# Dr. Nilesh Kumar Upadhyay v. State Of U.P. & Ors

- **Citation:** (2016) 7 ILRA 862
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-21
- **Bench:** Sudhir Agarwal, Shamsher Bahadur Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-nilesh-kumar-upadhyay-v-state-of-u-p-ors-44218
- **Pages:** 8

## Headnote

Service Law - Appointment - Adjustment of selected candidate - Scope of Section 13(4) &
13(5), U.P. Higher Education Services Commission Act, 1980 - Validity of appointment against
non-advertised vacancy - Petitioner appointed on honorarium basis against short-term vacancy and
continued under interim protection - Respondent selected pursuant to a different advertisement and later
sought to be adjusted against vacancy held by petitioner - Whether such adjustment permissible - Held,
Section 13(5) applies only to cases where a substantively appointed teacher is rendered surplus due to
abolition of post - Respondent not being such appointee, provision inapplicable (Paras 22, 23) - Section
13(4) applies only where vacancy arises during validity of select list and is not notified to Commission - In
7 All. Dr. Nilesh Kumar Upadhyay Vs State Of U.P. & Ors.
863
present case, vacancy already advertised, hence condition not satisfied (Paras 21, 25) - Appointment dehors
statutory provisions illegal and unsustainable (Paras 26, 27).

Service Law - Selection and appointment - Right of selected candidate - Mere selection does not
confer a right to appointment against any vacancy - Appointment must strictly conform to the advertisement
and statutory framework - Candidate selected for one advertisement cannot be adjusted against another
vacancy - Adjustment dehors selection impermissible (Paras 19, 27).

In Result - Writ petition allowed; impugned orders dated 27.8.2007 and 20.9.2007 set aside; petitioner
entitled to relief; costs of Rs.25,000 awarded (Para 28).

Cases cited

Kamlesh Kumar Sharma vs. Yogesh Kumar Gupta and others (1998) 3 SCC 45

## Text

862 INDIAN LAW REPORTS ALLAHABAD SERIES

33. Further declaration under Section 6 was made after another one year i.e. on 8th July
1993. As already said, possession has been taken admittedly on 18.8.1994 and 28.7.1995. This all
shows that as a matter of fact there was no such urgency where respondents could not have waited
for a few weeks or months so as to hold an inquiry and give opportunity of hearing to all tenure
holders or land owners whose land was proposed to be acquired. Exercise of power under Section
17 (1) and (4) by dispensing with inquiry under Section 5-A of Act, 1894 therefore, is clearly
illegal, founded on no material whatsoever, arbitrary and vitiates the proceedings of acquisition.

34. In view of above discussions, writ petition is partly allowed to the extent that impugned
notifications, to the extent of land belong to petitioners, in so far as it has dispensed with inquiry
under Section 5-A of Act, 1894, are hereby set aside. However, respondents shall be at liberty to
take further action from the stage of giving opportunity to land owners by submitting their
objections under Section 5-A and after considering the same respondents may proceed in
accordance with law.

35. Petitioners shall be entitled to costs against respondents-1 to 3, which we quantify to
Rs.25,000/-.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE SHAMSHER BAHADUR SINGH, J.

Writ A No.- 47801 Of 2007

Dr. Nilesh Kumar Upadhyay ...Petitioner
Versus
State Of U.P. & Ors.
 ...Respondents

Counsel for the Petitioner:
G.K. Singh, V.K. Singh

Counsel for the Respondents:
C.S.C., A.K. Singh, C.V.S. Raguvanshi, Dharmendra Kumar, Smt. Archana Singh.

Service Law - Appointment - Adjustment of selected candidate - Scope of Section 13(4) &
13(5), U.P. Higher Education Services Commission Act, 1980 - Validity of appointment against
non-advertised vacancy - Petitioner appointed on honorarium basis against short-term vacancy and
continued under interim protection - Respondent selected pursuant to a different advertisement and later
sought to be adjusted against vacancy held by petitioner - Whether such adjustment permissible - Held,
Section 13(5) applies only to cases where a substantively appointed teacher is rendered surplus due to
abolition of post - Respondent not being such appointee, provision inapplicable (Paras 22, 23) - Section
13(4) applies only where vacancy arises during validity of select list and is not notified to Commission - In
7 All. Dr. Nilesh Kumar Upadhyay Vs State Of U.P. & Ors.
863
present case, vacancy already advertised, hence condition not satisfied (Paras 21, 25) - Appointment dehors
statutory provisions illegal and unsustainable (Paras 26, 27).

Service Law - Selection and appointment - Right of selected candidate - Mere selection does not
confer a right to appointment against any vacancy - Appointment must strictly conform to the advertisement
and statutory framework - Candidate selected for one advertisement cannot be adjusted against another
vacancy - Adjustment dehors selection impermissible (Paras 19, 27).

In Result - Writ petition allowed; impugned orders dated 27.8.2007 and 20.9.2007 set aside; petitioner
entitled to relief; costs of Rs.25,000 awarded (Para 28).

Cases cited

Kamlesh Kumar Sharma vs. Yogesh Kumar Gupta and others (1998) 3 SCC 45

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

1. Heard Sri G.K. Singh, learned counsel for petitioner, Ms. Pragya Pandey, Advocate
holding brief of Smt. Archana Singh, learned counsel for respondent no.2 and learned Standing
Counsel for respondent no.1.

2. Petitioner has challenged appointment of respondent no.5 Ram Kumar Singh on the post
of Lecturer (Agriculture Economics) in B.R.D. P.G. College, Deoria.

