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

- **Citation:** (2022) 3 ILRA 605
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-12
- **Case number:** Writ A No. 17530 of 2021
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kumar-ors-v-state-of-u-p-ors-48219
- **Pages:** 10

## Headnote

A. Service Law - UP Industrial Training
Institutes (Instructors) Service Rules,
2014 - Selection - Advertisement issued
and selection process started - In respect
of
two
posts
selection
was
already
concluded and recommendations were
made for appointment - Meantime, UP
Direct Recruitment to Junior Level Posts
(Discontinuation
of
Interview)
Rules,
2017 came to be framed which provide
that interview prescribed in the selection
procedure in the relevant service rules
would
be
discontinued
-
Validity
606 INDIAN LAW REPORTS ALLAHABAD SERIES
challenged - Besides the saving clause
4(d) of the Recruitment Rules, 2017, the
Selecting Body has to abide by the
procedure
prescribed
for
under
the
advertisement and the relevant rules then
in existence - Selecting body does not
have its right to alter the procedure for
selection than what is prescribed under
the relevant Service Rules, 2014 and
Recruitment Rules, 2017. (Para 25 and
32)
Writ petition allowed. (E-1)
List of Cases cited :-

## Text

3 All. Arvind Kumar & Ors. Vs. State of U.P. & Ors.
605
understands and correctly appreciates the
need
of
its
own
people
and
that
discrimination, if any, is based on adequate
grounds and considerations. The courts will
be justified in giving a liberal interpretation
in order to avoid constitutional invalidity.
Where a Statute is silent or is inarticulate,
the Court would attempt to transmutate the
inarticulate and adopt a construction which
would lean towards constitutionality albeit
without departing from the material of
which the law is woven. These principles
give rise to rule of "reading down" the
provisions if it becomes necessary to
uphold the validity of the law. While
examining
the
challenge
to
the
constitutionality of an enactment, the court
is to start with the presumption of
constitutionality and try to sustain its
validity to the extent possible. The court
cannot approach the enactment with a view
to pick holes or to search for defects of
drafting,
much
less
inexactitude
of
language employed. An act made by the
legislature represents the will of the people
and that cannot be lightly interfered with. It
is presumed that the legislature expresses
wisdom of the community, does not intend
to exceed its jurisdiction and correctly
appreciates the need of its own people.

18. When these settled principles are
applied on the facts of the present case and
the submissions made by the parties, we
find that the petitioners have completely
failed
to
rebut
the
presumption
of
constitutional validity of the impugned Act,
1980.

19. Once petitioners are not disputing
the legislative competence of the State
Legislature to enact the Act, 1980 and the
field of legislation to regulate method of
appointment of teacher in private aided
institution, the question of breach of any
fundamental
right
of
the
petitioner's
institution including Article 19 (1) (g) of
the Constitution of India, do not arise at all,
particularly in view of law laid down by
Hon'ble Suprme Court in the case of
T.M.A. Pai Foundation (supra).

20. For all the reasons aforequoted,
we do not find any unconstitutionality in
the impugned Act, 1980. The writ petition
is wholly devoid of merit and is frivolous,
which
deserves
to
be
dismissed.
Consequently,
the
writ
petition
is
dismissed.
----------
(2022)03ILR A605
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 17530 of 2021

Arvind Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ankur Sharma, Nidhi Agarwal

Counsel for the Respondents:
C.S.C., A.S.G.I., Sri Siddharth Singhal

A. Service Law - UP Industrial Training
Institutes (Instructors) Service Rules,
2014 - Selection - Advertisement issued
and selection process started - In respect
of
two
posts
selection
was
already
concluded and recommendations were
made for appointment - Meantime, UP
Direct Recruitment to Junior Level Posts
(Discontinuation
of
Interview)
Rules,
2017 came to be framed which provide
that interview prescribed in the selection
procedure in the relevant service rules
would
be
discontinued
-
Validity
606 INDIAN LAW REPORTS ALLAHABAD SERIES
challenged - Besides the saving clause
4(d) of the Recruitment Rules, 2017, the
Selecting Body has to abide by the
procedure
prescribed
for
under
the
advertisement and the relevant rules then
in existence - Selecting body does not
have its right to alter the procedure for
selection than what is prescribed under
the relevant Service Rules, 2014 and
Recruitment Rules, 2017. (Para 25 and
32)
Writ petition allowed. (E-1)
List of Cases cited :-
1. N.T. Devin Kutti & ors. Vs Karnataka Public
Service Commission & ors.; (1990) 3 SCC 157
2. Dheeraj Mor Vs Hon'ble High Court of Delhi;
(2020) 7 SCC 401
3. Prashant Kumar Katiyar Vs St. of U.P. & ors.;
2013 (1) ESC 221
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Ankur Sharma, learned
counsel for the petitioners, Sri Siddharth
Singhal, learned counsel for the respondent
No.- 4 and learned Standing Counsel for
the respondent Nos. 1 & 2 through video
conferencing. Nobody is present on behalf
of the respondent No.3.

