to already allotted
candidates. (Para 17)
Held : Notification dated 01.09.2023 whereby
lower-merit general category candidates were
adjusted against open vacancies quashed -
Respondents directed to prepare fresh panel
from waiting list in accordance with law. (Paras
16-18)
3 All. Akhilesh Kumar & Ors. Vs. The State of U.P. & Ors.
595
Writ Petition Disposed of with Directions.

CASE LAW DISCUSSED-

1. Indra Sawhney Vs U.O.I., 1992 Supp (3) SCC
217

2. R.K. Sabharwal Vs St. of Punjab, (1995) 2
SCC 745

3. Saurabh Yadav Vs St. of U.P., (2021) 4 SCC
542

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Utkarsh Birla, learned
counsel for the petitioners, Sri Neeraj
Tripathi,
learned Additional Advocate
General assisted by Sri J.N Maurya,
learned Chief Standing Counsel for the
State-respondents and Sri A.K.S. Parihar,
learned
counsel
appearing
for
the
respondent-Board.

2. Petitioners before this Court have
been applicants against the post of
Assistant Teachers in Trained Graduate
Teacher (TGT) by the UP Secondary
Education
Service
Selection
Board,
Prayagraj vide advertisement No.1/2001
dated 15.03.2021.

3. The examination for selection
namely the TGT Examination, 2021 was to
be held in respect of 12,603 vacancies that
were notified out of which 1742 vacancies
were in the subject of Hindi and boys
category. Out of 1742 vacancies, (Hindi
Subject) 1054 were published for general
category and 405 were published for OBC
category (boys). Petitioners being eligible
their candidature was considered. They
duly participated in the selection process.
However, they could not make it successful
for having secured below 307.38 marks to
find place in the final select list that formed
panel of selected candidates in the OBC
category.

4. Besides the final select list that was
prepared and notified as per rules, the
Selection Board also prepared a waiting list
of 25% as a combined panel of waiting list
candidates. This combined waiting list
prepared was notified on 28.12.2021 and
has been annexed as Annexure-5 to the writ
petition and this document is admitted to
the respondent-Board as well as Staterespondents.

5. This petition came to be filed with
the plea that in respect of those vacancies
where the candidates of the main panel list
did not turn up to join and thus having
remained vacant, respondents be directed to
prepare a list out of the waiting list in order
of preference considering merits for the
purposes
of
recommendations
and
appointments against such vacancies.

6. It transpires that during pendency
of this writ petition, the respondent
proceeded to prepare a panel from the
waiting list for the purposes of allotment of
schools qua vacancies where the candidates
originally placed in the merit list did not
turn up to join.

7. It is argued by learned counsel
appearing for the petitioners that in the
notification of panel dated 01.09.2023, a
large number of candidates of open
category have been recommended for the
allotment of college for the purposes of
appointment as Assistant Teacher (TGT)
though they were below in merit to the
petitioners. For example, one Mr. Atul
Singh s/o Ram Hriday Singh (general
cateogry) placed at Serial No.56 of the
notification dated 01.09.2023 had secured
307.38 marks but is below in merit to Nisha
596 INDIAN LAW REPORTS ALLAHABAD SERIES
Devi, she being senior in age vide Rule 12
of 1978 Rules as she is at serial No.150 of
the waiting list whereas Atul Singh is at
Serial No.158 (both have equal marks).
Again, Ms. Jyotsana Pandey who is there in
the notification dated 01.09.2023 at Serial
No.67 is at Serial No.209 of the waiting
list, is also below to petitioner No.2,
namely Nisha Devi and also petitioner no.4
namely Ms. Vandana Yadav who is at Serial
No.208 of the waiting list. The other
candidates below to Ms. Jyotsana Pandey
who have been given allotment vide
notification dated 01.09.2023, are all lower
in merit in the waiting list, to the
petitioners.

8. Learned counsel for the petitioners,
thus, has argued that respondents are not
justified in giving appointments against the
vacant situations from the waiting list of
those general category candidates who are
lower in merit than OBC/reserved category
candidates. The arguments is based on the
principle that in open category, all other
category candidates can get entry if they
are having higher merit to a candidate of
open category candidate.

9. It is argued further that the
'Samekit'
means
consolidated
list
of
selectees and in that case as and when the
vacancy occurs on account of non joining
of the selected candidates from the main
panel and if there is no other candidate
available in the main panel, the waiting list
candidate shall be offered appointment in
the order of merit. A candidate of open
category having higher marks than the
reserved category candidate will of-course
be given preference if the vacancy is of
open category, but in the event, reserved
category candidates with higher marks are
available then they will be taken to be of
open category to be adjusted against the
vacancy of general category, if it is still
vacant.

