# Chandra Bhwan Pushpakar v. State of U.P

- **Citation:** (2012) 1 ILRA 296
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-03-12
- **Case number:** Service Single No. 5412 of 1999
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-bhwan-pushpakar-v-state-of-u-p-42123
- **Pages:** 4

## Headnote

Constitution of India, Article 14 and 16appointment
on
post
of
Sinchpalpetitioner Stood first in merit-candidates
placed at Serial no. 4 and 5-appointed
after training-but ignored the petitionerauthorities
unable
to
explain
their
discriminatory action-held entitled to get
appointment from the date of juniors
appointment-with
all
consequential
benefits-salary for the period of non
working shall be recovered from erring
officer.

Held: Para 9

Be that as it may, petitioner neither can
be left at the mercy of respondents nor
can
be
denied
complete
justice
otherwise this Court will be failing in its
constitutional obligation of doing justice
in all perspective so as to uphold
confidence of the people in the system of
administration of justice and also to
maintain their faith that ultimately they
would get wholesome justice in the
hands of law. The respondents have
denied appointment to petitioner on
wholly nonest, illegal and unfounded
reasons despite having discriminated
him in the matter of appointment and
thereby denying his constitutional right
1 All] Chandra Bhwan Pushpakar. V. State of U.P.
297
of
earning
livelihood
by
getting
employment without any fault on his
part. The petitioner therefore is entitled
for a direction with respect to his
appointment and consequential benefits.
Case law discussed:
1991(3)SCC 47.

## Text

296 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Appellant-Insurance Company to make
deposit of the amount of compensation,
and recover the same from the insured
person i.e. the owner of the vehicle in
question-respondent no. 2 herein.

39. After making deposit of the
amount awarded under the impugned
award, it will be open to the AppellantInsurance Company to initiate appropriate
proceedings for recovery of the amount
from the owner of the aforesaid vehicle in
question (respondent no. 2 herein), and
seek
appropriate
directions
in
such
proceedings.

40. It is made clear that in case any
appeal is filed by the claimant-respondent
no. 1 or by the owner of the aforesaid
vehicle in question (respondent no. 2
herein), it will be open to the AppellantInsurance Company to contest the same on
the grounds legally open to the AppellantInsurance Company.

41. The amount of Rs.25,000/-
deposited by the Appellant-Insurance
Company while filing the present appeal,
will be remitted to the Tribunal for being
adjusted towards the amount to be
deposited by the Appellant-Insurance
Company, as per the directions given in the
impugned award.

42.

Subject
to
the
above
observations, the Appeal filed by the
Appellant-Insurance
Company
is
dismissed.

43. However, on the facts and in the
circumstances of the case, there will be no
order as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.03.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Service Single No. 5412 of 1999

Chandra Bhwan Pushpakar ...Petitioner
Versus
State of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri Ajmal Khan
Sri S.P. Tewari

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 14 and 16appointment
on
post
of
Sinchpalpetitioner Stood first in merit-candidates
placed at Serial no. 4 and 5-appointed
after training-but ignored the petitionerauthorities
unable
to
explain
their
discriminatory action-held entitled to get
appointment from the date of juniors
appointment-with
all
consequential
benefits-salary for the period of non
working shall be recovered from erring
officer.

Held: Para 9

Be that as it may, petitioner neither can
be left at the mercy of respondents nor
can
be
denied
complete
justice
otherwise this Court will be failing in its
constitutional obligation of doing justice
in all perspective so as to uphold
confidence of the people in the system of
administration of justice and also to
maintain their faith that ultimately they
would get wholesome justice in the
hands of law. The respondents have
denied appointment to petitioner on
wholly nonest, illegal and unfounded
reasons despite having discriminated
him in the matter of appointment and
thereby denying his constitutional right
1 All] Chandra Bhwan Pushpakar. V. State of U.P.
297
of
earning
livelihood
by
getting
employment without any fault on his
part. The petitioner therefore is entitled
for a direction with respect to his
appointment and consequential benefits.
Case law discussed:
1991(3)SCC 47.