2. The petitioners who are four in
number, are before this Court seeking a
writ of certiorari to quash the notification
issued by the respondent No.4, namely,
U.P.
Subordinate
Service
Selection
Commission,
impleaded
through
its
Secretary, dated 11th November, 2021
whereby
the
applicants
under
the
Advertisement
No.-
20(07)/2015
and
16(04)/2016 have been directed to apply
for appearing in the written examination for
selection and appointment to the post of
Instructors
that
are
559
and
293
respectively under the advertisements, to be
filled in.

3. The petitioners who have applied
against two advertisements respectively,
have questioned the notification on the
ground that at the time of advertisements in
the year 2015 and 2016 prescribing last
date for submission of applications as 24th
November, 2015 and 21st December, 2016
respectively, the rules in existence were
The Uttar Pradesh Industrial Training
Institutes (Instructors) Service Rules, 2014
(hereinafter referred as 'Service Rules,
2014') and according to these rules,
selection had to be made on the basis of
credentials,
academic
records
of
the
candidates and walk-in-interview.

4. In this regard, he has placed
reliance upon sub-rule (3) and (4) of Rule
16 of the Service Rules, 2014. He submits
that the selection process had already
begun way back in the year 2015 and
selection and appointment against two
vacancies of Instrument Mechanic and
Embroidery in needle work had already
been made and the selection process in
respect of the remaining 850 (557+293)
had remained to be completed. However, in
the
meantime,
Uttar
Pradesh
Direct
Recruitment
to
Junior
Level
Posts
(Discontinuation of Interview) Rules, 2017
(hereinafter referred to as 'Recruitment
Rules, 2017') came to be framed by the
Governor in exercise of power under the
proviso to Article 309 of the Constitution
of India and which provided that interview
prescribed in the selection procedure in the
relevant service rules of the State would be
discontinued and wherever the recruitment
process prescribed for interview only, such
selection would now be made on the basis
of the written examination only.

5. Learned counsel for the petitioner
has submitted that these rules saved the
selection
process
in
respect
of
the
3 All. Arvind Kumar & Ors. Vs. State of U.P. & Ors.
607
advertisement already issued prior to
coming into force of these rules vide
Clause (d) of Rule 4 of Recruitment Rules,
2017. However, the respondent No.- 4
created confusion and that too for no
justifiable reasons by seeking guidance
from
the
Director,
Training
and
Employment Government of U.P. Lucknow
that approval be sought from the State
Government
for
holding
written
examination in respect of the vacancies
already advertised and in respect of which
selection was yet to be accomplished.

6. This letter was written on 5th
June, 2020 by the Secretary of respondent
No.4, however, the Director in his
wisdom correctly appreciated the matter
and made recommendation to the Chief
Secretary (Vocational Education and
Craft
Development
Department),
Government of U.P, Lucknow that any
change in the method of selection qua
posts already advertised out of which
selection and recommendation in respect
of two such advertised posts have already
been made, would complicate things and
would lead to disputes. The Secretary on
30th July, 2021 wrote to the Selection
Board that recruitment had to be made
strictly in accordance with Recruitment
Rules, 2017.

7. Learned counsel for the petitioner
has further submitted that there was
nothing in the order of the Secretary to
direct for written examination in respect of
the vacancies already advertised and for
which the selection process was still on and
yet the respondent No.- 4 proceeded to
issue notification for holding written
examination in respect of the advertisement
of the year 2015 and 2016 and, therefore,
the notification dated 28th November, 2016
is absolutely unsustainable in law.

