# Ashish Pandey & Ors v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 429
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-19
- **Case number:** Writ-A No. 12015 of 2016
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-pandey-ors-v-state-of-u-p-ors-49070
- **Pages:** 10

## Headnote

A. Service Law - Selection - Uttar Pradesh
Group-C Direct recruitment (Mode and
Procedure) Rules-2015 - Rule 8 (1) -
Expression prior approval and approval
connotes different situation, where a
statue uses the term prior approval
anything done without the prior approval,
is nullity. However, where a stature
employs expression approval, in such
cases subsequent rectification can make
the act valid. (Para 15 to 17)

In the present case, it is apparent that the 20
maximum marks of the interview prescribed by
the UPSSSC on 03.02.2016 has been approved
by the Government on 10.06.2016, therefore
the condition of Rule 8(1) of Rules of 2015
stands fulfilled, therefore it cannot be said that
the selection has been held in violation of the
said rule. (Para 18)
430 INDIAN LAW REPORTS ALLAHABAD SERIES
B. The examination of the record...not for
the purpose to make a roving and fishing
enquiry and fish out discrepancies in the
selection process. The entire purpose of
examining the record...limited to the
extent of the allegations made by the
petitioner in his writ petition and further
fresh facts and grounds cannot be brought
on record without the leave of the Court.
Fresh facts and new grounds of attack can
only be taken on the record only upon an
amendment application being filed and
not otherwise through supplementary
affidavits. (Para 20)

In the present case, petitioner had also tried to
argue that the selection has not been made in a
fair and proper manner on the ground that in
the interview a particular number of marks has
been awarded to several candidates who have
been selected, but neither there is any pleading
in this regard in the petition nor any
amendment has been made by the petitioners
after coming to know about it. It goes without
saying that in such cases the career of a
number of candidates is on stake who have
participated in the selection after making
preparation and have successfully cleared the
selection and got the appointment, therefore a
roving and fishing enquiry to fish out the
discrepancies in the selection process without
proper pleading at the instance of unsuccessful
candidate, who participated without any demur
is not permissible. (Para 19)

C. Petitioners participated in the selection
process without any demur or protest and
having failed to get the place in the select
list,
have
challenged
the
selection,
whereas they cannot turn around and
challenge the selection process. (Para 22)

D. The selection cannot be quashed,
unless it is shown by the petitioners that
they have prejudiced in any manner by it,
even if it is found that there is any
discrepancy.
In
the
present
case,
the
petitioners have failed to show that they have
been prejudiced in any manner or suffered any
harm, injury or they were at disadvantage by
subsequent approval on the maximum marks by
the Government, which were fixed by the
Commission. (Para 23)
E. Words and Phrases - (a) 'approval' -
The dictionary meaning of the word 'approval'
includes ratifying of the action, ratification
obviously can be given ex-post facto approval.
(Para 15)

(b) 'prejudice' - As per the Law Lexicon,
"Prejudice" means injurious effect, injury to or
impairment of a right, claim, statement etc.
"Prejudice" is generally defined as meaning "to
the harm, to the injury, to the disadvantage of
someone" and it also means injury or loss. (Para
24)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

9 All. Ashish Pandey & Ors. Vs. State of U.P. & Ors.
429

21. The second reason given by
the High Court however, holds good.
Explanation VI to S.11 provides :

"Where persons litigate bona
fide in respect of a public right or of a
private right claimed in common for
themselves
and
others,
all
persons
interested in such right shall, for the
purposes of this section be deemed to
claim under the persons so litigating."

But
it
is
only
when
the
conditions of Explanation VI are satisfied
that a decision in the litigation will bind
all persons interested in the right litigated
and the onus of proving the want of bona
fides in respect of the previous litigation is
on the party seeking to avoid the decision.
The words "public right" have been added
in Explanation VI in view of the new S.91
C.P.C. and to prevent multiplicity of
litigation in respect of public right. In
view of Explanation VI it cannot be
disputed that S.11 applies to public
interest litigation as well but it must be
proved that the previous litigation was the
public interest litigation not by way of a
private grievance. It has to be a bonafide
litigation in respect of a right which is
common and is agitated in common with
others.

20. Judgment and decree of trial court
dated 21.04.1980 has been maintained by
lower appellate Court by dismissing civil
appeal by judgment and decree dated
07.08.1982
considering
the
point
of
section-11 of Civil Procedure Code.

