# Ashish Kumar & Ors v. State of U.P. & Ors. 466 INDIAN LAW REPORTS ALLAHABAD SERIES Issue for Consideration

- **Citation:** (2026) 3 ILRA 465
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-03-17
- **Case number:** Writ A No. 1474 of 2026
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-kumar-ors-v-state-of-u-p-ors-466-indian-law-reports-allahabad-series-54710
- **Pages:** 8

## Text

3 All. Ashish Kumar & Ors. Vs. State of U.P. & Ors.
465
proceedings under Article 226 of the Constitution of India, we find that as an ad hoc
employee having retired during the pendency of the aforesaid appeal, the petitioners could have
either amended the relief or by filing a fresh writ petition could have agitated the aforesaid claim.

24. It is trite that even if some defect is found in the decision making process, the Court
must only exercise its discretionary power under Article 226 of the Constitution of India, only in
furtherance of a public interest and not merely on making out the legal point. The Court should
always keep the public interest in mind in order to decide whether its intervention is called for or
not, as has been held in the case of AIR India Ltd. Vs. Cochin International Air Port Ltd. (2000
(2) SCC 617) and as noted with affirmation in the case of M/S Master Marine Services Pvt. Ltd
vs Metcalfe & Hodgkinson Pvt. Ltd. & Anr (2005 (6) SCC 138).

25. Today at a belated stage, this Court finds that on one side the petitioners have retired
and there is no prayer for seeking a direction to regularize the petitioners under the statutory right
which has been inserted by the U.P. Act No.7 of 2016 i.e. Section 33-G of the Act; and on the other
side the non-consideration being given by the learned Single Judge, on the issue which was
pending at the said point of time in the case of Jahaj Pal (Supra) and which ultimately crystallized
in favour of the petitioners.

26. In view of the aforesaid facts, though we find that the judgment of the learned Single
Judge cannot be sustained in the eyes of law. However, we refrain ourselves from issuing any
directions for the regularization of the petitioner under Section 33-G of the Act, 1982; but we keep
it open for the petitioners to move an appropriate applications before the authorities, for
consideration of their claim under Section 33-G of the Act 1982.

27. In view of above, we set aside the judgment of the learned Single Judge dated
09.12.2013 and the present intra-court appeal is disposed of with request to the respondent
authorities to consider the petitioners claim under Section 33-G of the Act, 1982 in accordance
with law and the observations made herein above.

28. The present appeal stands allowed.
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(2026) 3 ILRA 465
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.03.2026

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ A No. 1474 of 2026

Ashish Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
466 INDIAN LAW REPORTS ALLAHABAD SERIES
Issue for Consideration
(1) Validity of advertisement issued by the Committee of Management for Group 'C' posts in the nongovernment aided institutions.
(2) Applicability of the provision of UP Subordinate Service Selection Commission Act, 2014 to the
appointment in the non-government aided institutions.
(3) Permissibility to challenge the selection process by the candidates, who have participated in the process
and declared unsuccessful.

Headnotes
(A) Service law - Advertisement - Selection process - Group 'C' posts -Committee of
Management issued the advertisement - Competence of Committee challenged - Plea that the
Commission is only competent to issue advertisement was made - Permissibility - Applicability
of the Act, 2014 felt into consideration
Held : As per the provisions of the First Statutes of the Lucknow University, the Committee of Management is
empowered to make appointment on 'Group C' posts - The Committee of Management has power to publish
the advertisement for appointment on 'Group C' posts. Therefore, the process instituted by the Committee of
Management for the advertisement challenged herein, is in no way unauthorized or without the jurisdiction -
The provisions of Act, 2014 are not applicable so far as the appointment in the aforenoted institutions are
concerned. [Para 15, 18 and 20]
(B) Service law - Selection process - Candidates, who have participated in the process,
challenged it after being declared unsuccessful - Permissibility - Rule of Estoppel - Applicability
Held : A person cannot be permitted to approbate or reprobate - If a candidate participated in the selection
process without any protest and after the declaration of the result, he challenges the same selection process,
is impermissible - Once a candidate knowingly accepts, is stopped to deny the validity or the binding effect on
him, as principally the rule of estoppel, will also come into effect in such a scenario - The applicant who
appeared in the selection process, undisputedly, without any protest, has no right to challenge the selection
process, after he was declared unsuccessful. [Para 22, 24, 29 and 30] (E-1)

