# Dr. Arti Sanghi & Ors v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 1016
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-26
- **Case number:** Writ A No. 3197 of 2022
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-arti-sanghi-ors-v-state-of-u-p-ors-49906
- **Pages:** 7

## Headnote

C.S.C.,
Raj
Kumar
Upadhyaya
(R.K.
Upadhyaya), Ravi Shanker Tewari

Service Law- Constitution of India, 1950 -
Article 226 -The Uttar Pradesh Medical
Teachers'
Service
Rules,
1990-Rule
4,5,6,20-Writ
petition
challenging
the
Advertisement
issued
by
U.P.P.S.C
Prayagraj, for filling up 130 posts of
Lecturer in nine Government Homeopathic
Medical
Colleges
in
twelve
different
subjects/disciplines
alleging
it
to
be
against the policy of reservation- It is for
the employer to define the cadre taking
into consideration the nature of serviceUnder the Statutory Rules, 1990 all the
posts of Lecturers in all nine Government
Homeopathic Medical Colleges constitute
one cadre- The reservation has been
provided in the requisition on vacancies
subject wise/discipline wise- Definition of
cadre in the Rules, 1990 does not violate
any constitutional mandate, when all the
colleges are under the unified supervision
and control of the St. Government and the
posts are transferable from one college to
another. (Para 2, 3, 15, 22)

Petition dismissed. (E-15)

List of Cases cited:

## Text

1016 INDIAN LAW REPORTS ALLAHABAD SERIES
10. The court has noted that by
virtue of the interim order dated 23.1.2012,
operation of impugned orders contained in
Annexures 1 and 4 was stayed. Therefore,
the petition is disposed of with a direction
to the respondents to allow the petitioner to
work and he shall be paid basic salary with
other allowances as is being paid to him, at
present. However, it shall be subject to
final outcome of trial.
----------
(2023) 4 ILRA 1016
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.04.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ A No. 3197 of 2022

Dr. Arti Sanghi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Prafulla Tiwari, Lalta Prasad Misra

Counsel for the Respondents:
C.S.C.,
Raj
Kumar
Upadhyaya
(R.K.
Upadhyaya), Ravi Shanker Tewari

Service Law- Constitution of India, 1950 -
Article 226 -The Uttar Pradesh Medical
Teachers'
Service
Rules,
1990-Rule
4,5,6,20-Writ
petition
challenging
the
Advertisement
issued
by
U.P.P.S.C
Prayagraj, for filling up 130 posts of
Lecturer in nine Government Homeopathic
Medical
Colleges
in
twelve
different
subjects/disciplines
alleging
it
to
be
against the policy of reservation- It is for
the employer to define the cadre taking
into consideration the nature of serviceUnder the Statutory Rules, 1990 all the
posts of Lecturers in all nine Government
Homeopathic Medical Colleges constitute
one cadre- The reservation has been
provided in the requisition on vacancies
subject wise/discipline wise- Definition of
cadre in the Rules, 1990 does not violate
any constitutional mandate, when all the
colleges are under the unified supervision
and control of the St. Government and the
posts are transferable from one college to
another. (Para 2, 3, 15, 22)

Petition dismissed. (E-15)

List of Cases cited:

1. Vivekanand Tiwari Vs U.O.I. 2017 SCC Online
All 2729

2. U.O.I. Vs Pushpa Rani & ors. (2008) 9 SCC
242

3. Vijay Prakash Bharti Vs U.O.I. & ors. (2019)
12 SCC 410

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. Heard Shri Lalta Prasad Mishra,
Advocate assisted by Shri Praful Tiwari,
learned Counsel for the petitioner, Shri
Sandeep Sharma, learned Standing Counsel
for the State-respondents and Shri Ravi
Shanker Tiwari, learned Counsel for Uttar
Pradesh Public Service Commission.

2. The present petition under 226
of the Constitution of India has been filed,
whereby the Advertisement No.02/2020-21
dated 24.09.2020 issued by Uttar Pradesh
Public Service Commission (hereinafter
referred to as "U.P.P.S.C.") Prayagraj, for
filling up 130 posts of Lecturer in nine
Government
Homeopathic
Medical
Colleges
in
twelve
different
subjects/disciplines has been sought to be
quashed.