21. Considering the finding recorded
by courts below ratio of law laid down by
Apex Court as well as from the perusal of
records it is very much clear that present
suit filed by plaintiff is barred by principle
of res-judicata, the substantial question of
law framed is answered accordingly.

21. In the result, it cannot be said that
the courts below have erred in deciding the
issue of res-judicata against the plaintiff.
The appeal lacks merit and is liable to be
dismissed. Appeal is hereby dismissed.
----------
(2022) 9 ILRA 429
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.09.2022

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Writ-A No. 12015 of 2016

Ashish Pandey & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Rakesh Kumar Singh, Pramendra Kumar
Singh, Ravi Shanker Tripathi

Counsel for the Respondents:
C.S.C., Dr. L.P. Mishra, Gaurav Mehrotra,
Narendra Kumar Pandey, Prafulla Tiwari,
Sameer Kalia, Sidharth Verma

A. Service Law - Selection - Uttar Pradesh
Group-C Direct recruitment (Mode and
Procedure) Rules-2015 - Rule 8 (1) -
Expression prior approval and approval
connotes different situation, where a
statue uses the term prior approval
anything done without the prior approval,
is nullity. However, where a stature
employs expression approval, in such
cases subsequent rectification can make
the act valid. (Para 15 to 17)

In the present case, it is apparent that the 20
maximum marks of the interview prescribed by
the UPSSSC on 03.02.2016 has been approved
by the Government on 10.06.2016, therefore
the condition of Rule 8(1) of Rules of 2015
stands fulfilled, therefore it cannot be said that
the selection has been held in violation of the
said rule. (Para 18)
430 INDIAN LAW REPORTS ALLAHABAD SERIES
B. The examination of the record...not for
the purpose to make a roving and fishing
enquiry and fish out discrepancies in the
selection process. The entire purpose of
examining the record...limited to the
extent of the allegations made by the
petitioner in his writ petition and further
fresh facts and grounds cannot be brought
on record without the leave of the Court.
Fresh facts and new grounds of attack can
only be taken on the record only upon an
amendment application being filed and
not otherwise through supplementary
affidavits. (Para 20)

In the present case, petitioner had also tried to
argue that the selection has not been made in a
fair and proper manner on the ground that in
the interview a particular number of marks has
been awarded to several candidates who have
been selected, but neither there is any pleading
in this regard in the petition nor any
amendment has been made by the petitioners
after coming to know about it. It goes without
saying that in such cases the career of a
number of candidates is on stake who have
participated in the selection after making
preparation and have successfully cleared the
selection and got the appointment, therefore a
roving and fishing enquiry to fish out the
discrepancies in the selection process without
proper pleading at the instance of unsuccessful
candidate, who participated without any demur
is not permissible. (Para 19)

C. Petitioners participated in the selection
process without any demur or protest and
having failed to get the place in the select
list,
have
challenged
the
selection,
whereas they cannot turn around and
challenge the selection process. (Para 22)

D. The selection cannot be quashed,
unless it is shown by the petitioners that
they have prejudiced in any manner by it,
even if it is found that there is any
discrepancy.
In
the
present
case,
the
petitioners have failed to show that they have
been prejudiced in any manner or suffered any
harm, injury or they were at disadvantage by
subsequent approval on the maximum marks by
the Government, which were fixed by the
Commission. (Para 23)
E. Words and Phrases - (a) 'approval' -
The dictionary meaning of the word 'approval'
includes ratifying of the action, ratification
obviously can be given ex-post facto approval.
(Para 15)

(b) 'prejudice' - As per the Law Lexicon,
"Prejudice" means injurious effect, injury to or
impairment of a right, claim, statement etc.
"Prejudice" is generally defined as meaning "to
the harm, to the injury, to the disadvantage of
someone" and it also means injury or loss. (Para
24)

Writ petition dismissed. (E-4)

Precedent followed:

1. Ashok Kumar Das & ors. Vs University
of Burdwan & ors., (2010) 3 SCC 616
(Para 7)

2. Bajaj Hindustan Ltd. Vs St. of U. P. & ors.,
(2016) 12 SCC 613 (Para 7)

3. Ms. Shaija Shah Vs Executive Committee,
Bharat Varshiya national Association & anr.,
1994 SCC Online All 654; (1995) All LJ 2033
(Para 7)