Case Law Cited
State of Uttar Pradesh vs. Karunesh Kumar, AIR 2023 SC 52; Madan Lal vs. State of J &K, (1995) 3 SCC 486 :
1995 SCC (L&S) 712; K.H. Siraj vs. High Court of Kerala, (2006) SCC 395; Rajasthan State Industrial
Development & Investment Corporation vs. Diamond & Gem Development Corporation Ltd., (2013) 5 SCC 470
- referred to.

List of Acts
Uttar Pradesh Subordinate Service Selection Commission Act, 2014; First Statutes of Lucknow University -
Clause 24.01 and 25.06.

List of Keywords
Advertisement, Selection process, Non-government aided institution, Committee of Management, Outsourcing
agency, Approbate, Reprobate, Direct recruitment, Constitution of Selection Committee, Advantage of a
transaction, Protest.

Case Arising From
Advertisement dated 30.12.2024 issued by the respondent no. 6.

Appearances for Parties
Advs. for the Petitioner : Abhinandan Kumar Pandey, Vimlesh Tiwari, Harsh Chauhan
Advs. for the Respondents : Jogendera Nath Verma, Anurag Kumar Singh, Mahendra Pratap Singh,
Shyama Charan Dixit, Utsav Mishra

(Delivered by Hon'ble Shree Prakash Singh, J.)
3 All. Ashish Kumar & Ors. Vs. State of U.P. & Ors.
467

1. Copy of the government order dated 03-11-2015 placed by Mr. Mahendra Pratap Singh and
Mr. Shyama Charan Dixit, learned counsels for the respondent nos. 6 & 7, is taken on record.

2. Heard Mr. Abhinandan Kumar Pandey, learned counsel for the petitioner, learned
counsel for the State, Mr. Jogendera Nath Verma, learned counsel for the respondent no. 2, Mr.
Anurag Kumar Singh,learned counsel for the respondent no. 5, Mr. Mahendra Pratap Singh and Mr.
Shyama Charan Dixit, learned counsels for the respondent nos. 6 & 7.

3. By means of the present writ petition, the petitioner has assailed the advertisement dated
30-12-2024, issued by the respondent no. 6 and further all the consequential appointments and
selection process undertaken thereof, is also under challenge.

4. Contention put forth by the learned counsel for the petitioner is that after the Uttar
Pradesh Subordinate Service Selection Commission Act, 2014(hereinafter referred to as
"Act,2014"), is promulgated by the state legislature and the same came into effect since 20-062014, the selection in non government aided institutions should have been done by the Commission
and not by any other authority. He submitted that the First Statutes of the Lucknow University does
not provide the correct process of selection and therefore, the same would not be applicable in the
case of the non government aided institutions. He added that the whole process undertaken by the
Committee of Management with respect to the appointments on 'Group C' posts is vitiated as the
same has no authority to undertake the selection process on 'Group C' posts. He further submitted
that the petitioner during the selection process, had made a complaint that the typing test is not
being undertaken fairly, but, that remained unheard.

5. Adding his arguments, he submitted that there are certain discrepancies started from the
publication of the advertisement, by the Committee of Management, uptill the typing test is done
and for this reason, the petitioner has also earlier made a complaint, but, the same has not been
considered. He next submitted that infact the selection process undertaken by the Committee of
Management is impermissible under the law and therefore, the whole selection process is unlawful
and is liable to be quashed.