3 . The controversy involved in this
petition pertains to narrow compass i.e.
whether the reservation is to be applied
4 All. Dr. Arti Sanghi & Ors. Vs. State of U.P. & Ors.
1017
department wise or subjectwise
treating it as a unit, and whether clubbing
of the posts of Lecturers of
each
subject/discipline
of
twelve
subjects/disciplines sanctioned in nine
Government
Homeopathic
Medical
Colleges of Uttar Pradesh is against the
statutory prescription and constitutional
mandate or whether a college has to be
taken as a unit for reservation or all the
colleges cumulatively constitute a unit for
application of policy of reservation.

4. The Uttar Pradesh Medical
Teachers' Service Rules, 1990 (hereinafter
referred to as "Rules, 1990") which
regulate recruitment and conditions of
services of teachers appointed in the
Government
Homeopathic
Medical
Colleges. Teachers' provide that service is a
State service comprising of Group-A and
Group-B posts. Rule 4 of the Rules, 1990
provides cadre of service, which would
read as under:-

 " 4. Cadre of Service-(1) The
strength of the service and of each category
of posts therein shall be such as may be
determined by the Government from time to
time.

 (2) The strength of the service and
of each category of posts therein shall, until
orders varyfing the same are passed under
sub-rule (1), be as in the Appendix- ''A' :

 (a) Provided that the appointing
authority may leave unfilled or the Governor
may hold in abeyance any vacant post
without thereby entitling any person to
compensation;

 (b) The Governor may create
such additional permanent or temporary
posts as he may consider proper. "
5. The Appendix-A of the Rules,
1990 would reveal that it is a single cadre
post at state level and the strength of different
posts has been mentioned. There is one
permanent post and nine temporary posts of
Principal and the cadre of Professor consists
of two permanent posts, cadre of Reader is of
two temporary posts whereas, cadre of
Lecturer is of seven permanent posts and one
hundred sixteen temporary posts i.e. total 123
posts. The source of recruitment to various
category posts in the service is provided in
Rule 5 of the Rules, 1990, which would read
as under:-

 " 5. Source of recruitmentRecruitment to the various categories of
posts in the Service shall be made from
the following sources:

 (a)
Principal
by
direct
recruitment through the commission.

 (b) Professor-(i) Fifty per cent by
direct recruitment through the Commission.

 (ii) Fifty per cent by promotion,
through the Commission, from amongst
substantively appointed Readers who have
at-least ten years, of teaching experience
including three year as Reader in the
subject concerned.

 (c) Reader-(i) Fifty per cent by
direct recruitment through the Commission:

 (ii) Fifty per cent by promotion
through the Commission, from amongst
substantively appointed Lecturers who
have teaching experience of seven years
including four years as Lecturers in the
subject concerned.

 (d)
Lecturer-By
direct
recruitment through the Commission."
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Rule 6 of the Rules, 1990
provides for reservation for the candidates
belonging to the Schedule Castes/Schedule
Tribes/Other
Backward
Categories,
whereas, Rule 20 of the Rules, 1990
provides for provision for seniority of
persons in any category of post is to be
determined from the date of order of
substantive appointment. There is no
provision of collegewise seniority in the
said Rules. The post of Lecturer is
transferrable from one college to another.

7. National Homeopathic Council
of India has framed the regulation which
provides
qualifications
and
eligibility
conditions for different posts, which is
appended as Appendix-2 to the Rules,
1990.

8. The State Government has sent
a requisition for filling up the vacant post
of Lecturer not as per collegewise but as
per the cadre strength provided in the
Rules, 1990, in each subject/discipline as
per
sanctioned
strength
of
the
subject/discipline. The requisition would
suggest that for every subject/discipline,
total
posts
vacant
in
all
the
nine
Government
Homeopathic
Medical
Colleges have been clubbed and the
reservation has been provided in respect of
each
of
twelve
different
subjects/disciplines, and the reservation has
not been provided on the total posts, which
are
to
be
filled
up
but
in
each
subjects/disciplines but the reservation has
been provided on against the vacancies of
each subject/discipline, clubbing all the
vacant posts of all the nine Government
Homeopathic Medical Colleges. As such,
details
of
the
posts
in
each
subject/discipline in the requisition sent by
the State Government for filling up the
vacant posts and reservation has been
provided in each subject by the State
Government. The requisition has been
annexed with counter affidavit filed on
behalf
of
the
State-respondents
as
Annexure No.CA-2.