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. Heard learned counsel for the
petitioner and perused the record.

2. The petitioner has sought a
mandamus commanding respondents to
appoint him on the post of Seenchpal from
the date persons junior to him, i.e. lower in
merit, were appointed and given regular
posting.

3. It is stated that certain posts of
Seenchpal
were
advertised
pursuant
whereto petitioner applied and selected. He
was given training but after completion of
training he was not given appointment
though persons lower in merit to petitioner
were given appointment. The petitioner
raised dispute and submitted representation.
Vide Annexure 8 to the writ petition, which
is a letter dated 22.3.1999 sent by
Superintending
Engineer,
16th
Circle,
Irrigation Work, Pratapgarh, to the Chief
Engineer, it was informed that admittedly
petitioner was first in merit and persons at
serial No.4 and 5 in merit were given
regular appointment as "Seenchpal" by
Executive Engineer Raibareilly, Sharda
Nahar ignoring petitioner's higher merit,
hence petitioner's claim for appointment is
justified and he should be so appointed.
However nothing proceeded further hence
the petitioner preferred this writ petition.

4. In the counter affidavit respondents
have said that after receipt of letter dated
22.3.1999 sent by Superintending Engineer,
the matter was under consideration before
Chief Engineer but in the meantime, a
Government Order was issued on 5.5.1999
imposing ban on further appointments on
the post of Seenchpal declaring it a dying
cadre. Hence petitioner could not be
appointed on the said post.

5. It is however not disputed in the
counter affidavit that petitioner was at serial
no.1 in the merit list. While persons at serial
no.4 and 5 were appointed by concerned
Executive Engineer the petitioner was
ignored. No justification is given, why those
lower in merit were appointed by competent
authority as 'Seenchpal' ignoring higher
merit
of
petitioner.
Evidently,
non
appointment of petitioner despite his higher
merit is sheer arbitrary, discriminatory and
illegal.
It
also
shows
selective
discriminatory treatment by appointing
authority. Instead of taking any action
against the said authority, respondents
higher authorities have tried to blame
petitioner
relying
on
subsequent
Government order dated 5.5.1999 which
has nothing to do in the matter since
petitioner's claim rests on the fact that
persons lower in merit have already been
appointed, therefore he has a right to be
appointed from the date, persons lower in
merit were appointed.

6. It cannot be doubted that no person
has a right of appointment. The only right
conferred under Articles 14 and 16(1) of the
Constitution is the right of consideration for
employment. However, it does not mean
that after making such consideration, an
authority can proceed to make appointments
arbitrarily
ignoring
consequences
of
consideration i.e. select list prepared by
competent authority after consideration of
all eligible candidates for employment. It is
not unworthy to mention that once selection
298 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
is made and an authority proceeded to make
appointment, it is bound to follow merit list
and any deviation therefrom and that too
without any reason would make the
appointments arbitrary and discriminatory.
A Constitution Bench of Apex Court in
Shankarsan Dash Vs. Union of India,
1991(3) SCC 47 in para 7 observed that
once
authorities
proceed
to
make
appointment, they shall follow select list
and shall make appointment in the order in
which persons are selected and placed in the
select list. The relevant observation are as
under:

"if the vacancies or any of them are
filled up, the State is bound to respect the
comparative merit of the candidates, as
reflected at the recruitment test, and no
discrimination can be permitted."