4. Joint Director of Education, Azamgarh Mandal
& anr. Vs Udai Raj Vishwakarma & anr., 2007
SCC Online All 964; (2007) 3 All LJ 33 (DB)
(Para 7)

5. Pawan Kumar Vs St. of U.P. & ors., Writ-A
No.50119 of 2006, Judgment and order dated
13.03.2013 (Para 7)

6. Madan Lal Vs St. of J. & K., 1995 (3) SCC 486
(Para 22)

7. Marripati Nagraja Vs St. of Andhra Pradesh,
2007 (11) SCC 522 (Para 22)

8. Dhananjay Malik Vs St. of Uttarakhand, 2008
(4) SCC 171 (Para 22)

9. Amlan Jyoti Barooah Vs St. of Assam, 2009
(3) SCC 227 (Para 22)

10. K.A. Nagamani Vs Indian Airlines, 2009 (5)
SCC 515 (Para 22)
9 All. Ashish Pandey & Ors. Vs. State of U.P. & Ors.
431
11. Manish Kr. Shahi Vs St. of Bihar & ors., 2010
(12) SCC 576 (Para 22)

12. Hc Pradeep Kumar Rai & ors. Vs Dinesh
Kumar Pandey & ors., (2015) 11 SCC 493 (Para
22)

13. Madras Inst. Of Dev. Studies & anr. Vs K.
Sivasubramaniyan & ors, (2016) 1 SCC 454
(Para 22)

14. Manharibhai Muljibhai Kakadia & anr. Vs
Shaileshbhai Mohanbhai Patel & ors., (2012) 10
SCC 517 (Para 24)

Precedent distinguished:

1. Dharmendra Kumar &ors. Vs Abhishek Kumar
& ors., Special Appeal No.416 of 2016 (Para 21)

Present petition assails select list dated
17.05.2016, issued by
Uttar Pradesh
Subordinate
Services
Selection
Commission (UPSSSC), which has been
issued after selection in pursuance of the
advertisement
no.14
/
15
dated
03.09.2015.

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

1. Heard, Shri Rakesh Kumar Singh
& Shri Pramendra Kumar Singh, learned
counsels
for
the
petitioners,
learned
Standing Counsel for respondents no.1 and
2, Shri Gaurav Mehrotra, learned counsel
for respondent no.3 and Shri Sameer Kalia,
learned counsel appearing for respondents
no.6, 8, 9 and 10. Shri Prafulla Tiwari,
learned counsel appearing on behalf of
some of the private respondents submitted
that he has instructions not to appear and
argue on their behalf.

2. By means of the instant writ
petition, the petitioners have approached
this Court challenging the select list dated
17.05.2016 issued by the Uttar Pradesh
Subordinate
Services
Selection
Commission
(here-in-after
referred
as
UPSSSC) / opposite party no.3, which has
been issued after selection in pursuance of
the
advertisement
no.14/15
dated
03.09.2015. A further prayer has been
made for a direction to the opposite party
no.3 for re-selection for the post of X-Ray
Technician in accordance with law.

3. The brief facts of the case, as culled
out from the pleadings on record, are that
the
opposite
party
no.3
issued
the
advertisement no.14/15 on 03.09.2015 for
various posts including the post of X-Ray
Technician under the Director, Medical and
Health, U.P., Lucknow. The total number
of posts advertised were 403. The mode of
selection on the post of X-Ray Technician
was interview. It was also provided in the
advertisement that the marks of the
interview would be fixed with the approval
of the State Government in accordance
with the notification dated 11.05.2015, by
which the Uttar Pradesh Group-C Direct
recruitment (Mode and Procedure) Rules2015 (here-in-after referred as Rules of
2015) were notified. In pursuance thereof
the selection has been held after holding
interview, in which the petitioners had also
participated, however they could not get the
place in select list issued by the UPSSSC,
which is impugned in the present writ
petition.