8. He submits that once the
Government
has
decided
that
the
recruitment has to be made in accordance
with
Recruitment
Rules,
2017
and
Recruitment Rules, 2017 saved already
advertised vacancies in respect of which
selection process was underway, the
respondent No.-4 transgressed its authority
in directing for written examination for the
selection process. He submits that this
notification is de hors the Recruitment
Rules, 2017. Additionally, he submits that
every
rule
unless
it
postulates
its
retrospective application by express means,
no Government order or notification by the
selecting body, can make the rules effective
retrospectively.

9. `Per contra, Sri Siddharth Singhal,
learned
counsel
appearing
for
the
respondent No.4 tried to defend the
notification on
the ground
that
the
Government intended the ongoing selection
process to abide by the Recruitment Rules,
2017
which
prescribed
for
written
examination and that is why in its letter
dated 3rd November, 2021 the Special
Secretary, Government of U.P. prescribed
for 100 marks for the written examination.
He submits that the Commission was left
with no other option but to issue
notification impugned here in this petition
inviting applications from the candidates
for written examination. However, he could
not dispute the factum of selection and
appointment
against
two
posts
of
Instrument Mechanic and Embroidery in
needle work respectively which were part
of the same advertisement. He could also
not dispute that the selection process had
started
with
the
invitation
of
the
applications and for which last date was
prescribed as 20th November, 2015 and
21st December, 2016 respectively under
the two advertisements.
608 INDIAN LAW REPORTS ALLAHABAD SERIES

10. On a pointed query being made
refering to the relevant clause (d) of Rule 4
of the Recruitment Rules, 2017, he could
not dispute the same and merely argued
that
it
will
all
depend
upon
the
interpretation
of
the
said
provision.
However, he would admit at the same time
that Recruitment Rules, 2017 have not been
made retrospective in its effect.

11.

Learned
Standing
Counsel
submitted that the letter issued by the
Special Secretary dated 3rd November,
2021 cannot be construed in any manner to
be directing to the respondent No.- 4 to
hold the on going selection process
pursuant to the advertisement of the year
2015 and 2016 by applying the method of
the written examination. He would submit
that clause (b) of Rule 4 provides similar
number
of
marks
for
the
written
examination as prescribed for interview
under the Recruitment Rules, 2017 in the
event of selection being done doing away
with the procedure of interview and
replacing the same by written examination.
However, he could not demonstrate that
Recruitment Rules, 2017 in any manner can
be said to have any retrospective operation
inasmuch as he could not dispute the
provision as contained in clause (d) of Rule
4 to be a saving clause in respect of the
advertisements where the selection process
in pursuance thereof if already underway at
the time when the Recruitment Rules, 2017
came into force.

12. Having heard learned counsel for the
respective parties and having gone through the
records of the case, I find that sustainability of
the notification impugned, depends only upon
the interpretation of Recruitment Rules, 2017.
It is admitted to the parties that the posts in
question were advertised in the year 2015 and
2016 respectively inviting applications fixing
last date as 24th November, 2015 and 21st
December, 2016 and thus the process of
selection started. It is also admitted to the
parties that out of various posts advertised, in
respect of two posts of Instrument Mechanic
and Embroidery in needle work selection had
already
been
done
in
the
past
and
recommendations had been made to the
department concerned for appointment in the
past and the final selection process in respect
of the remaining vacancies were underway.

13. It is in this above background of the
facts of the case, I proceed to examine the
relevant recruitment rules so as to form a final
view qua sustainability of the notification
issued by the respondent No.4, impugned in
this petition.

14. Prior to the coming into force of the
Recruitment Rules, 2017, there was a
procedure only for walk-in-interview under the
Service Rules, 2014. Part V of the Service
Rules, 2014 prescribes for procedure for
recruitment and the relevant rules are sub-rule
(3), (4) and (5) of Rule 16 which are
reproduced hereunder:-

"(3) In making selection for direct
recruitment, the merit list of the eligible
candidates shall be prepared in the
following manner:-

(a) For academic qualifications
prescribed for the post, the marks shall be
awarded to each candidate in the following
manner:

(i) Fifty percent of the percentage
of marks secured in the High School
Examination shall be given to each
candidate.