9. Shri Lalta Prasad Mishra,
learned Counsel for the petitioner has
submitted that each medical college and
each
department
in
the
Government
Medical College is a unit in itself and there
is
no
common
cadre
of
Lecturer
subjectwise, and, therefore, by combining
vacant posts in each subject/discipline in all
nine Government Homeopathic Medical
Colleges is in violation of the statutory
prescription and the judgment of this Court
in the case of Vivekanand Tiwari vs.
Union of India reported in 2017 SCC
Online All 2729, which has been upheld by
the Supreme Court vide order dated
22.01.2019
in
S.L.P
(Civil)
Diary
No.14318/2018.

10. It has been further submitted
that existence of common cadre of posts,
and five or more posts in a cadre/sub cadre
is a sine qua non applying for caste
reservation in the service. However, in the
present case total number of twelve
subjects/disciplines are taught in each of
the
nine
Government
Homeopathic
Medical Colleges, and there are at the most
three
sanctioned
posts
in
each
subject/discipline in a college, thereby, the
caste reservation would not be applicable
as subject/discipline of the particular
college has to be treated as a unit for
applying the reservation treating the said
subject/discipline of the said college as a
unit.

11. On the other hand, Shri
Sandeep Sharma, learned Standing Counsel
for the State-respondents and Shri Ravi
4 All. Dr. Arti Sanghi & Ors. Vs. State of U.P. & Ors.
1019
Shanker Tiwari, learned Counsel for the
U.P.P.S.C have laid emphasis on the Rules,
1990 and have submitted that even under
the said rules, cadre of Lecturers has been
defined, which would mean that the cadre
of post of Lecturer consist of all the posts
in nine Government Homeopathic Medical
Colleges and strength of the cadre is 123
posts a per the Appendix-A to the Rules,
1990. They have further, submitted that
when the cadre is one and the State has
applied reservation subjectwise, it is totally
in
accordance
with
the
statutory
prescription and the judgment of the this
Court in the case of Vivekanand Tiwari
(supra). An individual college cannot be
taken as a unit for applying the provisions
of reservation. The post of Lecturer is
transferrable from one college to another
and, therefore, in each subject/discipline
the reservation has been applied which is
perfectly in accordance with the Rules,
1990 and law laid down by the Supreme
Court and this Court.

12.

I
have
considered
the
submissions of Shri Lalta Prasad Mishra,
Advocate assisted by Shri Praful Tiwari,
learned Counsel for the petitioner, Shri
Sandeep Sharma, learned Standing Counsel
for the State-respondents and Shri Ravi
Shanker Tiwari, learned Counsel for
U.P.P.S.C.

13. A cadre means the strength of
service or a part of service. The Supreme
Court in the case of Union of India vs.
Pushpa Rani and Others reported in (2008)
9 SCC 242 has held that matters relating to
creation and abolition of posts, formation and
structuring/restructuring
of
cadres,
prescribing the source/mode of recruitment
and qualifications, criteria of selection,
evaluation
of
service
records
of
the
employees fall within the exclusive domain
of the employer. Judicial review comes into
play only if State action is contrary to
constitutional or statutory provisions or is
patently arbitrary or vitiated by malafide. It
has been further held that for the purposes of
roaster, wider meaning has to be given so as
to take within its fold posts sanctioned in
different grades. While interpreting service
rules of Railway, it has been held that even
temporary, work charge, super numrie and
shadow posts created in different grades can
constitute part of the cadre and no fix
meaning can not be ascribed to the term
"cadre". In different service rules framed
under Article 309 of the Constitution of India
or rules framed in exercise of the powers of
delegated legislation, the word "cadre" has
been given different meaning. The post
sanctioned in different grades in Railways
constitute independent cadres. Paragraph 22,
23 and 27 of the said judgment which are
relevant are extracted hereunder:-

 "22. A conjoint reading of Para
103(7) of the Code, Para 103(iii) of the
Railway Establishment Manual and Circular
R.B.E. No. 113/97 makes it clear that in the
Railways, the term "cadre" generally denotes
the strength of a service or a part of a service
sanctioned as a separate unit. However, for
the purpose of roster, a wider meaning has
been given to the said term so as to take
within its fold the posts sanctioned in
different grades. The reason for giving this
enlarged meaning to the term "cadre" is that
posts in the railway establishment are
sanctioned with reference to grades. Even
temporary, work-charged, supernumerary
and shadow posts created in different grades
can constitute part of the cadre.