4. Learned counsel for the petitioner
submitted that the selection for the post in
question of X-Ray Technician has been
held in violation of Rule 8 (1) of the Rules
of 2015 without fixing and disclosing the
marks of interview with the approval of the
Government. The interviews were held in
hurried manner. The interviews were held
w.e.f. 06.05.2016 to 14.05.2016, thereafter
15.05.2016 and 16.05.2016 were Saturday
and Sunday and the result was declared on
17.05.2016. After filing of the instant
432 INDIAN LAW REPORTS ALLAHABAD SERIES
petition by the petitioners on 18.05.2016,
appointment
letters
were
issued
on
01.06.2016 but the approval of marks of
interview in terms of Rule 8 (1) of the Rule
of 2015 has been granted by the State
Government on 10.06.2016. Therefore, the
whole selection vitiates as the interviews
have been held and the selection has been
held without approval of marks of the
interview by the Government in violation
of the aforesaid rule. Thus, the selection
can not be allowed to continue and the
select list is liable to be quashed by this
Court with a direction to the respondent
no.2 and 3 to make re-selection for the post
of X-Ray Technician in accordance with
law.

5. Learned counsel for the respondent
no.3 submitted that the present writ
petition, on behalf of the petitioners, who
had participated in the selection without
any demur and are unsuccessful, is not
maintainable. He further submitted that
Rule 8 (1) of the Rules of 2015 only
prescribes that the marks of written
examination/interview and rules relating
thereof shall be such as prescribed by the
Commission from time to time with the
approval of the Government. The UPSSSC
fixed the maximum marks of interview as
20, in its meeting held on 03.02.2016,
which were sent to the Government for
approval on 05.02.2016 and thereafter the
selection proceeded in view of the request
of the department through letter dated
19.08.2015 for selection with utmost
expedition and the selection was made in
accordance with the marks fixed by the
UPSSSC and the maximum marks fixed by
the Commission has been approved by the
Government by means of the letter dated
10.06.2016, and once the approval has been
granted by the Government, the condition
prescribed under Rule 8 (1) of the Rules of
2015 stands fulfilled because it does not
prescribe the prior approval for selection.

6. On the basis of above, learned
counsel for the respondent no.3 submitted
that there is no illegality or error in the
selection in question and the select list has
been issued after holding the selection in
accordance with law and the rules. The writ
petition is misconceived and lacks merit. It
is liable to be dismissed.

7. Learned counsel for the respondent
no.3 relied on Ashok Kumar Das and
Others Vs. University of Burdwan and
Others; (2010) 3 SCC 616, Bajaj
Hindustan Ltd. Vs. State of Uttar
Pradesh and Others; (2016) 12 SCC 613,
Ms.
Shaija
Shah
Vs.
Executive
Committee, Bharat Varshiya national
Association and Another; 1994 SCC
Online All 654/ (1995) All LJ 2033, Joint
Director
of
Education,
Azamgarh
Mandal and Another Vs. Udai Raj
Vishwakarma and Another; 2007 SCC
Online All 964/ (2007) 3 All LJ 33 (DB)
and
judgment
and
order
dated
13.03.2013 passed by a coordinate Bench
of this Court in Writ-A No.50119 of
2006; Pawan Kumar Vs. State of U.P.
and Others.

8.

Learned
counsel
for
the
respondents no.6, 8, 9 and 10, adopting the
submissions of learned counsel for the
respondent no.3, further submitted that the
merit of selection does not affect in any
manner
by
the
approval
of
marks
subsequent to the issuance of the select list
in any manner. He further submitted that
the petitioners has failed to point out any
prejudice which may have been caused to
the petitioners by approval of the maximum
marks of interview after issuance of the
select list and if no prejudice has been
9 All. Ashish Pandey & Ors. Vs. State of U.P. & Ors.
433
caused to the petitioners, it does not give
right to the petitioners to challenge the
selection and would not call for any
interference by this Court as the selection
has been held in accordance with law and
there is no illegality or error in the selection
made by the UPSSSC. The writ petition is
misconceived and lacks merit. It is liable to
be dismissed.

9. I have considered the submissions
of learned counsel for the parties and
perused the record.

10. The select list has been challenged
on the ground that the interview has been
held in violation of terms of advertisement
and Rule 8 (1) of the Rules of 2015 without
fixing
and
disclosing
the
marks
of
interview.

11. In view of above challenge to the
select list, Rule 8 (1) of Rules of 2015
needs to be examined by this Court,
therefore the same is extracted here-inbelow, for ready reference:-

"8. (1) The procedure for direct
recruitment, the syllabus, marks of written
examination/interview
and
the
rules
relating thereof shall be such as prescribed
by the Commission from time to time with
the approval of the Government."

