# Anand Bihari v. State of U.P. & Ors

- **Citation:** (2022) 2 ILRA 899
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-09
- **Case number:** Writ-A No. 15873 of 2021
- **Bench:** Surya Prakash Kesarwani, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anand-bihari-v-state-of-u-p-ors-47556
- **Pages:** 10

## Headnote

A. Service Law - Medical Council of India
Minimum Qualification for Teachers in
Medical Institutions Regulations, 1998challenge
to-appointment-unexplained
delay of 4 years in filing the writ petitionpost of
lecturer-cum-Statistician is a
specialized post in a medical fraternity
and the prescription of qualification is a
specialized task of the experts being
academicians which cannot be made a
subject matter of a judicial review,
particularly when there is nothing on
record to show that the rule making
authority has no legislative competence to
lay down the qualification-limitation does
not strictly apply to proceedings under
Article 32 or 226 of the Constitution of
India, nevertheless, such rights cannot be
enforced after an unreasonable lapse of
time-delay defeats equity-it is a trite law
900 INDIAN LAW REPORTS ALLAHABAD SERIES
that where the writ petitioner approaches
the High Court after a long delay, reliefs
prayed for may be denied to them on the
ground of delay and laches irrespective of
the fact that they are similarly situated to
the other candidates who obtain the
benefit of the judgment.(Para 1 to 30)

The writ petition is dismissed. (E-6)
List of Cases cited:

## Text

2 All. Anand Bihari Vs. State of U.P. & Ors.
899
entertain contempt petition, the appeal
under Chapter VIII, Rule 5 of the Rules of
the Court, is not maintainable and the
contention of the learned Counsel for the
appellant, therefore, is rejected."

22. This Court having heard the
learned counsel for the parties and having
gone through the judgments referred to by
the learned Senior Counsel for the
appellants and also Mr. Ratnesh Chandra,
learned
counsel
appearing
for
the
respondent no. 1, finds that the Contempt
Judge has expressed a definite opinion in
his judgment dated 05.01.2022 that the
Writ Court order dated 07.10.2015 has
been complied with, even though not in so
many words, by observing that no cause of
action survives and by consigning the
contempt application to record. Such an
order dismissing the contempt application
would not be amenable to intra Court
appeal under Chapter VIII Rule 5 of the
Rules of the Court and there is no
observation at all in the exercise of writ
jurisdiction under Article 226 of the
Constitution as argued by the learned
Senior Counsel. In view of the judgment in
the case of J.S. Parihar Vs. Ganpat
Duggar; (1996) 6 SCC 291, it will always
be open for the appellants to challenge the
orders passed by the respondents before the
appropriate Forum.

23. The preliminary objection raised
regarding maintainability of the special
appeal is sustained and the special appeal is
dismissed as not maintainable with a cost
of Rs. 50,000/- which is to be paid by the
appellants in the Registry of this Court
within four weeks from today. In case of
failure to deposit the cost as directed by
this Court within the time prescribed, it
shall be the duty of the Senior Registrar of
this Court to inform the District Magistrate,
Lucknow of the order passed by this Court
and the District Magistrate shall proceed to
collect the cost as arrears of land revenue
from the appellants and to deposit it in this
Court.
----------
(2022)02ILR A899
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.11.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ-A No. 15873 of 2021

Anand Bihari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vineet Kumar Singh, Sri Risabh Srivastava,
Sri H.N. Singh (Sr. Adv.)

Counsel for the Respondents:
C.S.C., Sri Avanish Mishra, Sri M.N. Singh, Sri
Nipun Singh

A. Service Law - Medical Council of India
Minimum Qualification for Teachers in
Medical Institutions Regulations, 1998challenge
to-appointment-unexplained
delay of 4 years in filing the writ petitionpost of
lecturer-cum-Statistician is a
specialized post in a medical fraternity
and the prescription of qualification is a
specialized task of the experts being
academicians which cannot be made a
subject matter of a judicial review,
particularly when there is nothing on
record to show that the rule making
authority has no legislative competence to
lay down the qualification-limitation does
not strictly apply to proceedings under
Article 32 or 226 of the Constitution of
India, nevertheless, such rights cannot be
enforced after an unreasonable lapse of
time-delay defeats equity-it is a trite law
900 INDIAN LAW REPORTS ALLAHABAD SERIES
that where the writ petitioner approaches
the High Court after a long delay, reliefs
prayed for may be denied to them on the
ground of delay and laches irrespective of
the fact that they are similarly situated to
the other candidates who obtain the
benefit of the judgment.(Para 1 to 30)