7. In the present case, discriminatory
treatment in the hands of appointing
authority was virtually admitted as is
evident from Superintending Engineer's
letter dated 22.3.1999 (Annexure 8 to the
writ petition) yet respondents chose not to
seek any explanation from appointing
authority as to why he made selective
arbitrary appointments ignoring merit list.
Instead of redressing grievance of the
petitioner, the respondents have tried to
defend non appointment of petitioner before
this Court by referring to some subsequent
events like a Government Order dated
5.5.1999, which would have no application
to the facts of this case. The Government
Order restrained future appointment and not
process of appointment which has already
been initiated and completed with certain
abberations. The respondents were under an
obligation to remove those anomalies so as
to put every thing in order but they have
failed to do so. It appears that despite
proven illegality on the part of appointing
authority in making appointments ignoring
merit list, higher authorities had chosen not
to take any action against the said official,
may be for the reason which is not just,
legal and valid but travels in the realm of
malice in law. This is nothing but a facet of
corrupt activities on the part of State
authorities whereby illegal and arbitrary
action of an authority is trying to be
shielded under the cloak of an unfounded
defence, may be with a hope that a similar
shield
would
be
available
to
other
authorities when they would commit such
illegality.

8. It appears that authorities have
chosen to observe principle of mutual back
scratching. It is this attitude on the part of
superior Executive which encourage others
(lower cadre) to indulge into more corrupt
activities.
It
spread
and
encourage
corruption among executive. They work
even if illegally but with a sense of
guaranteed impunity like assurance against
any penal action. A time has come when
illegal action of executive should be viewed
seriously and checked and be penalized
appropriately so as to leave a lesson to
others not to continue or to be encouraged
to make such illegal act in future. The
appointing authority is guilty of making
illegal appointments by ignoring higher
merit of petitioner but, simultaneous
responsibility and accountability on the part
of higher authorities in overlooking this act
of appointing authority and leaving it
unpunished cannot be appreciated but must
be condemned in the strongest words. In
other words, by their conduct, all the
respondents are guilty of abatement and
commitment of an illegal act.

9. Be that as it may, petitioner neither
can be left at the mercy of respondents nor
can be denied complete justice otherwise
1 All] Committee of Management LB B M. Inter College, Lodipur & another V. State of U.P. & others 299
this Court will be failing in its constitutional
obligation of doing justice in all perspective
so as to uphold confidence of the people in
the system of administration of justice and
also to maintain their faith that ultimately
they would get wholesome justice in the
hands of law. The respondents have denied
appointment to petitioner on wholly nonest,
illegal and unfounded reasons despite
having discriminated him in the matter of
appointment and thereby denying his
constitutional right of earning livelihood by
getting employment without any fault on his
part. The petitioner therefore is entitled for a
direction with respect to his appointment
and consequential benefits.

10. In view of the above, this writ
petition is allowed. The respondents are
directed to consider and appoint petitioner
on the post of Seenchpal from the date
persons lower in merit to him were so
appointed with all consequential benefits. It
is made clear that for all purposes
petitioner's appointment shall be from the
date when persons lower in merit to him
were appointed. The petitioner shall also be
entitled to all consequential benefits
including arrears of salary for the entire
period. Since non payment of salary to
petitioner is the outcome of an illegal and
patent discriminatory act on the part of
appointing authority by ignoring merit list
and making appointments of persons lower
in merit, State Exchequer should not be
allowed to be burdened of payment of
salary for the period an incumbent has not
worked and person responsible for such a
situation must be accountable for the same.

11. I, therefore, further direct that
respondent no.1 shall be at liberty to recover
amount of salary which would be paid to
the petitioner in view of his appointment
from the date persons lower in merit were
appointed, i.e. the amount payable to the
petitioner pursuant to this judgment for the
period he actually could not perform any
work, from the officer concerned namely
appointing authority who made illegal
appointments ignoring merit after making
such enquiry as permissible in law.
Proportionate realisation can also be made
from higher authorities who despite of
knowledge failed to take any corrective
measure.

12. The writ petition is accordingly
allowed in the manner and as per the
observations/directions made above.

13. The petitioner shall also be
entitled to cost which I quantify to
Rs.5,000/-.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 11760 of 2011

Committee of management Lala Babu
Baijal Memorial Inter College, Lodipur,
District Ghaziabad and another

 ...Petitioner
Versus
State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri N.L.Pandey
Sri N.N.Pandey.

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 14 and 16vires
of
G.O.
Imposing
ban
an
appointment of class 4th employee-in
recognizes
institution-governed
by
Board-except from out sourcing-being