12. The selection on the post of XRay Technician under the Directorate of
Medical and Health, U.P., Lucknow has
been held after holding interviews in
pursuance of the advertisement no.14/15
dated 03.09.2015. It was provided in the
advertisement that the marks of the
interview would be fixed with the approval
of the State Government in accordance
with the provision made in the Uttar
Pradesh Group-C Direct recruitment (Mode
and Procedure) Rules-2015, notified on
11.05.2015. The UPSSSC decided to fix
the marks of interview in its meeting held
on 03.02.2016, a copy of which has been
filed by the respondent no.3 as annexure
no.2 to the counter affidavit. The aforesaid
decision
of
the
UPSSSC
was
communicated to the Government for
required approval under Rule 8(1) of the
Rules of 2015 by means of letter dated
05.02.2016, a copy of which is as annexure
no.3 to the counter affidavit. In the
meantime, the UPSSSC proceeded with the
selection in view of the request of the
Government, by means of the letter dated
19.08.2015, to hold the selection with
utmost expedition, a copy of which is
annexure no.4 to the counter affidavit. The
interviews were held w.e.f. 06.05.2016 to
14.05.2016, for which the petitioners were
also called and they participated without
any protest. After holding the interviews,
the respondent no.3 declared the result of
the selection on 17.05.2016. In pursuance
of the selection, the appointment letters
were issued by the Government on
01.06.2016. The State Government, in
pursuance of the letter dated 05.02.2016 of
the UPSSSC, granted approval on the
maximum marks of 20 of interview fixed
by the UPSSSC, under Rule 8(1) of the
Rules of 2015, by means of the letter dated
10.06.2016, a copy of which is annexed as
annexure no.5 to the counter affidavit filed
by the respondent no.3. Thus, the approval
on the maximum marks fixed by the
Commission for interview was granted by
the State Government.

13. The action of the UPSSSC in
holding the interviews without approval on
the marks fixed by the Commission has
been assailed in this petition on the ground
that it is in violation of Rule 8(1) of the
Rules of 2015. Sub-Rule (1) of Rule 8
434 INDIAN LAW REPORTS ALLAHABAD SERIES
provides
that
the
marks
of
written
examination / interview shall be such as
prescribed by the Commission from time to
time with the approval of the Government,
meaning thereby the maximum marks of
the interview are to be prescribed by the
Commission i.e. UPSSSC, on which the
approval of the Government is required,
therefore on approval of maximum marks
of interview, by the Government which
have been fixed by the Commission before
interviews, the condition of Rule 8 (1)
stands fulfilled, even if it is after the
selection has been held because the Rule
does not prescribes prior approval or
permission on the makrs fixed by the
Commission.

14. The Hon'ble Supreme Court, in
the case of Ashok Kumar Das and
Others Vs. University of Burdwan and
Others (Supra), in regard to an identical
provision of determining the terms and
conditions of service of non-teaching
staff with the approval of the State
Government held that since the words
used are "with the approval of the State
Government", the Executive Council of
the University could determine the terms
and conditions of service of the nonteaching staff and obtain the approval of
the State Government subsequently and
in case the State Government did not
grant approval subsequently, any action
taken on the basis of the decision of the
Executive Council of the University
would be invalid and not otherwise. The
relevant paragraphs 11, 12, 13, 14 and 15
are extracted below:-

"11. In Black's Law Dictionary
(Fifth Edition), the word "approval" has
been explained thus:

"the act of confirming, ratifying,
assenting, sanctioning, or consenting to
some act or thing done by another."
Hence, approval to an act or decision can
also be subsequent to the act or decision.

12. In U. P. Avas Evam Vikas
Parishad (supra), this Court made the
distinction between permission, prior
approval and approval. Para 6 of the
judgment is quoted hereinbelow:

"6. This Court in Life Insurance
Corpn. of India v. Escorts Ltd. [(1986) 1
SCC 264], considering the distinction
between
"special
permission"
and
"general permission", previous approval"
or "prior approval" in para 63 held that:
"We are conscious that the word `prior'
or `previous' may be implied if the
contextual situation or the object and
design of the legislation demands it, we
find no such compelling circumstances
justifying reading any such implication
into Section 29(1) of the Act.

