# Divya Prakash Mishra & Ors v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 723
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-10
- **Case number:** Writ A No. 9614 of 2018
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/divya-prakash-mishra-ors-v-state-of-u-p-ors-47299
- **Pages:** 14

## Headnote

A. Service Law - Recruitment - U.P.
Intermediate Education Act, 1921- Uttar
Pradesh Subordinate Educational (Trained
Graduates Grade) Service Rules, 1983:
Rule 10- Uttar Pradesh Public Services
(Relaxation
of
the
age
limits
for
recruitment) Rules, 1992- Rule 3 - Once
the advertisement is issued and the
candidate
applies,
the
right
of
consideration in terms of Article 16 of the
Constitution of India would arise in favour
of such candidate. The Courts while
affirming the right of employer to cancel
the
recruitment
and
initiating
the
recruitment afresh have recognized a
limited light of age relaxation in certain
circumstances. (Para 22)

Two distinct factual scenarios need to be
carefully examined. The first exigency is where
vacancies have arisen, but recruitment itself has
not been initiated. The second exigency is
where the vacancy arises and recruitment has
also commenced, but for justifiable grounds the
recruitment
exercise
is
cancelled
before
issuance of select list and the recruitment
process is initiated, afresh, as per the amended
policy/rules. (Para 19)

Present case is w.r.t. the second exigency.
Hon'ble Court held that even if previous
724 INDIAN LAW REPORTS ALLAHABAD SERIES
recruitment was cancelled and change of policy
by the State has been affirmed, the applicants
(who applied against vacancies advertised
earlier on 19.12.2016) would be entitled to the
limited protection of applying afresh against
advertisement dated 15.03.2018 and also
protection from the age bar imposed in
accordance with Rule 10 of the Rules of 1983.
(Para 26)

Writ petitions disposed off. (E-3)

Precedent followed:

## Text

_Characters 0–39,935 of 47,484. This is a partial read: ask again with offset=39935 for what follows._

8 All. Divya Prakash Mishra & Ors. Vs. State of U.P. & Ors.
723
excluding relevant material or by taking
into consideration irrelevant/inadmissible
material. The finding may also be said to be
perverse if it is against the weight of
evidence, or if the finding so outrageously
defies logic as to suffer from the vice of
irrationality. If a decision is arrived at on
the basis of no evidence or thoroughly
unreliable evidence and no reasonable
person would act upon it, the order would
be perverse. But if there is some evidence
on record which is acceptable and which
could be relied upon, the conclusions
would not be treated as perverse and the
findings would not be interfered with.
(Refer: S.R. Tewari vs. Union of India
and another10)

22. The principle of law that emanates
from the above noted judgments are that in
the case of misconduct of a bank officer or
employee, including the Corporation, if the
officer/employee is found guilty of any
kind
of
the
financial
irregularities
irrespective of the amount involved, no
punishment less than dismissal/termination
should be passed. Any plea of leniency or
sympathy regarding the quantum of amount
or
nature
of
misconduct
is
totally
misplaced.

23. Having due regard to the facts and
circumstances of the case and material
placed on record, the Court declines to
interfere in the matter.

24. It is clarified that no other point or
ground was pressed.

25. The writ petition being devoid of
merit is, accordingly, dismissed.
----------
(2021)08ILR A723
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 9614 of 2018
connected with other cases

Divya Prakash Mishra & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri
Rakesh
Pande,
Avadhesh
Kumar
Upadhyay, Ms. Vishakha Pandey

Counsel for the Respondents:
C.S.C., Sri Avneesh Tripathi, M.N. Singh

A. Service Law - Recruitment - U.P.
Intermediate Education Act, 1921- Uttar
Pradesh Subordinate Educational (Trained
Graduates Grade) Service Rules, 1983:
Rule 10- Uttar Pradesh Public Services
(Relaxation
of
the
age
limits
for
recruitment) Rules, 1992- Rule 3 - Once
the advertisement is issued and the
candidate
applies,
the
right
of
consideration in terms of Article 16 of the
Constitution of India would arise in favour
of such candidate. The Courts while
affirming the right of employer to cancel
the
recruitment
and
initiating
the
recruitment afresh have recognized a
limited light of age relaxation in certain
circumstances. (Para 22)

Two distinct factual scenarios need to be
carefully examined. The first exigency is where
vacancies have arisen, but recruitment itself has
not been initiated. The second exigency is
where the vacancy arises and recruitment has
also commenced, but for justifiable grounds the
recruitment
exercise
is
cancelled
before
issuance of select list and the recruitment
process is initiated, afresh, as per the amended
policy/rules. (Para 19)