(ii)
Twenty
percent
of
the
percentage of marks secured in the
3 All. Arvind Kumar & Ors. Vs. State of U.P. & Ors.
609
National Trade Certificate Test/ National
Apprenticeship Certificate Test shall be
given to each candidate,

or

Twenty percent of the percentage
of marks secured in Diploma or Degree
Examination shall be given to each
candidate.

(iii)
Fifteen
percent
of
the
percentage of the marks secured in CITS/
POT test shall be given to each candidate.

(b) (i) After the results of the
evaluations under clause (a) have been
received
and
tabulated,
the
Section
Committee shall hold an interview. If the
applications
received
are
large
in
numbers, then in such situation the
number of candidates to be called for
interview shall be four times the number
of vacancies. For this purpose the merit
list of candidates shall be prepared
separately on the basis of aggregate of
marks obtained by them under clause (a).

(ii) The interview shall carry one
hundred marks. Fifteen percent of the
marks obtained at the interview shall be
given to each candidate."

(4). The marks obtained by each
candidate under clause (a) of sub-rule (3)
shall be added to the marks obtained by
him under clause (b) of sub-rule (3). The
final select list shall be prepared on the
basis of aggregate of marks so arrived. If
two or ore candidates obtain equal marks
in the aggregate, the candidate obtaining
higher marks under clause (a) of sub-rule
(3) shall be placed higher in the select list.
In case two or more candidates obtain
equal marks under clause (a) of sub-rule
(3) also, the candidate senior in age shall
be placed higher in the select list.

(5) The select list referred to in
sub-rule (4) shall be forwarded to the
appointing authority." (emphasis added)

15. Rule 17 of Service Rules, 2014
provides
for
appointment,
probation,
confirmation and seniority under part VI of
the Service Rules, 2014. Rule 17(1) that
deals with appointment is important for the
purpose of this case and is reproduced
hereunder:-

"17.(1) Subject to the provisions
of sub-rule (3) of this rule, the appointing
authority shall make appointment by taking
the names of candidates in the order in
which they stand in the list prepared under
rule 16."

16. Upon bare reading of these rules
quoted above, it is clear that a select list has
to be prepared under sub-rule 4 in order of
merit of the candidates on the basis of
marks secured by them under various heads
of sub-rule 3 and marks obtained in the
interview, shall be forwarded to the
appointing
authority.
The
appointing
authority shall act upon the select list in the
order of merit prepared and forwarded
under Rule 16. Thus, there was no
procedure prescribed under the Service
Rules, 2014 for holding any written
examination for making recruitment to the
post of instructors.

17. Exercising power under the
proviso to Article 309 of the Constitution
of India, the Governor has been pleased to
frame another rule, namely, Uttar Pradesh
Direct Recruitment to Junior Level Posts
(Discontinuation of Interview) Rules, 2017
giving it an overriding effect upon all the
610 INDIAN LAW REPORTS ALLAHABAD SERIES
existing rules of recruitment to the posts in
the departments of State Government by
virtue of Rule 2 of the Recruitment Rules,
2017. Rule 4 of Recruitment Rules, 2017
deals with discontinuation of the procedure
of interview in making direct recruitment to
the junior level posts in the Government.
Admittedly, the posts in question do fall in
the category of junior level posts. For
proper
appreciation
Rule
4
of
the
Recruitment Rules, 2017 is reproduced
hereunder in its entirety:-

"4. Discontinuation of Interview
in making direct recruitment to junior
level posts - The provisions of interview
prescribed in the selection procedure in the
relevant service rules in making direct
recruitment to junior level posts shall stand
discontinued,
and
upon
such
discontinuation-

(a) Where the procedure for
direct recruitment to a junior level posts is
prescribed on the basis of interview only,
such selection shall be made on the basis of
written examination only.

(b) Where separate marks are
prescribed for written test and interview in
the selection procedure, the marks for
interview shall be included in the marks
prescribed for written examination. In
case there is no provision for written
examination, the marks prescribed for
interview shall be presumed as the marks
prescribed for written examination.

(c) For selection to the posts
where skill test or technical examination is
required, the marks prescribed for such
test/ examination shall be only qualifying in
nature and such marks shall not be counted
in the over all selection procedure.