The writ petition is dismissed. (E-6)
List of Cases cited:

1. P.V. Joshi & ors. Vs Acctt. Gen., Ahmedabad
& ors. (2003) 2 SCC 632

2. Sanjay Kumar Manjul Vs U.P.S.C. (2006) 8
SCC 42

3. Zahoor Ahmad Rather Vs Sheikh Imtiyaz
Ahmad (2019) 2 SCC 404

4. Mah. Public Service Comm. Vs Sandeep
Shriram Warade (2019) 6 SCC 362

5. PNB Vs Anit Kumar Das (2020) SCC Online SC 897

6. Deepak Singh & ors. Vs St. of U.P. & ors.
(2020) All LJ 596 FB

7. Asheesh Kumar Vs St. of U.P. & ors. (2018) 3
SCC 55

8. P.S. Sadasivaswamy Vs St. of T.N. (1975) 1
SCC 152

9. SS Balu Vs St. of Ker. (2009) 2 SCC 479

10. Vijay Kumar Kaul Vs UOI (2012) 7 SCC 610

11. St. of U.P. Vs Arvind Kumar Srivastava
(2015) 1 SCC 347

12. Chairman/MD U.P. Power Corp. Ltd. & ors.
Vs Ram Gopal, Civil Appeal No.. 852 of 2020

(Delivered by Hon'ble Surya Prakash
Kesarwani, J. &
Hon'ble Vikas Budhwar, J.)

1. Heard Sri H.N. Singh, learned
Senior Advocate assisted by Sri Rishabh
Srivastava,
learned
counsel
for
the
petitioner, learned Standing Counsel for the
respondent no. 1, Sri Nipun Singh, learned
counsel for the respondent no. 2 and Sri
Avanish Mishra, learned counsel for the
respondent no. 3.

2. This writ petition has been filed for
the following relief:-

A. Issue a writ order or direction in
the nature of certiorari calling the
respondents to produce the order of the
State Government dated 13 December,
2017 referred in the order of the Joint
Secretary U.P. Public Service Commission
dated 21 December, 2017 and the Hon'ble
Court may be pleased to quash the order of
the State Government dated 13 December,
2017, the order of the Joint Secretary U.P.
Public Service Commission dated 21
December, 2017 (Annexure-5) and all the
further proceeding of selection on the post
of Lecturer cum Statistician advertised by
U.P.
Public
Service
Commission
by
Advertisement
No.
4/2014-2015 dated
17.03.2015 including interview of the said
selection scheduled on 9th November,
2021.

B. Issue a writ order or direction in
the nature of certiorari quashing the
qualification prescribed by Medial Council
of India now National Medical Commission
(N.M.C.) by Minimum Qualification for
Teachers
in
Medical
Institutions
Regulations, 1998 for the post of Lecturer
cum Statistician in the department of
Community Medicine so far it requires the
experience
of
3
years
as
Tutor/Demonstrator/Resident/Registrar/Epi
demiologist/Health Officer.

C. Issue a writ order or directions in
the nature of mandamus commanding the
respondents to say all selection proceeding
including interview of the post of Lecturer
2 All. Anand Bihari Vs. State of U.P. & Ors.
901
Statistics advertised by U.P. Public Service
Commission
vide
advertisement
No.
4/2014-2015 dated 17.03.2015 during the
pendency of the writ petition before the
Hon'ble Court.

D. Issue any other writ, order or
direction which this Hon'ble Court may
deem fit and proper in the facts and
circumstances of the case.

E. Award the cost of writ petition.

3. The submissions of learned counsel
for the petitioner are as under:-

(i) The qualification prescribed by the
Medical Council of India for the post of
Lecturer (Statistics) is non workable in as
much as there shall be none who may have
three years teaching experience from such
recognized medical college as Resident/
Registrar/ Demonstrator/Tutor.