Present case is w.r.t. the second exigency.
Hon'ble Court held that even if previous
724 INDIAN LAW REPORTS ALLAHABAD SERIES
recruitment was cancelled and change of policy
by the State has been affirmed, the applicants
(who applied against vacancies advertised
earlier on 19.12.2016) would be entitled to the
limited protection of applying afresh against
advertisement dated 15.03.2018 and also
protection from the age bar imposed in
accordance with Rule 10 of the Rules of 1983.
(Para 26)

Writ petitions disposed off. (E-3)

Precedent followed:

1. Himanshu Shukla & anr. Vs St. of U.P. & ors.,
Writ Petition No. 48664 of 2017, decided on
13.04.2018 (Para 10)

2. St. of Andhra Pradesh & ors. Vs D. Dastagiri
& ors., (2003) 5 SCC 373 (Para 13)

3. St. of M.P. & ors. Vs Sanjay Kumar Pathak &
ors., (2008) 1 SCC 456 (Para 15)

4. Shri Prakash Srivastava & ors. Vs St. of U.P.
& anr., Writ Petition No. 65848 of 2010, decided
on 25.10.2013 (Para 16)

5. Sanjay Agarwal Vs St. of U.P. & ors., 2007 (6)
ADJ 272 (Para 18)

6. Sanjay Kumar Pathak Vs St. of U.P. & ors.,
Writ Petition No. 65189 of 2006, decided on
25.05.2007 (Para 21)

7. Ramjit Singh Kardam & ors. Vs Sanjeev
Kumar & ors., 2020 AIR (SC) 2060 (Para 24)

Precedent distinguished:

1. Sunil Dutt Tripathi Vs St. of U.P. & 3 ors.,
Writ Petition No. 8916 of 2018 (Para 7)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This bunch of writ petitions raise
common question of law and fact and,
therefore, are being disposed of by this
common judgment. Writ Petition No. 9614
(Divya Prakash Mishra and 32 others Vs.
State of U.P. and 3 others) is taken as the
leading case.

2. All the writ petitioners have
applied for appointment to the post of
Assistant
Teachers
(L.T.
Grade)
in
Secondary Schools run by State of U.P.
which are recognized under the U.P.
Intermediate
Education
Act,
1921.
Appointments to the posts are governed by
the Uttar Pradesh Subordinate Educational
(Trained Graduates Grade) Service Rules,
1983 (hereinafter referred to as the 'Rules
of 1983'). These rules have also been
amended from time to time, reference to
some of which are necessary.

3.

On
28.2.2014,
vide
Third
Amendment Rules introduced in the Rules
of 1983, the weightage given hitherto to
Post Graduate Qualification was done away
with. The process of recruitment was
thereafter initiated on 22.7.2014 for filling
up 6645 posts of Assistant Teachers (L.T.
Grade) in Government Secondary Schools.
This recruitment process apparently faced
multiple difficulties and only part of the
vacancies could be filled against the
advertised 6645 vacancies. Considering the
difficulties
faced
in
undertaking
recruitment, the State introduced Fourth
Amendment Rules on 19.10.2016 and the
Regional Cadre for the service was
substituted
with
State
Cadre.
After
including leftover vacancies, a fresh
advertisement came to be issued on
19.12.2016 inviting applications to fill up
5342 vacancies of Assistant Teachers (L.T.
Grade) in Government Secondary Schools.

4. All the petitioners in the present
bunch of writ petitions were eligible for the
post and consequently applied online as per
the advertisement dated 19.12.2016 by
deposing necessary fee etc. Rule 10 of the
8 All. Divya Prakash Mishra & Ors. Vs. State of U.P. & Ors.
725
Rules of 1983 required an applicant to be
above 21 years of age as on 1.7.2016, but
below the age of 40 years on that day. This
recruitment,
however,
could
not
be
concluded apparently due to change in the
recruitment policy and a decision was taken
to
discontinue
the
recruitment.
The
advertisement was cancelled. The Rules of
1983 were amended yet again vide Fifth
Amendment Rules, 2017 as per which the
appointments were to be made through the
U.P. Public
Service
Commission
by
holding a written examination. A fresh
advertisement came to be issued on 15th
March, 2018 advertising 10768 posts of
Assistant
Teachers
(L.T.
Grade)
in
Government Secondary Schools. These
posts apparently included 5342 vacancies
advertised earlier on 19.12.2016 against
which the petitioners had applied.