6. On the other hand, Mr. Mahendra Pratap Singh and Mr. Shyama Charan Dixit, learned
counsels appearing for the respondent nos. 6 & 7 have opposed the contentions aforesaid and
submitted that as an admitted position, in paragraph no. 4 of the writ petition, the institute namely,
Jai Narain Misra, P.G. College (K.K.C.), Charbagh, Lucknow is a non government aided post
graduate college, run and managed by the Committee of Management and is affiliated with the
Lucknow University.

7. It is contended that it's also an admitted fact that in furtherance to the advertisement
published by the Committee of Management, the petitioner applied for the post of Routine
Clerk/Junior Assistant as is mentioned in paragraph no. 8 of the writ petition.

8. It is further submitted that the process of appointment is not governed with the Act,
2014, rather the provision is prescribed under the First Statutes of Lucknow University(hereinafter
referred to as "Statutes") and Clause 24.01 and 25.06 of the Statues, provides the procedure with
468 INDIAN LAW REPORTS ALLAHABAD SERIES
respect to the selection on Class-III posts in non government aided institutions. The aforesaid
provisions reads as under :-

 "24.01. Subject to the provisions of these Statutes the appointing to the posts of class
three employee shall be made by the management of the college and appointment to the posts of
class four employees shall be made by the Principal.

 25.06. (1) (a) The Selection Committee for appointment to the post of. Librarian, Deputy
Librarian or Physical Training, Instructor shall consist of:

 (i) the Head of Management or a member of the Management nominated by him, who
shall be the Chairman.

 (ii) the Principal of the College.

 (iii) one officer to be nominated by the Director of Education (Higher Education).

 (b) The Selection Committee for the appointment to the remaining posts referred to in
Statute 25.01 or Statute 25.03 either by direct recruitment or by promotion shall consist of.

 (i) the Head of the Management or a member of the Management nominated by him who
shall be the Chairman:

 (ii) The Principal of the College;

 (iii) the District Inspector of Schools;

 (iv) the District Employment Officer or an officer authorised by him in this behalf.

 (2) For the purposes of direct recruitment, to the posts referred to in Statutes 25.01 and
25.03 the vacancy shall be advertised in at least two newspapers having adequate circulation in
Uttar Pradesh and names of suitable candidate, shall also be obtained from the concerned District
Employment

 43(3) "For appointment to class-IV post, the vacancy shall be advertised in two
newspapers having vide circulation in Uttar Pradesh.

 (4) No employee shall be eligible for payment of salary from the Salary Payment Account
unless the permission, as contemplated by sub-clause (b) of clause (iii) of Section 60-A of the Act
has been accorded.

 5) If the Management does not agree with the recommendations of the-Selection
Committee,' it shall refer the matter to the approving authority alongwith reasons of its
disagreement, and the decision of the said authority shall be final.
3 All. Ashish Kumar & Ors. Vs. State of U.P. & Ors.
469
9. Referring the aforesaid, he submits that Clause 24.01 of the Statutes provides that
subject to the provision of the statutes, the appointment to the post of Class III employees shall be
made by the management of the college and appointment to the posts of Class IV employees shall
be made by the Principal, though the same has subsequently been changed vide government order
dated 24-12-2015 and the same was by mode of appointment through the outsourcing agency.

10. He added that infact the petitioner in his argument is mistaken and he has wrongly
submitted that the procedure with respect to the appointment on Class III post, is governed with the
provisions of Act,2014, rather it is apparent from the provision of the First Statutes of the Lucknow
University that there is procedure prescribed regarding the appointing authority and the procedure
is also prescribed with respect to the appointment on Class-III posts. He further submitted that the
Committee of Management after due publication of the advertisement has completed the
proceeding, as is prescribed under Clause 25.06 of the First Statutes of Lucknow University and
has declared the result in the month of May,2025 and once the petitioner was declared
unsuccessful, after passing of about one year, he has approached this court by way of challenging
the same selection process, wherein he has been appeared, as is an admitted fact in the pleadings of
the writ petition.