(ii) The respondents are neither
adhering to the advertisement nor to the
guidelines of the Medical Council of India
in connection with the selection process for
the post of Lecturer in Statistics, in-asmuch as the prescribed qualification
requiring
for
three
years
teaching
experience
as
Resident/Registrar/Demonstrator/Tutor
contractual basis is not workable and
possible hence deserves to be set aside.
Although, the petitioner also possesses the
experience but it was acquired by him
subsequent to the advertisement. The
person who possess post graduate in
Statistics, cannot possess the experience of
Resident/Registrar/Demonstrator/Tutor, for
which the qualification prescribed by the
Medical Council of India is M.B.B.S.
Therefore, a candidate cannot possess both
the
qualifications,
namely,
M.Sc.
(Statistics) and M.B.B.S. The persons who
have been short listed, do not possess the
required qualification, as provided in the
guidelines of the Medical Council of India
and the advertisement, read with the
qualification letter/impugned order dated
13.12.2017. Only the qualification as
prescribed by the Medical Council of India
can be made applicable for selection on the
post of Lecturer (Statistics). Therefore, the
persons
short-listed
and
called
for
interview, cannot be selected in-as-much as
they
do
not
possess
the
required
qualification,
prescribed
by
Medical
Council of India.

4. Sri Nipun Singh, learned counsel
for the respondent no. 2 submits that
interview has finally taken place today i.e.
09.11.2021 in which five candidates were
called, out of which, four candidates have
turned up to appear in the interview. He
submits that selection has been made in
accordance with the qualification and
experience provided in the "Minimum
Qualification for Teachers in Medical
Institutions Regulations, 1998".

5. Sri Avanish Mishra, learned
counsel for the respondent no. 3 submits
that the petitioner participated in the entire
selection process but when he was not
called for interview being not illegible,
only then he filed the present writ petition
challenging the Regulation 1998. Thus, the
relief sought by the petitioner is lead to the
principle of approbate and reprobate and
therefore, the writ petition deserves to be
dismissed.

6. The learned Standing Counsel
supports the impugned order and submits
that the writ petition is hit by the
principle of laches in-as-much as it has
been filed to challenge the impugned
order dated 21.12.2017, after more than
three
years,
without
any
proper
explanation for delay.
902 INDIAN LAW REPORTS ALLAHABAD SERIES

7. We have carefully considered the
submissions of learned counsel for the
parties and perused the record.

8. The Medical Council of India in
exercise of the powers conferred by section
33 of the Indian Medical Council Act 1956
(102 of 1956) with the previous sanction of
the Central Government has enacted the
"Medical Council of India Minimum
Qualification for Teachers in Medical
Institutions
Regulations,
1998"
(As
amended up to 08.06.2017) regulating the
appointment of medical teachers, with
minimum qualification and experience in
various departments of medical colleges
and institutions imparting graduate and post
graduate education.

9. The qualification for the post of
Lecturer in Statistics as well as of Tutor/
Demonstrator/
Resident/
Registrar/
Epidemiologist/
Health
Officer
is
reproduced below:-

Lecturer
in
Statistics
M.Sc
(Statistics)
(i)Requisite
recognised
postgraduate
qualification
in
the subject.
(ii) Three years
teaching
experience in the
subject
in
a
recognised
medical
college
as
Resident/Registra
r/Demonstrator/
Tutor

Tutor/De
monstrato
r/Residen
t/Registra
M.B.B.S.

r/Epidem
olo
gist/Healt
h Officer

10. Thereafter, an advertisement was
published by the respondent no. 2 being
Advertisement
No.
4/2014-15
date:
17/03/2015 inviting applications to fill up
various posts in different departments in
the State of Uttar Pradesh including the
post of Lecturer-Statistic. The relevant
extract of the advertisement is being quoted
hereunder:-

"Serial No. 17. Lecturer-Statistician
cum Lecturer (A) A post graduate degree
in the concerned subject recognized by
University/Institute."

11. The counsel for the respondent no.
2 has argued that there are number of
candidates who had applied for the said
post having the qualification so prescribed
by the Medical Council of India but as on
the date of advertisement the petitioner did
not have three years teaching experience in
the subject in a recognized medical collage
as Tutor/Demonstrator/Resident/Registrar.

12. Prescription of qualification and
other conditions of service is essentially
and
primarily
the
field
of
policy
exclusively with the domain of the
employer
subject
to
the
limitation
envisaged in the Constitution of India and it
is not for this Court while exercising its
jurisdiction under Article 226 of the
Constitution to arrogate to itself that
function. It is neither the function nor the
role of the Court to adjudge or assess the
suitability or desirability of a particular
qualification
that
may
be
stipulated.
Equivalence of degree and educational
qualification is necessarily the function
2 All. Anand Bihari Vs. State of U.P. & Ors.
903
reserved for the experts in the field namely
the academicians.