5. Petitioners, who were eligible and
had already applied against the previous
Advertisement, dated 19.12.2016, however,
became
overage
by
the
time
fresh
Advertisement was published on 15.3.2018.
It is at this stage that the petitioners
approached this Court by filing the present
writ petition. It was contended that vacancy
on the post of Assistant Teacher (L.T.
Grade) had not only arisen when petitioners
were eligible in terms of age but were also
advertised
and,
therefore,
petitioners
acquired right to be considered for
appointment
against
such
advertised
vacancy and such right could not be
defeated in the manner as has been done by
the State. The writ petition was entertained
and following interim protection was
granted in the leading case on 11.4.2018:-

"Thirty
three
petitioners
are
before this Court in the present petition
contending that they had applied pursuant
to advertisement issued in December, 2016
for recruitment to the post in question and
that they possessed the requisite eligibility
in terms of the advertisement as well as the
Rules then enforced. The State Government
has cancelled the recruitment process
initiated in 2016. A fresh process is now
initiated, in which the petitioners are not
eligible as they have crossed the maximum
age of 40 years.

Learned
counsel
for
the
petitioners places reliance upon Rule 10 of
the Rules of 1983 in order to contend that
the required age warranted in terms of Rule
was above 21 years on the 1st July of the
year of recruitment but below 40 years.
Submission is that petitioners had a right to
be considered for appointment which had
been availed by them. Submission is that
the State by cancelling the process and
thereafter initiating a fresh process cannot
be permitted to take away the petitioner's
right to be considered for appointment
against the vacancy advertised in the year
2016.

Matter was deferred on the
previous occasion so as to permit learned
Standing Counsel to obtain instructions. Sri
P.K. Pandey, learned Additional Chief
Standing
Counsel
has
produced
the
instructions
received
from
the
State
Government, as per which, it would not be
permissible for the petitioners to be
considered for the purposes, once they are
not found eligible in terms of the
advertisement and the Rules.

Submission, in reply, of the
petitioners is that this would result in denial
of opportunity to the petitioners to apply
for the post and would clearly be arbitrary.

Matter requires consideration.

Notice on behalf of respondent
Nos.1, 2 and 3 is accepted by Sri P.K.
Pandey, learned Additional Chief Standing
Counsel whereas Sri Avaneesh Tripathi
appears for respondent no.4.
726 INDIAN LAW REPORTS ALLAHABAD SERIES

All the respondents may file
counter affidavit within three weeks.

Rejoinder affidavit may be filed
within one week, thereafter.

List thereafter.

Considering
the
facts
and
circumstances noticed above, it is provided
as an interim measure that petitioners shall
be permitted to apply for the post in
question and their claim would not be nonsuited merely for the reason that they have
become over age. Their candidature,
however, shall be subject to outcome of
this petition."

6. Similar protection has been granted
to
other
petitioners.
The
petitioners,
consequently, have participated in the
recruitment initiated vide Advertisement
dated 15th March, 2018, but their results
have not been declared on account of
pendency of the present bunch of writ
petitions and the orders passed therein. It is
urged that the writ petitioners who have
secured selection on the strength of their
merit against Advertisement, dated 15th
March, 2018, are entitled to declaration of
their
results
and
consequential
appointment. Upon a specific query made,
learned counsel for the Commission has
produced written instructions from the
Commission as per which 14 petitioners in
this bunch of cases have qualified the exam
and while result has been withheld in
respect of two such candidates, the
remaining 12 petitioners in the bunch of
cases are selected provisionally subject to
the outcome of these cases.

7. A counter affidavit has been filed
on behalf of the State in which it is stated
that the petitioners do not get any right to
age relaxation merely on the strength of
their
previous
application
against
Advertisement, dated 19.12.2016 and the
petitioners
cannot,
therefore,
claim
relaxation in maximum age prescribed in
Rule 10. Reliance is also placed upon a
judgment of this Court in Writ Petition No.
8916 of 2018 (Sunil Dutt Tripathi Vs. State
of U.P. and 3 others). A rejoinder has also
been filed to the counter affidavit of the
respondents. An amendment application
has also been filed seeking correction in the
details of some of the petitioners which has
been allowed by a separate order of the
date.

8. Heard Sri Rakesh Pande, learned
Senior Counsel assisted by Sri Avadhesh
Kumar Upadhyay as well as Ms. Vishakha
Pandey for the petitioners in leading writ
petition, Sri Navin Kumar Sharma, Sri
Chandra Dutt, Sri Manish Kumar Tiwari,
Dinesh Kumar Singh, Sri Saurabh Yadav,
Sri Ashwani Kumar Pathak, Sri Phool
Chandra Yadav, Sri Amresh Kumar Tiwari,
Sri Praval Tripathi, Sri Jyoti Kumar Singh,
Sri A.K. Upadhyay, Sri Shrawan Kumar
Pandey and Sri Ghanshyam Maurya for the
petitioners in the connected writ petitions,
Sri Avneesh Tripathi, learned counsel for
the Public Service Commission and Sri
Vivek Rai, learned Additional Chief
Standing Counsel for the State respondents
and perused the materials brought on
record.