" Ordinarily, the difference
between approval and permission is that
in the first case the action holds good
until it is disapproved, while in the other
case it does not become effective until
permission is obtained. But permission
subsequently granted may validate the
previous Act, it was stated in Lord
Krishna Textiles Mills Ltd. v. Workmen
[AIR 1961 SC 860], that the Management
need not obtain the previous consent
before
taking
any
action.
The
requirement that the Management must
obtain approval was distinguished from
the requirement that it must obtain
permission, of which mention is made in
Section 33(1)."

13. Following the decision in U.
P. Avas Evam Vikas Parishad (supra), this
Court again held in High Court of
Judicature for Rajasthan v. P. P. Singh &
Ors. (supra) in para 40:

"40.
When
an
approval
is
required, an action holds good and only if
9 All. Ashish Pandey & Ors. Vs. State of U.P. & Ors.
435
it is disapproved it loses its force. Only
when a permission is required, the decision
does not become effective till permission is
obtained. (See U.P. Avas Evam Vikas
Parishad v. Friends Coop. Housing Society
Ltd.)."

14. Section 21 (xiii) of the
Burdwan University Act, 1981 is quoted
herein below:-

"21. Subject to the provisions of
this Act, the Executive Council shall
exercise the following powers and perform
the following functions:

(i) to (xii) ........................

(xiii) to determine, with the
approval of the State Government, the
terms
and
conditions
of
service
of
Librarians and non-teaching staff."

15. The words used in Section 21
(xiii) are not "with the permission of the
State Government" nor "with the approval
of the State Government", but "with the
approval of the State Government". If the
words used were "with the permission of
the State Government", then without the
permission of the State Government the
Executive Council of the University could
not determine the terms and conditions of
service of non-teaching staff. Similarly, if
the words used were "with the prior
approval of the State Government", the
Executive Council of the University could
not determine the terms and conditions of
service of the non-teaching staff without
first obtaining the approval of the State
Government. But since the words used are
"with
the
approval
of
the
State
Government", the Executive Council of the
University could determine the terms and
conditions of service of the non-teaching
staff and obtain the approval of the State
Government subsequently and in case the
State Government did not grant approval
subsequently, any action taken on the basis
of the decision of the Executive Council of
the University would be invalid and not
otherwise."

15. The Hon'ble Supreme Court, in
the case of Bajaj Hindustan Ltd. Vs.
State of Uttar Pradesh and Others
(Supra), relying on the aforesaid judgment
and order rendered in the case of Ashok
Kumar Das and Others Vs. University of
Burdwan and Others, held that the
dictionary meaning of the word 'approval'
includes ratifying of the action, ratification
obviously can be given ex-post facto
approval. It has further been observed that
in the case of approval, the action holds
until it is disapproved while in other case
until permission is obtained. The relevant
paragraph 7 is extracted here in below:-

"7. As is clear from the above,
the dictionary meaning of the word
"approval" includes ratifying of the
action, ratification obviously can be given
ex post facto approval. Another aspect
which is highlighted is a difference
between approval and permission by the
assessing authority that in the case of
approval, the action holds until it is
disapproved while in other case until
permission is obtained. In the instant case,
the action was approved by the assessing
authority. The Court also pointed out that
if in those cases where prior approval is
required, expression "prior" has to be in
the particular provision. In the proviso to
sub-section (1) of Section 3-A word
"prior" is conspicuous. For all these
reasons, it was not a case for levying any
penalty upon the appellant. We, therefore,
allow this appeal and set aside the
impugned judgment [Bajaj Hindustan Ltd.
v. State of U.P., Misc. Single No. 3088 of
1999, order dated 30-9-2004 (All)] of the
High Court as well as the penalty. No
order as to costs.."
436 INDIAN LAW REPORTS ALLAHABAD SERIES

16. A division bench of this Court, in
the case of Ms. Shaija Shah Vs. Executive
Committee, Bharat Varshiya national
Association
and
Another
(Supra),
observed that expression prior approval and
approval
connotes
different
situation,
where a statue uses the term prior approval
anything done without the prior approval, is
nullity. However, where a stature employs
expression
approval,
in
such
cases
subsequent rectification can make the act
valid.