13. In the case of P.V. Joshi And
Others
Vs.
Accountant
General,
Ahemdabad And Others 2003 (2) SCC
632 the Hon'ble Supreme Court has held as
under:-

"10.We have carefully considered the
submissions made on behalf of both parties.
Questions relating to the constitution,
pattern, nomenclature of posts, cadres,
categories,
their
creation/abolition,
prescription of qualifications and other
conditions of service including avenues
of promotions and criteria to be fulfilled
for such promotions pertain to the field
of Policy and within the exclusive
discretion and jurisdiction of the State,
subject, of course, to the limitations or
restrictions envisaged in the Constitution
of India and it is not for the Statutory
Tribunals, at any rate, to direct the
Government to have a particular method
of recruitment or eligibility criteria or
avenues of promotion or impose itself by
substituting its views for that of the
State. Similarly, it is well open and within
the competency of the State to change the
rules relating to a service and alter or
amend and vary by addition/substruction
the qualifications, eligibility criteria and
other conditions of service including
avenues of promotion, from time to time, as
the administrative exigencies may need or
necessitate.
Likewise,
the
State
by
appropriate rules is entitled to amalgamate
departments or bifurcate departments into
more and constitute different categories of
posts or cadres by undertaking further
classification, bifurcation or amalgamation
as well as reconstitute and restructure the
pattern and cadres/categories of service, as
may be required from time to time by
abolishing
existing
cadres/posts
and
creating new cadres/posts. There is no right
in any employee of the State to claim that
rules governing conditions of his service
should be forever the same as the one when
he entered service for all purposes and
except for ensuring or safeguarding rights
or benefits already earned, acquired or
accrued at a particular point of time, a
Government servant has no right to
challenge the authority of the State to
amend, alter and bring into force new rules
relating to even an existing service."
(Emphasis supplied by us)

14. In the case of Sanjay Kumar
Manjul v. U.P.S.C.(2006) 8 SCC 42 the
Hon'ble Apex Court has held as under:-

"25. The statutory authority is
entitled to frame statutory rules laying
down terms and conditions of service as
also the qualifications essential for
holding a particular post. It is only the
authority concerned who can take ultimate
decision therefor.

26. The jurisdiction of the superior
courts, it is a trite law, would be to
interpret the rule and not to supplant or
supplement the same.

27. It is well-settled that the superior
courts while exercising their jurisdiction
under Articles 226 or 32 of the
Constitution of India ordinarily do not
direct an employer to prescribe a
qualification for holding a particular
post." (Emphasis supplied by us)

15. The Supreme Court in the case of
Zahoor Ahmad Rather Vs. Sheikh
Imtiyaz Ahmad (2019) 2 SCC 404 has
held as under:-

"26. ......
The
prescription
of
qualifications for a post is a matter of
904 INDIAN LAW REPORTS ALLAHABAD SERIES
recruitment policy. The State as the
employer is entitled to prescribe the
qualifications as a condition of eligibility. It
is no part of the role or function of judicial
review to expand upon the ambit of the
prescribed
qualifications.
Similarly,
equivalence of a qualification is not a
matter which can be determined in exercise
of the power of judicial review. Whether a
particular qualification should or should not
be regarded as equivalent is a matter for the
State, as the recruiting authority, to
determine. The decision in Jyoti K.K. [Jyoti
K.K. v. Kerala Public Service Commission,
(2010) 15 SCC 596 : (2013) 3 SCC (L&S)
664] turned on a specific statutory rule
under which the holding of a higher
qualification
could
presuppose
the
acquisition of a lower qualification. The
absence of such a rule in the present case
makes a crucial difference to the ultimate
outcome. In this view of the matter, the
Division Bench [Imtiyaz Ahmad v. Zahoor
Ahmad Rather, LPA (SW) No. 135 of 2017,
decided on 12-10-2017 (J&K)] of the High
Court was justified in reversing the
judgment [Zahoor Ahmad Rather v. State of
J&K, 2017 SCC OnLine J&K 936] of the
learned Single Judge and in coming to the
conclusion that the appellants did not meet
the prescribed qualifications. We find no
error
in
the
decision
[Imtiyaz
Ahmad v. Zahoor Ahmad Rather, LPA (SW)
No. 135 of 2017, decided on 12-10-2017
(J&K)] of the Division Bench." (Emphasis
supplied by us)