9.

Petitioners
have
essentially
challenged the Advertisement No. A-1/E1/2018, dated 15.03.2018, in so far as it
specifies maximum age of eligibility as 40
years on 1.7.2018 and to permit them to
participate in the selection process initiated
for appointment against 9342 vacancies
advertised earlier on 19.12.2016. It is
contended that petitioners were well within
the zone of eligibility in terms of
Advertisement, dated 19.12.2016 and had
also applied for appointment against such
8 All. Divya Prakash Mishra & Ors. Vs. State of U.P. & Ors.
727
vacancies and since the advertisement,
dated 19.12.2016 has been withdrawn, on
account of change of policy introduced by
the State, therefore, their right to be
considered
against
vacancies
already
notified on 19.12.2016, cannot be taken
away by the State, even if the policy to
discontinue
the
previous
recruitment
initiated on 19.12.2016 and re-advertised
the post on 15.3.2018 is upheld.

10. Recruitment on the post of
Assistant Teacher in L.T. Grade has to be
made in accordance with the Rules of 1983.
These rules have been amended from time
to time. This Court in the case of Himanshu
Shukla and another Vs. State of U.P. and
others, writ petition no. 48664 of 2017,
decided on 13.4.2018 while upholding the
change of policy in recruitment has traced
the amendments, which came to be made in
the Rules of 1983, from time to time. In
order to appreciate the controversy raised,
it would be of help to reproduced the
following passage from the judgment of
this Court in Himanshu Shukla (supra):-

".........The Rules of 1983, as they
originally stood, contemplated a cadre of
Trained Graduate Teachers, both for men
and women at regional level. Posts in the
cadre were to be filled by direct recruitment
and also by promotion through the U.P.
Public Service Commission (hereinafter
referred to as 'the Commission'). The
Commission was to invite applications for
direct
recruitment
and
subject
the
candidates having eligibility in terms of the
rule to interview, and accordingly prepare a
select list. The Rules of 1983 have been
amended from time to time, which have a
material bearing on the controversy raised
in this bunch of writ petitions. As all these
writ petitions involve common questions of
law and fact, and have been heard together,
therefore, are being disposed of by this
common judgment.

2. At the outset, it would be
appropriate to refer to the successive
amendments made in the Rules of 1983.
First Amendment to the Rules of 1983 was
made
vide
notification
dated
6th
November, 1992. Rule 5 of the 1983 Rules,
which provided for direct recruitment to be
made in the cadre through the Public
Service Commission, was substituted with
direct recruitment to be made by selection
committee, as specified. For promotions
also the Commission seized to have any
role. Other amendments were also made
with which the Court is not concerned as of
now. Second Amendment in the Rules of
1983 was made vide notification dated 8th
September,
2010.
The
qualifications
prescribed for different posts in the cadre
was amended. Rule 15, which provided for
making of application to the Regional
Deputy
Director
of
Education,
was
amended to mean Regional Joint Director
of
Education.
Recruitment
procedure
provided under the Second Amendment
introduced in the Rules of 1983 remained
intact.

3. Yet another notification was
issued
on
28.2.2014,
incorporating
amendment in the Rules of 1983 by way of
Uttar Pradesh Subordinate Educational
(Trained Graduates Grade) Service (Third
Amendment) Rules, 2014. The maximum
age for recruitment to the posts as provided
in Rule 10 was increased from 32 to 40.
Criteria for computation of quality point
marks for selection by direct recruitment
was altered. The weightage allocated for
Postgraduate Degree was omitted. Rule 15
was also amended, which dealt with the
manner of preparation of select list for
selecting candidates by direct recruitment.
With the changes brought about by the
Third Amendment, recruitment to the cadre
728 INDIAN LAW REPORTS ALLAHABAD SERIES
was to be made region-wise, with the
appointing authority for direct recruitment
being
Regional
Deputy
Director
of
Education for the men branch and Regional
Inspectress of Girl's Schools in respect of
women branch.

4. Rules of 1983 were yet again
amended vide notification dated 19th
October,
2016
pursuant
to
Fourth
Amendment Rules of 2016. Rule 3 was
amended and the appointing authority for
both men branch and women branch was
substituted as Additional Director of
Education, Secondary, U.P. Allahabad. The
regional cadre both for men and women
branches, as it stood earlier, was substituted
with a State cadre for men and women
branches. The qualification for various
posts were also prescribed. Rule 14, which
provided for determination of vacancies to
be filled during the course of year of
recruitment, was required to be determined
subjectwise for men and women branches.
The procedure for direct recruitment was
also modified. The selection committee
also underwent a change.