17. Another division bench of this
Court, in the case Joint Director of
Education,
Azamgarh
Mandal
and
Another Vs. Udai Raj Vishwakarma and
Another (Supra), held that in case the act
requires only approval the action holds the
action holds good until it is disapproved.
The relevant paragraphs 16 and 17 are
extracted here-in-below:-

"16. On the contrary where the
statute
specifically
provides
"prior
approval" before passing any order, what
its effects would be has been considered in
some other cases which we propose to refer
as under. Rule 11 of U.P. Recognized Basic
Schools (Recruitment and Conditions of
Service of Teachers and other Conditions)
Rules, 1975 provides that no service can be
terminated without prior permission from
the District Basic Officer. A Division Bench
of this Court in Ms. Shilaja Shah v.
Executive Committee, Bharat Varshiya
National Association, 1995 (25) ALR 88 :
(1995 All LJ 2033) held that expression
"prior approval" and "approval" connotes
different situation. Where a statute uses the
term "prior approval" anything done
without prior approval is nullity. Where a
statute employs expression "approval",
however,
in
such
cases
subsequent
ratification can make the act valid.

17. Section 59(1)(a) of U.P.
Urban Planning and Development Act,
1973 provides for "prior approval". The
Apex Court in U.P. Avas Evam Vikas
Parishad v. Friends Coop. Housing Society
Ltd., 1995 Supp (3) SCC 456 : (1995 All LJ
2066) held that "prior approval" and
"approval" are two different connotations
and if the statute does not mention "prior
approval" what is material would be only
"approval". The earlier judgment in Life
Insurance Corporation of India v. Escorts
Ltd., (1986) 1 SCC 264 : (AIR 1986 SC
1370) was also referred where it was held
that the word ''prior' and ''previous' may be
implied if the contextual situation or
circumstances justify such reading and the
Act which requires only approval, the
action holds good until it is disapproved."

18. Adverting to the facts of the
present case, it is apparent that the 20
maximum
marks
of
the
interview
prescribed by the UPSSSC on 03.02.2016
has been approved by the Government on
10.06.2016, therefore the condition of Rule
8(1) of Rules of 2015 stands fulfilled,
therefore it can not be said that the
selection has been held in violation of the
said rule.

19. Learned counsel for the petitioner
had also tried to argue that the selection has
not been made in a fair and proper manner
on the ground that in the interview a
particular number of marks has been
awarded to several candidates who have
been selected, but neither there is any
pleading in this regard in the petition nor
any amendment has been made by the
petitioners after coming to know about it.
Therefore, this Court is of the view that in
absence of any pleading, the contention
raised at the time of argument can not be
accepted. It goes without saying that in
9 All. Ashish Pandey & Ors. Vs. State of U.P. & Ors.
437
such cases the career of a number of
candidates
is
on
stake
who
have
participated in the selection after making
preparation and have successfully cleared
the selection and got the appointment,
therefore a roving and fishing enquiry to
fish out the discrepancies in the selection
process without proper pleading at the
instance of unsuccessful candidate, who
participated without any demur is not
permissible. Such contention is only liable
to be repelled.

20. A coordinate Bench of this Court,
in the case of Pawan Kumar Vs. State of
U.P. and Others; Writ-A No.50119 of
2006
(Supra),
has
held
that
the
examination of the record was not for the
purpose to make a roving and fishing
enquiry and fish out discrepancies in the
selection process. The entire purpose of
examining the record was limited to the
extent of the allegations made by the
petitioner in his writ petition and further
fresh facts and grounds cannot be brought
on record without the leave of the Court
and such practice adopted in the present
case is deprecated. The Court is of the
opinion that fresh facts and new grounds of
attack can only be taken on the record only
upon an amendment application being filed
and not otherwise through supplementary
affidavits. The relevant paragraph is
extracted here-in-below:-

"The Court is constrained to
observe that the examination of the record
was not for the purpose to make a roving
and
fishing
enquiry
and
fish
out
discrepancies in the selection process. The
entire purpose of examining the record was
limited to the extent of the allegations made
by the petitioner in his writ petition.
Further, fresh facts and grounds cannot be
brought on record without the leave of the
Court. Such practise adopted in the present
case is deprecated. The Court is of the
opinion that fresh facts and new grounds of
attack can only be taken on the record only
upon an amendment application being filed
and not otherwise through supplementary
affidavits."