11. He argued that Hon'ble the Apex Court in number of cases has held that the law never
allows a person to both, approbate and reprobate, as denying a fact and at the same time asking the
benefit of the same is impermissible. Therefore, the petitioner, who has already appeared in the
examination and has been declared unsuccessful, has no right to challenge the same selection
process.

12. Adding his arguments, he submitted that the government order dated 03-11-2015, is
apparent that the procedure and provision is provided for the typing test and therefore, the
argument of learned counsel for the petitioner that there is no provision regarding the typing test, is
unfounded.

13. Concluding his arguments, he submitted that the writ petition has been filed only for
the sake of disputing the appointment and selection of the respondents, who have already been
given appointments and are working in the institution and are being paid salary. Thus, submission
is that no interference is warranted.

14. Having heard learned counsels for the parties and after perusal of records, it transpires
that the institution namely, Jai Narain Misra, P.G. College (K.K.C.), Charbagh, Lucknow is a non
government aided post graduate college, which is an admitted fact in between the parties. Further,
the petitioner has appeared in the selection process, which is also an undisputed fact.

15. When this court examines the validity of the advertisement of appointment, challenged
herein, it is apparent that as per the provisions of the First Statutes of the Lucknow University, as
mentioned in the preceding paragraphs, the Committee of Management is empowered to make
appointment on "Group C' posts.
470 INDIAN LAW REPORTS ALLAHABAD SERIES
16. Clause 24.01 & 25.06 of the First Statutes of the University of Lucknow has
categorically envisaged the procedure of the selection, on class IIIrd posts, in non government
aided institutions, affiliated with the Lucknow University. It provides the status of the Committee
of the Management as an appointing authority. The constitution of Selection Committee is also
prescribed regarding the direct recruitment or by the promotion. The selection committee consists
of the Head of the Committee of Management or the member of Committee of Management
nominated by him, who shall be the Chairman. The Principal of the College, the District Inspector
of Schools and the District Employment Officer or an officer authorised by him, would be the
member of the Selection Committee. The Committee of Management has also power to record it's
disagreement against the recommendations of the Selection Committee and may refer it to the
approving authority and the decision of such approving authority, would be final.

17. In the present case, the Committee of Management was in agreement with the
recommendation of the Selection Committee and the same has been approved by the approving
authority.

18. Under the aforesaid scenario, it is beyond doubt that the Committee of Management
has power to publish the advertisement for appointment on 'Group C' posts. Therefore, the process
instituted by the Committee of Management for the advertisement challenged herein, is in noway
unauthorized or without the jurisdiction.

19. I am also of the considered opinion that the provisions prescribed under the First
Statues of Lucknow University readwith the government order dated 03-11-2015 (for typing test),
is very well applicable for appointment on "Group C" posts, in non government aided institutions,
affiliated with Lucknow University.

20. This court finds that the provisions of Act, 2014 are not applicable so far as the
appointment in the aforenoted institutions are concerned.

21. Now, coming to the second issue that the petitioner had appeared in the selection
process and once he was not selected, after passing of about one year, he has challenged the same,
thus question is that whether such challenge to selection process is permissible, under the law.

22. It is long settled law that a person cannot be permitted to approbate or reprobate. This
principle is founded on the rule that no party can accept and reject the same instrument at the same
point of time as no one can be allowed to obtain some advantage of a transaction, saying it valid
and turn round, saying it void for the purpose of securing some other advantage.

23. The Hon'ble Apex Court while dealing with the identical issue, in the case of State of
Uttar Pradesh Vs Karunesh Kumar, reported in AIR 2023 SC 52, has held in paragraph no. 21
as follows:-

 21. A candidate who has participated in the selection process adopted under the 2015
Rules is estopped and has acquiesced himself from questioning it thereafter, as held by this Court
in the case of Anupal Singh (supra):
3 All. Ashish Kumar & Ors. Vs. State of U.P. & Ors.
471
 "55. Having participated in the interview, the private respondents cannot challenge the
Office Memorandum dated 12-10-2014 and the selection. On behalf of the appellants, it was
contended that after the revised Notification dated 12-10-2014, the private respondents
participated in the interview without protest and only after the result was announced and finding
that they were not selected, the private respondents chose to challenge the revised Notification
dated 12-10-2014 and the private respondents are estopped from challenging the selection process.
It is a settled law that a person having consciously participated in the interview cannot turn around
and challenge the selection process."