5. The Rules of 1983 lastly came
to be amended on 23rd August, 2017 by
way of Fifth Amendment Rules of 2017.
Sub-rule 3(c) was added to Rule 3, which
defined 'Commission' as the 'U.P. Public
Service Commission, Allahabad'. Rule 5
was also amended so as to provide for
appointment by direct recruitment through
the Public Service Commission. Rule 3(b)
was omitted. Rule 10 was also amended
and the maximum age for recruitment to
the post covered under the Rules of 1983
was specified as 40 years. The procedure
contemplated under Rule 15 was changed
so as to ensure direct recruitment in the
cadre to be made by the U.P. Public
Service
Commission.
Such
direct
recruitment by the Commission is to be
made on the basis of a written test and the
consequential merit list prepared on the
basis of the same. Such merit list is to be
sent by the Commission to the appointing
authority, who in turn was to make
appointments therefrom. However, the
appointing authority remained the same i.e.
the Additional Director of Education."

11. Petitioners in Himanshu Shukla
(supra)
were
claiming
consideration
pursuant to advertisements issued in the
year 2011, 2014 and 2016, which had since
been discontinued due to change of policy
as well as consequential 5th Amendment in
the Rules of 1983, notified on 23rd August,
2017.
It
was
urged
that
vacancies
advertised earlier had to be filled in
accordance with the rules existing then and
that vacancies caused previously are not
open to be filled in accordance with 5th
Amendment Rules. So far as the legal
proposition urged was concerned, the Court
proceeded to observe as under in paragraph
44 of the judgment in Himanshu Shukla
(supra):-

"44. There is no dispute on the
legal proposition canvassed on behalf of
petitioners that amendment introduced in
the Rules of recruitment cannot be given
retrospective effect, unless the rules itself
specifically permits it. The Principle that
once the Game has commenced, the rules
of Game cannot be changed in between is
too well settled to be questioned. The
question that arises on the facts of the case
is as to whether State is justified in
evolving a new policy for recruitment;
amending the rules; cancelling the on-going
recruitment process and undertaking the
recruitment afresh as per the amended
rules?"

12. However, on the facts of the case
the Court found that change of policy
8 All. Divya Prakash Mishra & Ors. Vs. State of U.P. & Ors.
729
introduced by the State was based on a
justifiable reason. Stand of the State
Government was scrutinized by the Court
to observe as under in paragraphs 45 to 50:-

"45. Before proceeding further, it
would be appropriate to notice the concern
express by the Additional Chief Secretary
in his affidavit before this Court in para 10,
which is extracted above. The recruitment
as per Rules of 1983 were based upon
quality point marks calculated on the basis
of a candidate's performance in High
School,
Intermediate,
Graduation
and
Training. Schedule to Rule 15(2) lays down
the criteria for determining the quality
point marks, which reads as under:-

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 3

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10

 5

46.
The
post
graduation
qualification has been done away with in
the Fourth Amendment to the Rules of
1983. Marks secured by a candidate in the
High School and Intermediate, therefore,
assumes significance. The Additional Chief
Secretary has stated in Para 10 before this
Court that questions are being raised about
High
School
and
Intermediate
examinations, as such it was held proper to
select candidate on the basis of written
examination to be held by the Commission
in place of academic performance and
training marks. The Court also cannot shut
its eye to what is widely reported in
newspapers
about
High
School
and
Intermediate Examinations conducted by
the U.P. Board. In the High School and
Intermediate Board Examination of the
year, it was widely reported that on account
of stringent checks placed against copying
in Board Examinations, more than 11 lacs
students have left the exam. This is a
serious matter. Although, it would not be
appropriate to express any doubts on the
credibility of marks awarded by the Board,
but the concern express by the Additional
Chief Secretary in para 10 cannot be said to
be unfounded. If the State, therefore,
decides to have the merits of candidate
examined by way of written examination
conducted
by
U.P.
Public
Service
Commission, then such a policy decision
cannot
be
said
to
be
irrational,
discriminatory or arbitrary.

47. Learned counsel for the
petitioners,
during
the
course
of
submission, have also pointed out recent
incidents questioning the credibility of
recruitment undertaken by the Public
Service Commission also. No doubt this
Court had to intervene to maintain
transparency in the matter of holding of
examination by the Commission but for
such reasons, the institutional integrity and
competence of the Commission itself
cannot be put to question. It remains a
constitutional body and the constitutional
faith reposed in its functioning in the matter
730 INDIAN LAW REPORTS ALLAHABAD SERIES
of undertaking recruitment cannot be
doubted, or easily questioned by isolated
acts of abrasion.