16. The Hon'ble Apex Court in the
case of Maharashtra Public Service
Commission
Vs.
Sandeep
Shriram
Warade 2019 (6) SCC 362 has held as
under:-

"9. The essential qualifications for
appointment to a post are for the employer
to decide. The employer may prescribe
additional
or desirable
qualifications,
including any grant of preference. It is the
employer who is best suited to decide the
requirements a candidate must possess
according to the needs of the employer and
the nature of work. The court cannot lay
down the conditions of eligibility, much
less can it delve into the issue with regard
to desirable qualifications being on a par
with the essential eligibility by an
interpretive
re-writing
of
the
advertisement. Questions of equivalence
will also fall outside the domain of judicial
review. If the language of the advertisement
and the rules are clear, the court cannot sit
in judgment over the same. If there is an
ambiguity in the advertisement or it is
contrary to any rules or law the matter has
to go back to the appointing authority after
appropriate
orders,
to
proceed
in
accordance with law. In no case can the
court, in the garb of judicial review, sit in
the chair of the appointing authority to
decide what is best for the employer and
interpret
the
conditions
of
the
advertisement
contrary
to
the
plain
language of the same." (Emphasis supplied
by us)

17. More recently three learned
Judges of the Supreme Court in Punjab
National Bank Vs. Anit Kumar Das 2020
SCC Online SC 897 has observed as
under:-

"21. Thus, as held by this Court in the
aforesaid decisions, it is for the employer
to determine and decide the relevancy and
suitability of the qualifications for any
post and it is not for the Courts to consider
and assess. A greater latitude is permitted
by the Courts for the employer to prescribe
qualifications for any post. There is a
rationale behind it. Qualifications are
2 All. Anand Bihari Vs. State of U.P. & Ors.
905
prescribed keeping in view the need and
interest of an Institution or an Industry or
an establishment as the case may be. The
Courts are not fit instruments to assess
expediency or advisability or utility of
such prescription of qualifications......"
 (Emphasis supplied by us)

18. A full Bench decision of this
Court in the case of Deepak Singh and
Others Vs. State of U.P. and Others
(2020) All LJ 596 (FB) held as under:-

"The
State
Government,
while
prescribing the essential qualifications or
desirable qualifications are best suited to
decide the requirements for selecting a
candidate for nature of work required by
the State Government and the courts are
precluded
from
laying
down
the
conditions of eligibility. If the language in
the Rules is clear judicial review cannot
be used to decide what is best suited for
the employer." (Emphasis supplied by us)

19. The proposition of law as culled
out by the Hon'ble Apex Court as well as
this Court clearly mandates that the Court
under Article 226 of the Constitution of
India cannot trench into the province which
is earmarked for the rule making authority
and discharge the role and the function of
the experts to prescribe a particular
qualification for a post to be filled namely,
the academicians.

20. The submission of learned Senior
Counsel for the petitioner that there is
inconsistency in the prescription of the
qualification provided in the advertisement
in question viz a viz the qualification
prescribed by the Medical Council of India
in the Regulations of 1998, is thoroughly
misconceived. From bare perusal of the
advertisement in question, it is clear that it
stipulates
the
condition
that
the
qualification prescribed in the Regulations
of 1998 is to be followed and a candidate is
to be selected on the basis of said
qualification.

21. The Hon'ble Apex Court in the
case of Asheesh Kumar Vs. State of U.P.
and Others (2018) 3 SCC 55 has
cautioned in para 27, as under:-

"27. Any part of the advertisement
which is contrary to the statutory rule has
to give way to the statutory prescription.
Thus,
looking
to
the
qualification
prescribed in the statutory rules, appellant
fulfills the qualification and after being
selected for the post denying appointment
to him is arbitrary and illegal. It is well
settled that when there is variance in the
advertisement and in the statutory rules, it
is statutory rules which take precedence.
In this context, reference is made in
judgment of this Court in the case of Malik
Mazhar Sultan & Anr. Vs. U.P. Public
Service Commission & Ors., 2006 (9) SCC
507. Paragraph 21 of the judgment lays
down above proposition which is to the
following effect:

"21. The present controversy has
arisen as the advertisement issued by PSC
stated that the candidates who were within
the age on 01.07.2001 and 01.07.2002
shall be treated within age for the
examination. Undoubtedly, the excluded
candidates were of eligible age as per the
advertisements but the recruitment to the
service can only be made in accordance
with the Rules and the error, if any, in the
advertisement cannot override the Rules
and create a right in favour of a candidate
if otherwise ot ligible according to the
Rules. The relaxation of age can be granted
only of permissible under the Rules and not
on the basis of the advertisement. If the
906 INDIAN LAW REPORTS ALLAHABAD SERIES
interpretation of the Rules by PSC when it
issued the advertisement was erroneous, no
right
can
accrue
onbasis
thereof.
Therefore, the answer to the question
would turn upon the interpretation of the
Rules." (Emphasis supplied by us)

22. There is another aspect of the
matter which is to be taken notice of and be
addressed with regard to the undisputed
fact that the advertisement in question as
well as the selection for the post of
Lecturer in Statistics is being challenged
after a period of 4 years. The advertisement
itself was issued way back in the year 2015.
The writ petition has been filed in the last
of the month of October, 2021 whereas the
date of the interview has been fixed on
09.11.2021. Neither there is any pleading
with regard to the reasons for delay in
approaching this Court nor any serious
argument has been raised in this regard by
the learned counsel for the petitioner. Thus,
the writ petition is also hit by laches.

23. The Hon'ble Apex Court in the
case of P.S. Sadasivaswamy Vs. State of
Tamil Nadu (1975) 1 SCC 152 has
considered the question of laches and held
as under:-

"2. .....if the appellant was aggrieved
by it he should have approached the Court
even in the year 1957 after the two
representations made by him had failed to
produce any result. One cannot sleep over
the matter and come to the Court
questioning that relaxation in the year
1971. .......in effect he wants to unscramble
a scrambled egg. It is very difficult for the
Government to consider whether any
relaxation of the rules should have been
made in favour of the appellant in the year
1957. The conditions that were prevalent
in 1957 cannot be reproduced now. .......It
is not that 'here is any period of limitation
for the Courts to exercise their powers
under Article 226 nor is it that there can
never be a case where the Courts cannot
interfere in a matter after the passage of a
certain length of time. But it would be a
sound and wise exercise of discretion for
the Courts to refuse to exercise their
extra-ordinary powers under Article 226
in the case of persons who do not
approach it expeditiously for relief and
who stand by and allow things to happen
and then approach the Court to put
forward stale claims and try to unsettle
settled matters" (Emphasis supplied by
us)

24. The Hon'ble Apex Court in the
case of in SS Balu v. State of Kerala
(2009) 2 SCC 479, observed thus:

"17. It is also well-settled principle of
law that "delay defeats equity". ...It is now
a trite law that where the writ petitioner
approaches the High Court after a long
delay, reliefs prayed for may be denied to
them on the ground of delay and laches
irrespective of the fact that they are
similarly situated to the other candidates
who obtain the benefit of the judgment."
(Emphasis supplied by us)

25. Similarly, in the case of Vijay
Kumar Kaul v. Union of India (2012) 7
SCC 610 the Hon'ble Apex Court has held
as under:-

"27. ...It becomes an obligation to
take into consideration the balance of
justice or injustice in entertaining the
petition or declining it on the ground of
delay and laches. It is a matter of great
significance that at one point of time
equity that existed in favour of one melts
into total insignificance and paves the
2 All. Anand Bihari Vs. State of U.P. & Ors.
907
path of extinction with the passage of
time." (Emphasis supplied by us)

26. The Hon'ble Apex Court in State
of Uttar Pradesh v. Arvind Kumar
Srivastava (2015) 1 SCC 347, has
observed that:-

" 22.1. The normal rule is that when a
particular set of employees is given relief
by the court, all other identically situated
persons need to be treated alike by
extending that benefit. Not doing so would
amount to discrimination and would be
violative of Article 14 of the Constitution of
India. This principle needs to be applied in
service matters more emphatically as the
service jurisprudence evolved by this Court
from time to time postulates that all
similarly situated persons should be treated
similarly. Therefore, the normal rule would
be that merely because other similarly
situated persons did not approach the
Court earlier, they are not to be treated
differently.

22.2. However, this principle is
subject to well-recognised exceptions in the
form of laches and delays as well as
acquiescence. Those persons who did not
challenge the wrongful action in their cases
and acquiesced into the same and woke up
after long delay only because of the reason
that
their
counterparts
who
had
approached the court earlier in time
succeeded in their efforts, then such
employees cannot claim that the benefit of
the judgment rendered in the case of
similarly situated persons be extended to
them. They would be treated as fencesitters and laches and delays, and/or the
acquiescence, would be a valid ground to
dismiss their claim."