 23. In the service jurisprudence
which has developed in our country, no
fixed meaning has been ascribed to the
term "cadre". In different service rules
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
framed under proviso to Article 309 of the
Constitution as also rules framed in
exercise of the powers of delegated
legislation, the word "cadre" has been
given different meaning.

 .....

 27. The argument of Shri Sushil
Jain that Para 4(b) of Circular R.B.E. No.
113/97 dated 21-8-1997 is ultra vires the
definition of the word "cadre" contained in
Para 103(7) of the Code completely
ignores the stark reality that in the railway
establishment the posts are sanctioned with
reference to grades which term means subdivision of a class, each bearing a different
scale
of
pay.
Therefore,
the
posts
sanctioned in different grades would
constitute independent cadres and we see
no reason why a restricted meaning should
be given to the term "cadre" for the
purpose of implementing the roster."

14 . It is has been further held that to
secure social, political and economic justice,
the State is empowered to take non
discriminatory and affirmative action in
favour of downtrodden. The framers of the
Constitution of India were conscious and
aware of the inequalities and disparities in the
social fabric of the country and therefore,
they set goal of social, political and economic
justice in the preamble of the Constitution of
India and to achieve this goal they enacted
Articles 14, 15 and 16 in the Constitution of
India. Providing reservation of seats and post
in the field of eduction and employment are
reflective or affirmative action taken to
achieve the goal of justice and equality.
Paragraph 39 and 40 of the said judgment
would read as under:-

 "39.The
framers
of
the
Constitution were very much conscious and
aware of the widespread inequalities and
disparities in the social fabric of the
country as also of the gulf between rich and
poor and this is the reason why the goal of
justice'social, political and economic was
given the place of pre-eminence in the
Preamble.
The
concept
of
equality
enshrined in Part III and Part IV of the
Constitution has two different dimensions.
It
embodies
the
principle
of
nondiscrimination [Articles 14, 15(1), (2) and
16(2)]. At the same time it obligates the
State to take affirmative action for ensuring
that unequals (downtrodden, oppressed and
have-nots) in the society are brought at a
level where they can compete with others
(haves of the society) [Articles 15(3), (4),
(5), 16(4), (4-A), (4-B), 39, 39-A and 41].

 40.The
legislative
and
administrative measures taken by the State
for providing reservation of seats and posts
in the field of education and employment are
reflective of the affirmative action taken for
achieving the goal of real equality. However,
implementation and execution of such actions
have continuously faced roadblocks at
several stages. Those who had been benefited
by the existing system cried foul and created
the bogey of violation of their legal and
constitutional rights. Almost all the actions
taken by the State and its agencies for
ameliorating the conditions of have-nots of
the
society
by
providing
reservation
wer(2017) SCC Online All 2729 e subjected
to periodical judicial scrutiny. By and large,
the courts approved the affirmative actions of
the State but on some occasions the policy of
reservation or implementation thereof was
found to be faulty and actions taken by the
Government have been nullified or sliced by
judicial intervention."

15. Thus, it is for the employer to
define the cadre taking into consideration
4 All. Dr. Arti Sanghi & Ors. Vs. State of U.P. & Ors.
1021
the nature of service. Under the Statutory
Rules, 1990, all the posts of Lecturers in all
nine Government Homeopathic Medical
Colleges
constitute
one
cadre.
The
reservation has been provided in the
requisition
on
vacancies
subjectwise/disciplinewise. This definition
of cadre in the Rules, 1990 does not violate
any constitutional mandate, particularly,
when all the colleges are under the unified
supervision and control of the State
Government and the posts are transferrable
from one college to another.

16. The Court is required to see
whether the requisition for filling up the
vacant posts in all twelve different
subjects/discipline and clubbing of all the
vacant posts in each subject of all nine
Government
Homeopathic
Medical
Colleges in any manner violates the
statutory prescription or constitutional
provisions.

17. Shri Lalta Prasad Mishra,
learned Counsel for the petitioner has not
been able to point out that how the
reservation subjectwise clubbing all the
posts of that subject of all nine Government
Homeopathic Medical Colleges is in
violation of statutory prescription or the
constitutional provisions.

18. The Division Bench of this
Court, in its judgment in Vivekanand
Tiwari (supra) has held that applying the
reservation on teaching post treating the
university as a "unit" for the different level
of teachers and not the department/subject
as a "unit" was wholly incorrect and such
an advertisement issued by the Banaras
Hindu University was quashed.