48. Although recruitment based
on quality point marks has been held to be
a valid criteria for recruitment, but it
ultimately remains a matter of policy for
the State to choose as to what would be the
appropriate procedure to be followed for
the purpose. The decision of State to have
the recruitment made based upon written
test conducted by the Commission cannot
be said to be arbitrary.

49. The recruitment initiated
pursuant to advertisement dated 19th
December, 2016 has not culminated in
creation of any vested right in the
petitioners. They are mere applicants
pursuant to advertisement and have no right
to the post. The State for bona fide reasons
can always take a decision not to proceed
further
pursuant
to
the
previous
advertisement, and to have the recruitment
exercise undertaken afresh, after amending
the rules.

50. Law relating to retrospective
application of rules, as have been cited
before this Court, will have no applicability
in the present case. To cancel the
recruitment and to undertake it afresh, on
the basis of rules amended is not the same
as retrospectively applying the recruitment
rules. A fresh game starts here, and it can
be played on the basis of rules already
changed before its commencement."

13. For arriving at the above view, the
Court relied upon the Supreme Court in
State of Andhra Pradesh and others Vs. D.
Dastagiri and others, (2003) 5 SCC 373,
wherein the Supreme Court observed as
under in paragraphs 4 & 5:-

"4. In the counter affidavit filed
on behalf of the respondents in Civil
Appeal No. 915/2000, in paragraph 16 it is
stated that the process of selection was
cancelled at the last stage, i.e., before
publishing the list of selected candidates on
the sole ground that the State Government
wanted
to
introduce
prohibitor
and
obviously the Government felt that there
was no need of Excise Constables during
imposition of prohibition in the State.
There is serious dispute as to the
completion of selection process. According
to the appellants, the selection process was
not complete. No record has been placed
before us to show that the selection process
was complete, but, it is not disputed that
the select list was not published. In
paragraph 16 of the counter affidavit,
referred above, the respondents themselves
had admitted that the selection process was
cancelled at the last stage. In the absence of
publication of select list, we are inclined to
think that the selection process was not
complete. Be that as it may, even if the
selection
process
was
complete
and
assuming that only select list was remained
to be published, that does not advance the
case of the respondents for the simple
reason that even the candidates who are
selected and whose names find place in the
select list, do not get vested right to claim
appointment based on the select list. It was
open to the State Government to take a
policy decision either to have prohibition or
not to have prohibition in the State.
Certainly, the Government had right to take
a policy decision. If pursuant to a policy
decision taken to impose prohibition in the
State there was no requirement for the
recruitment of Constables in the Excise
Department, nobody can insist that they
must appoint the candidates as Excise
Constables. It is not the case of the
respondent that there was any malafide on
the part of the appellants in refusing the
appointment to the respondents after the
8 All. Divya Prakash Mishra & Ors. Vs. State of U.P. & Ors.
731
selection process was complete. The only
claim was that the action of the appellants,
in not appointing the respondents as Excise
Constables, was arbitrary. In the light of the
facts that we have stated above, when it
was open to the Government to take a
policy decision, we fail to understand as to
how the respondents can dub the action of
the Government as arbitrary, particularly,
when they did not have any right as such to
claim appointments. In the absence of
selection and publication of select list, mere
concession or submission made by the
learned Government Pleader on behalf of
the appellant-State cannot improve the case
of the respondents. Similarly, such a
submission cannot confer right on the
respondents, which they otherwise did not
have.

5. Under these circumstances, we
find it difficult to sustain the impugned
judgment and order. However, having
regard
to
the
peculiar
facts
and
circumstances of the case and that the
respondents had the benefit of the order of
the High Court, we think it is just and
appropriate that as and when any fresh
selection takes place to the post of Excise
Constables, the respondents may apply for
regular recruitment. In that event, age-bar
will not be put against them put, they shall
satisfy other eligibility conditions and
requirements, including qualification."

(Emphasis supplied)

14. The judgment in State of Andhra
Pradesh and others Vs. D. Dastagiri and
others (supra) has been specifically relied
upon in paragraph 51 of the judgment in
Himanshu Shukla. In paragraph 5, the
Supreme Court while affirming the change
of policy and consequential decision to
hold
fresh
recruitment
proceedings
protected the candidates against age bar
who had applied previously and would
have become ineligible due to age. In the
facts of the present case also similar
exigency
arises,
inasmuch
as,
the
petitioners had participated in the previous
recruitment
which
has
since
been
discontinued and have become over age by
the time new recruitment as per the
amended policy/rule is resorted to.