21. So far as the judgment and order
dated 06.04.2017, passed in bunch of
special appeals leading being Special
Appeal No.416 of 2016; Dharmendra
Kumar and 2 Others Vs. Abhishek
Kumar and Others, relied by learned
counsel for the petitioners, is concerned,
the same is not applicable on the facts and
circumstances of the present case and is of
no assistance to the petitioners. In the said
case the selection was assailed on the
ground that it is contrary to service rules
and the instructions, therefore it has been
held to be in one the exceptions carved out
by the Hon'ble Supreme Court, whereas in
the present case the selection has been held
in accordance with the rules as discussed
above.

22. This Court also finds that the
petitioners, having participated in the
selection process without any demur or
protest and having failed to get the place in
the select list, have challenged the
selection, whereas they can not turn around
and challenge the selection process. This
issue has been settled by a series of
decisions of Hon'ble the Supreme Court,
namely, Madan Lal Vs. State of Jammu
and kashmir; 1995 (3) SCC 486, Marripati
Nagraja Vs. State of Andhra Pradesh;
2007 (11) SCC 522, Dhananjay Malik Vs.
State of Uttarakhand; 2008 (4) SCC 171,
Amlan Jyoti Barooah Vs. State of Assam;
2009 (3) SCC 227, K.A. Nagamani Vs.
Indian Airlines; 2009 (5) SCC 515,
Manish Kr. Shahi Vs. State of Bihar and
438 INDIAN LAW REPORTS ALLAHABAD SERIES
others; 2010 (12) SCC 576, Hc Pradeep
Kumar Rai & Ors vs Dinesh Kumar
Pandey & Ors; (2015) 11 SCC 493 and
Madras Inst.Of Dev. Studies & Anr vs K.
Sivasubramaniyan & Ors; (2016) 1 SCC
454.

23. There is another aspect of the
matter, as argued by learned counsel for some
of the private respondents also, that even if it
is found that there is any discrepancy, the
selection can not be quashed, unless it is
shown by the petitioners that they have
prejudiced in any manner by it. In the present
case, the petitioners have failed to show that
they have been prejudiced in any manner or
suffered any harm, injury or they were at
disadvantage by subsequent approval on the
maximum marks by the Government, which
were fixed by the Commission.

24. As per the Law Lexicon,
"Prejudice" means injurious effect, injury to
or impairment of a right, claim, statement etc.
The Hon'ble Supreme Court, in the case of
Manharibhai
Muljibhai
Kakadia
and
Another Vs. Shaileshbhai Mohanbhai Patel
and Others, (2012) 10 SCC 517, has held
that "Prejudice" is generally defined as
meaning "to the harm, to the injury, to the
disadvantage of someone" and it also means
injury or loss. The relevant paragraphs 47.1
to 47.4 are extracted here-in-below :-

"47.1. Black's Law Dictionary (8th
Edn.) explains "prejudice" to mean damage
or detriment to one's legal rights or claims.
Concise Oxford English Dictionary [10th
Edn., Revised] defines "prejudice" as under:

"Prejudice.-- n. (1) preconceived
opinion that is not based on reason or actual
experience. ≫ unjust behaviour formed on
such a basis. (2) chiefly Law harm or injury
that results or may result from some action or
judgment. ≫ v. (1) give rise to prejudice in
(someone); make biased. (2) cause harm to (a
state of affairs)."

47.2.
Webster
Comprehensive
Dictionary (International Edn.) explains
"prejudice" to mean (i) a judgment or
opinion, favourable or unfavourable, formed
beforehand or without due examination ...
detriment arising from a hasty and unfair
judgment; injury; harm.

47.3. P. Ramanatha Aiyar; the Law
Lexicon (The Encyclopaedic Law Dictionary)
explains "prejudice" to mean injurious effect,
injury to or impairment of a right, claim,
statement, etc.

47.4. "Prejudice" is generally
defined as meaning "to the harm, to the
injury, to the disadvantage of someone". It
also means injury or loss."

25. In view of above, this Court is of
the view that there is no illegality or error and
violation of Rule 8(1) of the Rules of 2015 in
selection in question, therefore this Court is
of the view that the writ petition has been
filed on misconceived ground, which lacks
merit and is liable to be dismissed.

26. The writ petition is, accordingly,
dismissed. No order as to costs.
----------
(2022) 9 ILRA 438
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.09.2022

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Application U/S 482 No. 2958 of 2022

Sallahuddin ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Vivek Abhir