# Ashutosh Kumar Tripathi v. State of U.P. and others - **Citation:** (2009) 3 ILRA 1079 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2009-08-12 - **Case number:** Civil Misc. Writ Petition No. 40476 of 2009 - **Bench:** Amitava Lala, Shishir Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashutosh-kumar-tripathi-v-state-of-u-p-and-others-41471 - **Pages:** 2 ## Headnote (Direct Recruitment) Rules 1985- Rule 23-Rule provides mode of selectionwritten test and Hindi typing test-only these candidate after qualifying in both test on basis of merit shall be called for interview-advertisement provides preference of Hindi Type knowing Candidates- petitioner respondent qualify in written test but remain unsucess in type test-nor called for interview-held-on conflict of rules as well as in advertisement-rule shall prerail as per law developed by apex Court-held-petitioner/ respondent can not be selected- order passed by Single Judge-set a side. Held: Para-27 In view of the judgment dated 09.09.2005 having been set aside by us, we have no hesitation in further expressing the same opinion in respect of the judgment dated 12.01.2009 passed in Writ Petition No.51691 of 2006, inasmuch as the said judgment proceeds on the same presumption and findings that were drawn in favour of the petitioner in Writ Petition No.7660 of ## Text 3 All] Ashutosh Kumar Tripathi V.State of U.P. and others 1079 Chairman, Nagar Panchayat has been taken away from him. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 12.08.2009 BEFORE THE HON'BLE AMITAVA LALA, J. THE HON'BLE SHISHIR KUMAR, J. Civil Misc. Writ Petition No. 40476 of 2009 Ashutosh Kumar Tripathi ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri Bhanu Prakash Singh Sri Avinash Chandra Srivastava Counsel for the Respondents: Sri Amit Sthalekar S.C. U.P. Services (Reservation of Physically Handicapped, Dependent of Freedom fighter and Ex-Serviceman, Amendment Act-1997-Claim of 2% reservation of 1556 post- can be done only by the state govt. with consultation of High Court- Question of reservation not approved by full bench- no such direction can be issued-petition dismissed. Held: Para 3 We have also gone through the Full Bench judgement of our High Court reported in 2005 (4) ESC 2378 (All) Sarika Vs. State of U.P. and others where also it has been held that the reservation will be made, if required, for the judicial service by the State Government, then it should be made in consultation with the High Court. Therefore, when such Full Court of this High Court did not approve any such proposal for reservation, we are of view that the prayer of the petitioner cannot be considered and as such writ petition is liable to be dismissed and is accordingly dismissed, however, without imposing any cost. Case law discussed 2000 (IV) SCC 640, 2005 (4) ESC 2378 (All). (Delivered by Hon'ble Amitava Lala, J.) 1. This writ petition has been made to obtain an appropriate direction upon the Registrar General of this High Court to keep 2% of the posts in direct recruitment to U.P.H.J.S.- 09 reserved for the candidates of dependent of freedom fighters. The learned counsel has relied upon U.P. Public Services (Reservation of Physically Handicapped, Dependence of Freedom Fighters and Ex-servicemen) (Amendment) Act 1997. He said that by way of amendment in Section 3 (1) there shall be reservation at the stage of direct recruitment in public services i.e. two per cent of vacancies for dependents of freedom fighters and one per cent of vacancies for ex-servicemen. 2. However, we have considered the Constitution Bench judgement of the Supreme Court reported in 2000 (IV) SCC 640 State of Bihar and another Vs. Bal Mukund Sah and others which speaks as follows:- "Any scheme of reservation foisted on the High Court without consultation with it directly results in truncating the High Court's power of playing a vital role in the recruitment of eligible candidates to fill up these vacancies and hence such appointments on reserved posts would remain totally ultra vires the scheme of the Constitution enacted for that purpose by the Founding Fathers." 1080 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 3. We have also gone through the Full Bench judgement of our High Court reported in 2005 (4) ESC 2378 (All) Sarika Vs. State of U.P. and others where also it has been held that the reservation will be made, if required, for the judicial service by the State Government, then it should be made in consultation with the High Court. Therefore, when such Full Court of this High Court did not approve any such proposal for reservation, we are of view that the prayer of the petitioner cannot be considered and as such writ petition is liable to be dismissed and is accordingly dismissed, however, without imposing any cost. --------- APPELLATE JURISDITION CIVIL SIDE DATED ALLAHABAD:04.08.2009 BEFORE THE HON'BLE C.K. PRASAD, C.J. THE HON'BLE A.P. SAHI, J. Special Appeal (D) No. 318 of 2006 With Special Appeal (D) No. 615 of 2009 Superintending Engineer, Jhansi Lalitpur Circile, P.W.D. Jhansi and others ...Appellants/Respondents Versus Anoop Kumar Rathore ...Respondent/Petitioner Counsel for the Appellants: Sri K.S. Kushwaha, S.C. Sri M.S. Pipersenia, Addl. CSC Counsel for the Respondent: Sri Indra Raj Singh U.P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rules 1985- Rule 23-Rule provides mode of selectionwritten test and Hindi typing test-only these candidate after qualifying in both test on basis of merit shall be called for interview-advertisement provides preference of Hindi Type knowing Candidates- petitioner respondent qualify in written test but remain unsucess in type test-nor called for interview-held-on conflict of rules as well as in advertisement-rule shall prerail as per law developed by apex Court-held-petitioner/ respondent can not be selected- order passed by Single Judge-set a side. Held: Para-27 In view of the judgment dated 09.09.2005 having been set aside by us, we have no hesitation in further expressing the same opinion in respect of the judgment dated 12.01.2009 passed in Writ Petition No.51691 of 2006, inasmuch as the said judgment proceeds on the same presumption and findings that were drawn in favour of the petitioner in Writ Petition No.7660 of 1999. Therefore, the judgment dated 12.01.2009 passed in Writ Petition No.51691 of 2006 is also set aside. Case law discussed JT 2007(3) SC 352. (Delivered by Hon'ble C.K. Prasad, C.J.) 1. These two special appeals arise, though against separate judgments dated 09.09.2005 and 12.01.2009 respectively, out of common questions of law and fact pertaining to the same process of selection on the post of Junior Clerk in the Public Works Department, against an advertisement dated 10.08.1998 published by the Chief Engineer, Public Works Department, Jhansi Region, Jhansi, where the respondent-petitioner Anoop Kumar Rathore (hereinafter referred to as the ''petitioner') claimed appointment on the basis of the said selection.