24. It has categorically been held by the Hon'ble Apex Court that if a candidate participated
in the selection process without any protest and after the declaration of the result, he challenges the
same selection process, is impermissible.

25. Again, in the case of Madan Lal Vs. State of J &K reported in [(1995) 3 SCC 486 :
1995 SCC (L&S) 712], it was held in pagraprah no. 9 as follows:-

 "9.... The petitioners also appeared at the oral interview conducted by the Members
concerned of the Commission who interviewed the petitioners as well as the contesting respondents
concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview.
Only because they did not find themselves to have emerged successful as a result of their combined
performance both at written test and oral interview, they have filed this petition. It is now well
settled that if a candidate takes a calculated chance and appears at the interview, then, only
because the result of the interview is not palatable to him, he cannot turn round and subsequently
contend that the process of interview was unfair or the Selection Committee was not properly
constituted."

26. Hon'ble Supreme Court in the aforenoted Judgment has decided that no calculated
chance can be given to a candidate, who appeared in the selection process and has failed to receive
a result favourable.

27. The same ratio has also been drawn by the Hon'ble Supreme Court, in the case of
K.H.Siraj Vs High Court of Kerala, reported in (2006) SCC 395, wherein paragraph no. 73, the
Hon'ble Apex Court has held as follows:-

 "73. The appellant-petitioners having participated in the interview in this background, it
is not open to the appellant-petitioners to turn round thereafter when they failed at the interview
and contend that the provision of a minimum mark for the interview was not proper."

28. Further the Hon'ble the Apex Court in the case of Rajasthan State Industrial
Development & Investment Corporation vs. Diamond & Gem Development Corporation Ltd.
reported in (2013) 5 SCC 470 has held as under:-

 " that a party cannot be permitted to ?blow hot and cold?, ?fast and loose? or
?approbate and reprobate?. Where one knowingly accepts the benefits of a contract or conveyance
or an order, is estopped to deny the validity or binding effect on him of such contract or
472 INDIAN LAW REPORTS ALLAHABAD SERIES
conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner
as to violate the principles of right and good conscience.

 26. It is evident that the doctrine of election is based on the rule of estoppel, the principle
that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is
one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this
law, a person may be precluded, by way of his actions, or conduct, or silence when he has to speak,
from asserting a right which he would have otherwise had"

29. Reiterating the law rendered in the earlier Judgments, it has been held by the Hon'ble
Apex Court that once a candidate knowingly accepts, is stopped to deny the validity or the binding
effect on him, as principally the rule of estoppel, will also come into effect in such a scenario.

30. In view of the law settled by the Hon'ble Apex Court in the aforesaid matters, I am of
the considered opinion that the applicant who appeared in the selection process, undisputedly,
without any protest, has no right to challenge the selection process, after he was declared
unsuccessful.

31. Consequently, this court finds no merit in the present writ petition.

32. Resultantly, the writ petition is hereby dismissed.

33. No order as to costs.
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(2026) 3 ILRA 472
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.03.2026

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ A No. 2765 of 2026

Km. Rukaiya Bano ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Issue for Consideration
(1) Validity of rejection of Medical Reimbursement Claim on the ground that it was not submitted within a
period of 30 days as provided under GO dated 27.12.2016.
(2) Applicability of the Rule of Functional Interpretation, while interpreting the beneficial legislation.

Headnotes
(A) Service law - Medical Reimbursement Claim - Period of 30 days to make the claim is
provided under GO dated 27.12.2016 - Claim was made beyond this period - The words 'as far