(d) If prior to commencement of
these rules, the advertisement for selection
to any junior level post has been made and
the selection process is on going, such
selection shall remain unaffected and
shall be made in accordance with the
advertisement issued in this behalf.

(e) If in special circumstances,
the Administrative Department of the
Government
finds
a
justification
to
prescribe the interview for selection to a
particular
junior
level
post,
the
Administrative Department will submit the
appropriate proposal to the Personnel
Department of the Government, which will
take a well considered decision on such
proposal." (emphasis added)

18. From a bare reading of the
aforesaid rules, it becomes quite explicit
that in the event advertisement has already
been made prior to the commencement of
these Rules for selection to any junior level
posts and the selection process is going on,
such selection shall remain unaffected and
shall be governed by the advertisement
issued in that behalf.

19. Thus, clause (d) of Rule 4 of
Recruitment
Rules,
2017
saves
the
advertisement
and
selection
process
pursuant thereto, if already issued and
makes the rule 4 of Recruitment Rules,
2017 prospective in nature.

20. The golden rule of interpretation
is that words have to be interpreted in the
manner they have been framed in the
phrase and in my considered view there
cannot be any other view in interpreting
clause (d) of Rule 4 so as to hold it
applicable to even ongoing selection
process.
3 All. Arvind Kumar & Ors. Vs. State of U.P. & Ors.
611

21. Now, the question would be as to
when the selection process begins with the
issuance of advertisement, or with the
issuance of call letter for interview.

22. The legal position as it stands
today, the selection process starts with the
invitation
of
applications
under
an
advertisement in which the last date is
prescribed for. It is not the case of the
respondents that the dates prescribed for as
a last date for submission of application
forms under the advertisements, were
further extended and the case is instead that
in respect of two posts selection was
already concluded and recommendations
were made for appointment. That being the
situation, the respondents cannot take the
plea that the process of selection had not
already begun.

23. It would be worth referring here
certain authorities of Supreme Court of
India in the above regard. In the case of
A.P.
Public
Service
Commission,
Hyderabad and others v. B. Sarat Chandra
and others reported in (1990) 2 SCC 669,
the Andhra Pradesh Services Tribunal
though held the process of Selection to
have started with the advertisement as
applications were invited but there being
various steps in the selection process, the
essence of process would lie in the
preparation of select list and thus held that
the eligibility would be taken to be on the
date of preparation of select list. The
Supreme Court reversed the judgment of
the Tribunal by holding that selection
cannot be understood in a sense of final act
of preparation of selecting candidates with
preparation of the list for appointment. The
Court though was dealing with the date of
eligibility in that case but held that
selection consisted of various steps like
inviting
applications,
scrutiny
of
applications,
rejection
of
defective
applications,
conducting
examinations,
calling for interview and preparation of list
of selected candidates for appointment and
it was observed that Rule 3 of procedure of
the Public Service Commission, Andhra
Pradesh was also indicative of that. In the
case in hand I also find Rule 16 of the
Service Rules, 2014, laying down such
procedure and thus it is right to hold that
selection process in this case also began
with the invitation of applications by
issuing advertisements in the year 2015 and
2016 in respect of posts advertised
thereunder. In the case of N.T. Devin Kutti
and others v. Karnataka Public Service
Commission and others; (1990) 3 SCC
157, the Supreme Court has clearly held
that selection process starts with the
advertisement
and
the
selection
of
candidates is to be made in accordance with
the existing Rules and Government order
applicable on that date. The rights of the
candidates crystallize on the date of
publication of the advertisement. The
process
of
selection
ends
with
the
appointment. Again in a very recent
decision in the case Dheeraj Mor v.
Hon'ble High Court of Delhi reported in
(2020) 7 SCC 401, it was clearly held that
selection
process
begins
with
advertisement, inviting applications form
the eligible candidates.

24. Yet another argument advanced
by learned counsel for the petitioner is that
once the rules of game are finally set and
game is on, rules of the game cannot be
changed.

25. I find merit in the above
submission. Besides the saving clause 4(d)
of the Recruitment Rules, 2017, the
Selecting Body has to abide by the
procedure
prescribed
for
under
the
612 INDIAN LAW REPORTS ALLAHABAD SERIES
advertisement and the relevant rules then in
existence.