15. In State of M.P. and others Vs.
Sanjay Kumar Pathak and others, (2008) 1
SCC 456 also the Supreme Court examined
a similar situation to hold that mere
selection creates no indefeasible right to
claim appointment and it is always open for
the State not to fill up all or any number of
vacancy with the only caveat that State
action
should
not
be
arbitrary
or
discriminatory
after
analysing
the
judgments on the point and upholding the
cancellation of selection the Court granted
similar relief of age relaxation vide para 27
which is reproduced hereinafter:-

"27.
For
the
reasons
aforementioned, the impugned judgment
cannot be sustained which is set aside
accordingly. However, keeping in view the
peculiar facts and circumstances of the
case, we direct that the respondents shall be
entitled to relaxation of age in the event
they intend to take part in the next selection
process. The State is also directed to pay a
sum of Rs 10,000 each to the respondents
concerned. The appeals are allowed. No
costs."

16. Respondents, however, rely upon
a judgment of this Court in Sunil Dutt
Tripathi (supra), in which the same
advertisement was questioned on the
ground
that
candidates
who
had
participated earlier would become over age.
The writ petition has been dismissed
relying upon a previous judgment of this
732 INDIAN LAW REPORTS ALLAHABAD SERIES
Court in Shri Prakash Srivastava and others
Vs. State of U.P. and another, writ petition
no. 65848 of 2010, decided on 25.10.2013.

17. In Shri Prakash Srivastava (supra)
the writ petitioners had become over age by
the time advertisement was issued in the year
2018. It was contended that no recruitment
was held in last three years despite
availability
of
vacancy
rendering
the
petitioners ineligible on account of being over
age in terms of the advertisement. Similarly
for the second set of petitioners also they had
become over age on 1.7.2013 and their
grievance was that vacancies occurring in the
year 2010, 2011 and 2012 were not
advertised. Argument before the Court was
that the applicants cannot be made to suffer
on account of failure of the recruitment
agency to undertake recruitment. The Court
relied upon the provisions of Uttar Pradesh
Public Services (Relaxation of the age limits
for recruitment) Rules, 1992 to observe as
under in paragraphs 28, 34 and 36 of the
judgment which are reproduced hereinafter:-

"28.
However,
the
above
consideration may not strictly apply to the
present case inasmuch as, the Governor in
exercise of power under proviso to Article
309 of Constitution has published and
promulgated another set of Rules, i.e., Uttar
Pradesh Public Services (Relaxation of the
age limits for recruitment) Rules 1992
(hereinafter referred to "Rules 1992"),
published vide notification dated 23rd July
1992. It is a small set of Rules having only
three provisions. Rule 2 contains certain
definitions. I propose to quote Rules 1 and
3 thereof hereunder:

"1. (1) These rules may be called
the
Uttar
Pradesh
Public
Services
(Relaxation
of
the
age
limits
for
recruitment) Rules, 1992.

(2) They shall come into force at
once.

(3) They shall apply to all civil
services and posts under the rule making
power of the Governor under proviso to
Article 309 of the constitution."

"3. Notwithstanding anything to
the contrary in any rule-regulating the
maximum age of recruitment to a service or
post in connection with the affairs of the
State relaxation in the maximum age-limit
may be granted by the Governor in favour
of a candidate or a class of candidates.

Provided that in the case in which
recruitment
is
made
through
the
Commission, that body shall be consulted
before the relaxation is granted."

34. It is in these circumstances, I
am clearly of the view that in the peculiar
facts and circumstances of these cases, it
would be in the fitness of things that the
Governor ought to have examined the
question of granting relaxation in the
maximum age limit to the extent of non
holding of recruitment for vacancies
occurring during the concerned year(s)
when no recruitment held and, and, thereby
rendering certain candidates overage and
ineligible in the matter of age. By
exercising its power and considering entire
facts and circumstances in accordance with
law, whether relaxation is granted or not is
a different thing, but at least the matter
should have been examined by him. Since
recruitment in the present case has to be
made through UPPSC, such exercise of
power shall be done by the Governor in
consultation with UPPSC.

36. Resultantly, all these writ
petitions are disposed of by directing the
competent authority under Rule 3 of 1992
Rules to consider whether there should be
relaxation in the matter of maximum age to
such candidates who were otherwise
eligible on 1st July of the year but due to
8 All. Divya Prakash Mishra & Ors. Vs. State of U.P. & Ors.
733
non-advertisement
of
vacancies/non
recruitment, they could not apply and
became overage. The aforesaid decision
shall be taken in consultation with the
UPPSC as required by proviso to Rule 3 of
1992 Rules. Such exercise shall be
completed expeditiously, preferably within
two months from the date of presentation of
a certified copy of this order before the
competent authority."