10. Countering the submission so
advanced by learned counsel for the
petitioners, Sri Neeraj Tripathi, learned
Additional
Advocate
General
has
contended that the Board has proceeded to
make
recommendations
to
make
appointment from the waiting list on the
basis of category of vacancy that has
remained vacant. He argued vehemently
that since the vacancies were of open
category, the respondents in their wisdom
rightly recommended the name of only
those candidates who belonged to general
category. He accordingly, tried to justify
that once the reservation has been applied
and vacancy becomes available, then there
will be no further migration from one
category to another category.

11. Having heard learned counsel for
the respective parties and the arguments
raised across the bar, the only point that
emerges out for consideration of this Court
is as to whether while making adjustment
against the available vacancies already
notified
from
the
waiting
list,
the
respondents
are
justified
in
making
allotment in favour of those candidates who
belong to that category of which the
vacancy has been assigned. In other words,
once the rule of reservation has been
applied then the vacancy would stand
assigned and no further migration from one
category to another category will be
permissible.

12. In matters of rule of reservation,
the law is very clear. While preparing a
merit list, the selecting body has to see
what is the last cut-off marks of each
category in respect of vertical reservation.
There is no migration from general to
3 All. Akhilesh Kumar & Ors. Vs. The State of U.P. & Ors.
597
reserved category but there is migration
from reserved category to general category
so there is only one way traffic and this is
why general category is called 'open
category'. In other words, on the principle
that merit is to be reckoned with in public
employment and the candidates having
merit have to be given preference despite
the categories to which they belong to. So,
in such event when merit of general
category is higher and a reserved category
candidate is able to score higher than the
last cut off of the general category then
such reserved category candidate would be
migrated to open category. But in the
matter of reserved category if a candidate
has applied as an general category
candidate may be he belongs to reserved
category he would be taken to be general
category candidate only. So there is no
migration
from
general
to
reserved
category. Similarly once the post has stood
assigned to a particular category of
reservation then for all purposes that
category would continue to belong to that
reserved category even while a candidate is
taken from the waiting list.

13. For instance, if a post for reserved
category is assigned and post assigned to
reserved category remains vacant for the
reserved category person not turning up,
then a candidate of that reserved category
will be taken from that merit list may be
lower than the candidate of a general
category available in the waiting list. But in
the event a post assigned to general
category remain vacant for a selected
candidate not turning up to join and the
main panel has got exhausted then the
candidate who is higher in merit, may be of
reserved category would stand migrated to
open category than a candidate of general
candidate
having
lesser
marks.
This
migration is absolutely permissible and is
in tune with the principles of reservation so
discussed from time to time by this Court
and the Supreme Court.

14. In my above view, I find support
from the judgment of Supreme Court in the
case of Indra Sawhney Etc. Etc v. Union
of India; 1992 (3) SCC (SUPP) 217,
applying test of merit on the touchstone of
Article 14 of the Constitution vis-a-vis the
reservation in public employment under
Article 16(4) of the Constitution, the Court
justified migration of reserved category
candidates from their reserved category to
the open category upon scoring above or
matching the last cut off/merit of the open
category which is otherwise also known as
general category. Vide paragraph 811 of the
judgment, the Court has observed "it is well
to remeber that the reservations under
Article 16(4) do not operate like a
communal reservation. It may well happen
that some members belonging, to say
Scheduled Castes get selected in the open
competition field on the basis of their own
merit; they will not be counted against the
quota reserved for Scheduled Castes; they
will be treated as open competition
candidates." This above principle by the
Constitution Bench was further more
elaborated and precisely too in the case of
Saurabh Yadav and ors vs. State of UP &
ors; 2021 (4) SCC 542. The Court though
in that case was also dealing with
horizontal reservation more especially in
the matter of female reservation, but
supplementing the view of majority,
Ravindra Bhatt, J. observed that open
category is not a quota but is available to
all men and women alike to vertical and
horizontal
reservations.
The
Bench
referring
to
judgment
of
another
Constitution Bench in case of R.K.
Sabharwal v. State of Punjab; 1995 (2)
SCC 745 vide its paragraph 15 held thus:
598 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In R.K. Sabharwal v. State of
Punjab15 the Constitution Bench of this
Court
considered
the
question
of
appointment and promotion and roster
points vis--vis reservation and held thus:

When a percentage of reservation
is fixed in respect of a particular cadre and
the roster indicates the reserve points, it
has to be taken that the posts shown at the
reserve points are to be filled from amongst
the members of reserve categories and the
candidates
belonging to
the
general
category are not entitled to be considered
for the reserved posts. On the other hand
the reserve category candidates can
compete for the non-reserve posts and in
the event of their appointment to the said
posts their number cannot be added and
taken into consideration for working out
the percentage of reservation. Article 16(4)
of the Constitution of India permits the
State Government to make any provision
for the reservation of appointments or posts
in favour of any Backward Class of citizens
which, in the opinion of the State is not
adequately represented in the Services
under the State. It is, therefore, incumbent
on the State Government to reach a
conclusion
that
the
Backward
Class/Classes for which the reservation is
made is not adequately represented in the
State Services. While doing so the State
Government may take the total population
of a particular Backward Class and its
representation in the State Services. When
the State Government after doing the
necessary exercise makes the reservation
and provides the extent of percentage of
posts to be reserved for the said Backward
Class then the percentage has to be
followed strictly. The prescribed percentage
cannot be varied or changed simply
because some of the members of the
Backward
Class
have
already
been
appointed/promoted against the general
seats. As mentioned above the roster point
which is reserved for a Backward Class has
to
be
filled
by
way
of
appointment/promotion of the member of
the said class. No general category
candidate can be appointed against a slot
in the roster which is reserved for the
Backward Class. The fact that considerable
number of members of a Backward Class
have been appointed/promoted against
general seats in the State Services may be a
relevant factor for the State Government to
review
the
question
of
continuing
reservation for the said class but so long as
the instructions/rules providing certain
percentage
of
reservations
for
the
Backward Classes are operative the same
have to be followed. Despite any number of
appointees/promotees belonging to the
Backward Classes against the general
category posts the given percentage has to
be provided in addition.?
(emphasis added)

15. In the case in hand, it is clear that
the merit list was finally prepared and the
cut-off of the open category was much
more than the OBC and SC/ST category
and so there was no question of any
migration of a reserved category candidate
to open category but once merit panel got
exhausted and there arose question of
getting candidates from the waiting list
against unfilled vacancies then in that
waiting list, an open category candidate
whose merit was less than the reserved
category candidate could not have marched
ahead of such reserved category candidate
to occupy the post only on the ground that
the post had fallen vacant in the open
category. This upon the above principles of
law
discussed
was
absolutely
impermissible.
Concluding
on
the
principles of migration from reserved
category to open category and the concept
3 All. Smt. Kamar Jahan Vs. State of U.P. & Ors.
599
of reservation, supplementing the judgment
(delivered by Justice U.U. Lalit, J. as His
Lordship then was), Justice Ravindra Bhatt
observed that "reservations, both vertical
and horizontal, are method of ensuring
representation in public services. These are
not to be seen as rigid ?slots?, where a
candidate?s merit, which otherwise entitles
her to be shown in the open general
category, is foreclosed, as the consequence
would be, if the state?s argument is
accepted. Doing so, would result in a
communal reservation, where each social
category is confined within the extent of
their reservation, thus negating merit. The
open category is open to all, and the only
condition for a candidate to be shown in it
is merit, regardless of whether reservation
benefit of either type is available to her or
him."

16. In such above view of the
matter and legal proposition conceived and
applied as law of reservation, since the
respondents have admitted that they have
adjusted the general category candidate
against the vacancy that remained vacant
even after the main merit panel got
exhausted, despite their marks being lesser
to the OBC category candidate, in my
considered view, it was a wrong that
needed
to
be
rectified
by
offering
appointment to OBC category candidate or
those having higher marks than the general
category candidates in the waiting list.

17. The stand taken by the
selection board and the state respondents,
thus, cannot be sustained in law. No one
can be appointed against rules in public
employment,
may
be
interpreting
it
wrongly or mistakenly and if a wrong has
been done it must be undone. Accordingly,
respondents are directed to prepare panel
afresh in the light of law discussed above
and the observations made to make
adjustments of waiting list candidates
against
available
vacancies
that
got
wrongly allotted vide notification dated
01.09.2023. The respondents shall be
issuing notices to the candidates who have
been notified for the purposes of allotment
on 01.09.2023, if already joined inviting
their objections and thereafter fresh panel
shall be prepared from the waiting list. The
notification dated 01.09.2023 shall abide by
the fresh notification.

18. This petition stands disposed
of in above terms.
----------
(2024) 3 ILRA 599
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.02.2024
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 12827 of 2023

Smt. Kamar Jahan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar Singh, Sri Abhishekh S.
Mishra

Counsel for the Respondents:
C.S.C., Sri S.K. Srivastava

Service Law - U.P. Nagar Palika NonCentralized Services Retirement Benefit
Regulation, 1984 - Regulation 7(1) - Family
Pension - Employee died in harness after 9
years, 10 months, 7 days service - Whether
shortfall of 1 month 23 days disentitles widow.
Held: Article 468, U.P. Civil Service Regulations
mandates rounding of fractions of three months
and above to a completed half year - Thus,
deceased's service period to be reckoned as 10
years - Family entitled to consideration for
pension under Note (1) to Regulation 7(1), even
prior to 2016 amendment. (Paras 14-17)

Pension - Circular dated 18.04.2016 -
Nature.