26. In my above view, I find support
in the Full Bench judgment of this Court in
the case of Prashant Kumar Katiyar v.
State of U.P. and others reported in 2013
(1) ESC 221. In that case vacancies had
been intimated to the Selection Board for
the purposes of notification under the
relevant Act and the Rules and the Board
had
issued
advertisement
inviting
applications.
By
calling/
approving
applications of transfer of a teacher at the
instance of management, it sought to alter
vacancy position of institutions. The issue
was whether the selection Board could
have altered the vacancies to upset the
procedure already set forth. Vide paragraph
39 of the judgment the Full Bench has held
thus:-

"39. To our mind, the function of
the management and the District Inspector
of Schools, therefore, has to follow this
procedure and it is trite law that if a statute
requires a thing to be done in a particular
manner then it should be done in that
manner alone and not otherwise. The
procedure under the Act and Rules is
mandatory and it has to be done in that
manner alone. Reference be had to Para 20
and 23 of the division bench judgment in
the case of Km. Poonam v. State of U.P.
2008 (3) AWC Pg. 2852 and to Para 24 of
the decision in the case of U.P. Secondary
Education Service Selection Board Vs.
State of U.P. 2011 (3) ADJ Pg. 340. The
rules have been framed consciously by
making a provision of limited alteration in
the determination by adding to the
vacancies
on
account of
any
fresh
occurrence during the year of recruitment
itself. Thus impliedly no power has been
conferred
for
altering
the
vacancies
already determined and intimated to the
Board for the purpose of notification under
the Act and Rules. The requisition to fill up
the vacancies after having sent to the
Board therefore becomes unalterable as the
Board proceeds with the advertisement
under Rule 12 by publishing the vacancy in
accordance with reservation rules and in
accordance with the subject-wise and
group-wise
vacancies
against
which
appointments are to be made inviting
applications from candidates giving their
preference of the institution which choice
has to be indicated by the candidate. At this
stage, to upset the procedure after
advertisement
by
giving
any
further
leverage would be to disturb the entire
process of selection and if such a
concession is given, the management can
indulge
into
motivated
manipulations
which are not uncommon and give rise to
uncalled for controversies ending up in
litigation."

27. Although in view of the above the
impugned notification is liable to be
quashed but still further I would examine
the right of a Selecting Body, respondent
No.-4 in this case, as something has been
argued in defence of the notification issued
in its behalf changing the procedure of
selection.

28. The argument of the learned
counsel for the respondent No.- 4 is that the
letter dated 3rd November, 2021 issued by
Secretary would be taken to be a direction
to the respondent No.- 4 to hold written
examination and so the consequential
notification and unless and until the said
order is questioned, the consequential order
cannot be questioned. I find no merit in this
submission. Firstly, I would observe that
when the recruitment Rules, 2017 clearly
saved the on going selection process
3 All. Arvind Kumar & Ors. Vs. State of U.P. & Ors.
613
pursuant to an advertisement already made,
it was not open for the respondent No.- 4 to
have passed resolution requesting the
Director, Training and Employment U.P.,
Lucknow for his opinion. The respondent
No. 4 is merely a selecting body and not
the appointing authority. The respondent
No.- 4 being selecting body has to hold
selection as the recruitment rules prescribe
for. It is an admitted fact to the respondent
No.- 4 that when advertisements were made
in the year 2015 and 2016 respectively the
Service Rules, 2014 provided only for
walk-in-interview
as
procedure
for
selection and preparation of select list on
the basis of marks obtained under different
heads of credentials and academic records
of the candidates and finally in the
interview. The recruitment Rules, 2017 that
came to be framed and enforced to do away
with the requirement of interview and
replace the same by written examination/
test, did save the selection process already
underway and, therefore, it was a complete
misadventure on the part of the respondent
No.- 4 to have written a letter to the
Director, Training and Employment, U.P.
Lucknow on 5th June, 2020. The Director,
Training and Employment , U.P. Lucknow
rightly wrote a letter to the Chief Secretary
that any deviation in the procedure of
selection pursuant to which selection in
respect of two vacancies had already been
done and recommendations had been made,
would lead to disputes and so the Director
also wrote to the respondent No.- 4 on 30th
July,
2020
to
proceed
as
per
the
Recruitment Rules, 2017 as admittedly
these rules saved the ongoing selection
process.