18. In Sunil Dutt Tripathi (supra), this
Court also took note of the observations
made by the Division Bench of this Court
in paragraphs 41 & 42 of the judgment in
Sanjay Agarwal Vs. State of U.P. and
others, 2007 (6) ADJ 272, paragraphs 41 &
42 to hold as under in paragraph 12:-

"12. The Court has proceeded to
examine the record in question and is of the
opinion that a candidate cannot compel the
employer to fill up a vacancy, as and when
it occurred, and/or complain that he has
some kind of vested right for process of
recruitment, having not conducted with
respect to the vacancy in the year when it
was available and he was also eligible in
the matter of age but become overage due
to inaction on the part of respondents in
initiation of recruitment process or non
holding of any recruitment by recruiting
agency. The right of consideration would
come in picture only when the vacancy is
put for recruitment and the advertisement is
published. The right of consideration
commences when the recruitment process
starts. The incumbent would obviously has
right of consideration in accordance with
the provisions as they are applicable when
the
advertisement
is
made
and
in
accordance with conditions provided in the
advertisement read with relevant rules. For
the purpose of direct recruitment no person
in open market has a right of consideration
unless and until the vacancy is offered to be
filled in accordance with law by the
competent authority. As soon as a post fell
vacant, it would not give or confer any
right upon an individual, who fulfil other
qualifications,
to
claim
right
of
consideration for employment against such
post for the reason that the employer can
always keep a post unfilled. A perspective
candidate cannot compel the employer to
consider him for employment even though
the post has not been made open for
recruitment and selection. In Sanjay
Kumar Pathak's case (supra) the Full
Bench of this Court has held that unless
permitted by the Rules, no relaxation can
be claimed."

19. Two distinct factual scenarios are
noticed in the aforesaid judgments, which
needs to be carefully examined. The first
exigency is where vacancies have arisen,
but recruitment itself has not been initiated.
The second exigency is where the vacancy
arises
and
recruitment
has
also
commenced, but for justifiable grounds the
recruitment exercise is cancelled before
issuance of select list and the recruitment
process is initiated, afresh, as per the
amended policy/rules.

20. The judgments that have been
relied upon in Sunil Dutt Tripathi (supra)
were essentially dealing with the first
exigency, inasmuch as, though vacancy had
arisen but the recruitment itself was not
undertaken. No advertisement was issued.
It was in such exigency that the question
arose about the nature of right that would
accrue to a prospective candidate who
becomes over age on account of non
holding of recruitment for several years. It
was in that context that this Court in Shri
Prakash Srivastava (supra) observed as
under in paragraph 25:-
734 INDIAN LAW REPORTS ALLAHABAD SERIES

"25. In the absence of any
provision whatsoever, I have no manner of
doubt that a candidate cannot compel the
employer to fill up a vacancy, as and when
it occurred, and/or complain that he has
some kind of vested right for process of
recruitment, having not conducted with
respect to the vacancy in the year when it
was available and he was also eligible in
the matter of age but become overage due
to inaction on the part of respondents in
initiation of recruitment process or non
holding of any recruitment by recruiting
agency. Similar arguments have been
discarded in Sanjay Agarwal Vs. State of
U.P.
and
others
2007(6)
ADJ
272
(DB)=2007(5) ALJ 328(DB). The Division
Bench held:

"(40) Moreover, rule 12 provides
for age which is independent and is not
subject to other rules. Therefore, Rule 12
would apply on its own irrespective of
whether determination of vacancies took
place at regular intervals as envisaged in
Rule 8 or not. Any other view would make
Rule 12 subordinate to Rule 8 though the
rule framing authority has not said so and,
therefore, any attempt by this Court to relax
rigour of Rule 12 with reference to Rule 8
would amount to legislation which this
Court is neither supposed to do nor should
do. Learned counsel for the petitioners
could not show any provision whereunder
Rule 12 could have been relaxed by the
authorities. In the absence of any provision
for relaxation, by judicial interpretation or
by judicial exercise such relaxation cannot
be granted. In Food Corporation of India
Vs. Bhanu Lodh (2005) 3 SCC 618 the
Apex Court held that rigor of statutory
provisions cannot be relaxed giving a total
go-bye to the statute.

(41) Further a person if fulfils
requisite
educational
and
other
qualifications
does
not
possess
a
fundamental or legal right to be considered
for appointment against any post or
vacancy as soon as it is available
irrespective of whether the employer has
decided to fill in the vacancy or not. The
right of consideration does not emanate or
flow from existence of the vacancy but
commences only when the employer
decides to fill in the vacancy and the
process of recruitment commences when
the notification or advertisement of the
vacancy is issued. So long as the vacancy is
not made available for recruitment, no
person can claim that he has a right of
consideration since the vacancy exists and
therefore, he must be considered. We have
not been confronted with any statutory
provision or authority in support of this
contention that the petitioners have a right
of consideration on mere existence of
vacancy.