19. The Division Bench of this
Court also took note instructions/guidelines
of
2006
of
the
University
Grants
Commission for applying the reservation
treating the University as a "unit" against
the law. The different qualifications are
prescribed for each department and subject
as such, an Assistant Professor in subject A
cannot make an application for direct
appointment as Associate Professor or
Professor in subject B, C or D but he can
only apply for a post in subject A.

20. This Court, quashed Clause
6(c) and 8(a)(v) of the University Grants
Commission's Guidelines of 2006, applying
the reservation treating the University as a
"Unit". Paragraph No.69 of the said
judgment would read as under:-

 "69. There is yet another reason
why the request of University Counsel
cannot be accepted. As we have held that
the relevant clauses of the policy viz. 6(c)
and 8(a)(v) of the UGC dated 25.08.2006
as also the letter of the UGC dated
19.02.2008 to be unsustainable the entire
advertisement in question relating to
teaching posts has to be quashed. Further
as we have held that the advertisement
published by the BHU was in violation of
the settled law and it also being arbitrary,
unreasonable, unworkable by applying the
reservation on teaching posts treating the
University as a ''Unit' for the different level
of teachers and not the department/subject
as a ''Unit we are of the view that the entire
advertisement has to go. There can be no
two yardstick to apply reservation in
different departments. We are of the view
that confining the relief only to the
respective subjects/departments for which
the petitioners are the applicants and
allowing the posts in the remaining
subjects/departments of the University to be
filled up treating the University as a ''Unit'
would create further complication and
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
would not only be impracticable, unworkable
but also unfair and unreasonable. We are
also directing the University to apply the
reservation policy afresh in the light of the
settled law. The University has to carry out
fresh exercise of calculating the reservation
for each department/subject. The relief, in
our opinion, cannot be confined only to the
department/subject in which the petitioners
are the applicants."

21. The view taken in aforesaid
judgment of the Division Bench of this
Court, was affirmed in Vijay Prakash
Bharti vs. Union of India and Others
reported in (2019) 12 SCC 410.

22. In view thereof, I find no
substance and merit in the present petition,
which is hereby dismissed.
----------
(2023) 4 ILRA 1022
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.04.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ A No. 6787 of 2012

Indra Kumar Ex Constable ...Petitioner
Versus
U.O.I. ...Respondent

Counsel for the Petitioner:
Piyush Asthana, Abdul Samad, M.P. Raju,
Maneesh Kumar Singh, Navita Sharma,
Rajendra Singh

Counsel for the Respondent:
A.S.G., Ajay Kumar Singh, Raj Kumar Singh,
Sandeep Sharma, Savitra Vardhan Singh

A. Service Law - Disciplinary proceedings
- C.R.P.F. Rules, 1995 - Rule 27(A),
Section 27 (ccc) - Central Civil Services
(Classification, Control and Appeal) Rules,
1964
-
Rule
10(2)
-
Whenever,
a
disciplinary authority is in disagreement
with the recommendation of the Inquiry
Officer
and
proposes
to
pass
a
punishment/major
punishment,
he
is
bound to assign the reasons for such
disagreement and is also required to give
a show cause notice to the petitioner
indicating such reasons so that the
delinquent employee can have a proper
opportunity to defend himself. (Para 16)

The disciplinary authority while proceeding
against the petitioner has considered the inquiry
report however, has disagreed with such inquiry
report and proceeded to pass major punishment
of removal against the petitioner however, while
disagreeing with the Inquiry Officer, the
authority has not given a show cause notice to
the petitioner which he was entitled under law.
(Para 16)

B. C.R.P.F. Rules, 1995 - Section 27 (ccc) -
When a member of the force has been
tried and acquitted by a criminal court, he
shall not be punished departmentally
under this rule on the same charge or on
the similar charge upon the evidence cited
in the criminal case, whether actually led
or not except with the prior sanction of
the Inspector General.

The Inquiry Officer vide inquiry report dated
23.06.2011 has found charge No. 1 proved in
view of the admission made by the petitioner
however, charge No. 2 was not found by him to
be proved.

In this case admittedly, the petitioner was being
tried for more or less the same charges (i.e.
charge No. 2) before the criminal court
therefore, in view of the express provision of the
Act, the disciplinary authority could not have
proceeded against the petitioner except with the
prior sanction of the Inspector General. (Para
16)

C.
When
there
was
an
honourable
acquittal of the employee during the
pendency of the proceedings challenging