29. It appears that some further letter
was written by the respondent No.- 4 to the
Government
on
22nd
October,
2021,
however, copy thereof has not been placed on
record but in reply to that letter, an order has
come to be passed by the Special Secretary,
Government of U.P., Lucknow on 3rd
November, 2021 directing the respondent
No.- 4 to hold the selection by prescribing
curriculum for written examination and
allocation of marks in respect thereof. Why
the respondent No.- 4 has not brought its
letter dated 22nd October, 2021 on record is
best known to it, but the argument advanced
by learned counsel for the petitioner is correct
that the letter dated 3rd November, 2021 does
not refer to any advertisement number or date
in respect of which curriculum for written
examination has been prescribed for and,
therefore, this cannot be read to mean that
Government
decided
to
hold
written
examination
replacing
the
interview
procedure in respect of the selection pursuant
to the advertisements in question made prior
to coming into force of Recruitment Rules,
2017. Thus, exercising power as a selecting
body, the respondent No.- 4 had no authority
to change the rule of procedure in the mid of
selection process.

30. Thus for what has been discussed
and observed above in this judgment, I am
not able to sustain the notification dated 11th
November,
2021
whereby
written
examination has been prescribed to replace
the procedure of interview in respect of the
selection and appointment to the vacancies
advertised in the year 2015 and 2016 vide
advertisement Nos.- 20(4)/ 2015 and 16(4)/
2016 respectively.

31 . I further find that the notification
is based more upon the resolution of the
Selection Commission dated 28th January,
2020 than the letter dated 3rd November,
2021 issued by the Chief Secretary.

32. In my considered view the
selecting body does not have its right to
614 INDIAN LAW REPORTS ALLAHABAD SERIES
alter the procedure for selection than what
is prescribed under the relevant Service
Rules, 2014 and Recruitment Rules, 2017.
Since I have already interpreted both the
rules, I am not able to sustain resolution
passed by U.P. Subordinate Selection
Commission dated 28th January, 2020 and
same is hereby quashed as quashing of the
notification dated 11th November, 2021
would result in revival of another illegal
resolution of the Commission dated 28th
January, 2020.

33. Insofar as 3rd November, 2021
order of the State Government is concerned
since it only refers to some letter of
Selection Commission which has not been
brought on record and so it is hereby
provided that in the event it relates to the
selection pursuant to the advertisements in
question, the same shall also stand quashed
to that extent.

34. The writ petition thus succeeds
and stands allowed as indicated above.
However, further directions is issued to the
Selection Commission to conclude the
selection process strictly in accordance
with law and as per the Service Rules, 2014
as expeditiously as possible.
----------
(2022)03ILR A614
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.03.2022

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ A No. 24963 of 2021
with
Writ A No. 5390 of 2021

Ram Vilas ...Petitioner
Versus
State of U.P. ...Respondent
Counsel for the Petitioner:
Sri Dinesh Kumar Verma, Sri Karunakar
Srivastava

Counsel for the Respondent:
C.S.C., Sri Nirankar Singh

A. Service Law - Payment of benefits -
Service conditions of the employees of
the Nigam would be same as are
applicable to the employees of the State
Government
under
the
Rules,
Regulations and Orders applicable to the
State Government servants so long as
the
same
are
not
altered
by
the
respondents in accordance with the
provisions of the Act. (Para 5)

In the present case, only administrative
orders are issued by the respondents and
there is no alteration made with regard to the
service conditions of the petitioners viz-a-viz.
the employees of the State Government.
Merely by office orders change in the
service conditions cannot be made. It is
not disputed that benefits of the 6th Pay
Commission are covered under the term
'service conditions' and, therefore, the said
benefits are to be made applicable to the
petitioners also from the date the same are
made applicable to the State Government
employees. (Para 6)

Writ petitions allowed. (E-4)

Precedent followed:

1. Harwindra Kumar Vs Chief Engineer, Karmik
& ors., (2005) 13 SCC 300 (Para 4)

Present petition challenges orders dated
10.08.2021 and 19.01.2021.

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. Heard Sri DineshKumar Verma,
learned
counsel
for
petitioners,
Sri
Nirankar
Singh,
learned
counsel
for
respondent No.2 and 3 and Standing
Counsel for the State respondents.