27. Recently, the Hon'ble Apex Court
in the Civil Appeal No. 852 of 2020
decided on 31.01.2020 in the case of
Chairman/Managing Director U.P. Power
Corpporation Ltd. & others Vs. Ram
Gopal has held as under:-

"16. Whilst it is true that limitation
does not strictly apply to proceedings under
Articles 32 or 226 of the Constitution of
India, nevertheless, such rights cannot be
enforced after an unreasonable lapse of
time. Consideration of unexplained delays
and inordinate laches would always be
relevant in writ actions, and writ courts
naturally
ought
to
be
reluctant
in
exercising their discretionary jurisdiction
to protect those who have slept over wrongs
and allowed illegalities to fester. Fencesitters cannot be allowed to barge into
courts and cry for their rights at their
convenience, and vigilant citizens ought not
to be treated alike with mere opportunists."
7 (Emphasis supplied by us)

28. Following the principles of law
laid down in the above noted judgments we
find that there is unexplained delay of
approximately 4 years in filing the present
writ petition. Thus, the present writ petition
is also barred by laches.

29. In totality of the matter this Court
finds that the post of Lecturer-cumStatistician is a specialized post in a
medical fraternity and the prescription of
qualification is a specialized task of the
experts being academicians which cannot
be made a subject matter of a judicial
review, particularly when there is nothing
on record to show that the rule making
authority has no legislative competence to
lay down the qualification.

30. Resultantly, the present writ
petition is devoid of merit and is hereby
dismissed.
908 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022)02ILR A908
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 10884 of 2021

Aditya Sudhakar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Bipin Lal Sri Vinayak Varma, Sri S.K. Varma
(Senior Adv.)

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Compassionate
Appointment - U.P. Dying in Harness
Rules, 1974-Rule 5-Father of petitioner
died due to Covid-19- mother of the
petitioner submitted an application as
per State Govt. Order dated 20.05.2021
for compassionate appointment-if the
case of the petitioner falls within Rule 5
of notification no. 6/XII/73/Ka-2-T.C.-
IV dated 22.01.2014 only then he may
be
provided
compassionate
appointment-the
mother
of
the
petitioner was employed in Kendriya
Vidyalaya
which
is
governed
and
administered by Central Government
and Rule 5 of U.P. Dying in Harness
Rules, 1974 excludes the dependent of
an
employee
for
compassionate
appointment whose husband and wife,
as the case may be, is employed under
the
Central
Government
or
State
Government-Thus, Rule 5 of U.P. Dying
in Harness Rules, 1974 clearly bars the
appointment
of
the
petitioner
on
compassionate ground.(Para 1 to 13)

The writ petition is dismissed. (E-6)

List of Cases cited:
1. Smt. Deepa Vashishtha Vs St. of U.P. &
anr.(1996) 1 UPLBEC 54

2. Home Secy., U.T. of Chandigarh & anr. Vs
Darshjit Singh Grewal & ors.. JT (1993) 4 SC
387
(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri S.K. Varma, learned
Senior Advocate, assisted by Sri Vinayak
Varma, learned counsel for the petitioner
and Sri R.S. Umrao, learned Standing
Counsel for the respondents.

2. The petitioner by means of present
writ petition has assailed the order dated
22.07.2021 passed by the Director of the
Social Welfare Department, U.P. rejecting
the
claim
of
the
petitioner
for
compassionate appointment.

3. The case of the petitioner is that his
father Harish Chandra Arya was Deputy
Director in Social Welfare Department and
was posted at Bareilly Division, Bareilly.
His father was declared a corona positive
patient on 08.05.2021. He was admitted in
Khushlok Hospital, Bareilly and died on
22.05.2021 due to Covid-19.

4. The Chief Secretary of State of
U.P. issued an order/letter on 20.05.2021
addressed to the District Magistrates
directing them to ensure that family
members of the employees of health
services,
Police,
Urban
and
Rural
Administration and other Government
Officers who are discharging their duties
with dedication to fight with Covid-19
pandemic and had died while discharging
their duties be immediately granted exgratia amount and one dependent of such
employees be provided compassionate
appointment as per rules. Accordingly,
mother of the petitioner submitted an