3. Brief facts giving rise to present petition are as under :

4. B.R.D., P.G. Collage, Deoria (hereinafter referred to as 'College') is a Post Graduate
College affiliated to Deen Dayal Upadhyay University, Gorakhpur (hereinafter referred to as
'University'). College receives grant-in-aid from State Government and is governed by provisions
of U.P. State Universities Act, 1973 (hereinafter referred to as 'Act, 1973') and the first statute of
University framed under Act, 1973. For the purpose of recruitment of teachers in College it is also
governed by U.P. Higher Education Services Commission Act, 1980 (hereinafter referred to as
'Act, 1980'). Further College is being managed by an Authorised Controller (respondent no.4).

5. The post of Lecturer (Agriculture Botany) fell vacant on temporary basis since Dr. Amar
Nath Singh, an incumbent, appointed on the said post in College, proceeded on long leave from
1.7.2002 to 9.5.2003. Since selection by U.P. Higher Education Services Commission (hereinafter
referred to as 'Commission') was to take time, State Government issued an order dated 7th April
1998 permitting engagement of teachers on a fixed amount of honorarium in Non-Government
Colleges. Under aforesaid Government Order, selection is to be made by Committee of
Management on the criteria of merit after advertisement of vacancy and such a selection would be
for concerned academic session, which may continue thereafter in subsequent session but would
not entitle incumbent to claim regular appointment made on the post.
864 INDIAN LAW REPORTS ALLAHABAD SERIES

6. In view of Government Order dated 7.4.1998, College advertised the vacancy of
Agriculture Botany. Petitioner was ultimately selected and appointed with approval of Director,
Higher Education vide appointment letter dated 1.10.2002. A copy of appointment letter is
Annexure-5 to writ petition. The aforesaid appointment initially was for a period upto 30th June
2003 or till regularly selected candidate is available. Pursuant to aforesaid letter of appointment,
petitioner submitted his joining on 1.10.2002 itself. After end of session i.e. 30th June 2003,
College treated service of petitioner having seized, whereupon he filed Writ Petition No. 24606 of
20003 for a direction to permit petitioner to continue on the post till regularly selected candidate by
Commission joins the post. On 4th June 2003, this Court passed following interim order:

"Learned standing counsel has accepted notice on behalf of the respondents no.1
and 2.

Issue notice to respondent no.3.

Each one of the respondents is granted six weeks time for filing counter affidavit.
Two weeks thereafter is granted for filing rejoinder affidavit.

List this case on 11.8.2003.

Till the next date of listing petitioners shall be permitted to discharge their duty as
he is doing in the past till regularly selected candidate is recommended by the Commission."

7. The Government Order dated 7th April 1998 came up for consideration before a
Division Bench in Malvika Shekhar vs. Director of Higher Education in Writ Petition No. 44332 of
2003 and it was set aside vide judgment dated 29.9.2003 holding that appointment under
Government Order dated 7th April 1998 is illegal. Against aforesaid judgment dated 29.9.2003 in
Malvika Shekhar (Supra) an appeal was preferred i.e. Special Leave to Appeal (Civil)......../2003
(CC 11221/2003) and Supreme Court vide order dated 9.12.2003 stayed judgment of this Court.
Petitioner is thus, continuously working since 1.10.2002.

8. Commission advertised post of Lecturer (Agriculture Botany) for College. The said
advertisement was issued on 26.4.2002, published in Daily Hindi Newspaper 'Amar Ujala'. The
newspaper contained three advertisements nos. 30, 31 and 32. Advertisement no. 30 was for filling
up backlog/carry forward vacancy for reserved category pursuant to advertisement no.24;
Advertisement no. 31 for filling up of backlog/carry forward vacancy advertised in advertisement
no. 26 and Advertisement no. 32 was for both general and reserved category. Respondent-5 applied
pursuant to advertisement no.31. He was selected and placed in select list prepared by Commission
and sent to Director, Higher Education for his placement. Director, Higher Education, vide
recommendation dated 23.6.2005 forwarded name of respondent- 5 for appointment in College. It
was mentioned in the said letter that the placement of respondent- 5 was made on a newly created
post. When respondent- 5 approached College and requested for issuance of appointment letter to
him, College wrote a letter dated 19th/20th July 2005 to Director, Higher Education stating that for
7 All. Dr. Nilesh Kumar Upadhyay Vs State Of U.P. & Ors.
865
newly created post of Lecturer (Agriculture Botany) vide order dated 19.5.1998, Director, Higher
Education sent recommendation/placement order dated 29.10.1999 in favour of one Rajendra Singh
Lohia, a candidate selected by Commission, and pursuant thereto, he was appointed and is
presently working and no such post is vacant in that College. It is also stated that respondent- 5 was
working as Lecturer on honorarium basis in 'Ranjeet Singh Memorial P.C. College Dhampur,
Bijnor' against a substantive vacancy when selected and recommended for appointment in College.

9. When College having clarified position with respect to the alleged newly created post of
Lecturer (Agriculture Botany) and showed inability to issue appointment letter to respondent- 5, it
compelled him to approach this Court in Writ Petition No. 743 of 2006 impleading State of U.P.;
Commission; Director, Higher Education; Management of College and Dr. Rajendra Singh Lohia,
seeking following reliefs :

"(a) a writ, order or direction of suitable nature commanding the respondents to
give appointment to the petitioner as Lecturer (Agriculture Botany) for which the petitioner is
selected by the Commission.

(b) a writ, order or direction in suitable nature commanding the respondents to
recommend the name of the petitioner for the post of Lecturer (Agriculture Botany) to Ranjeet
Singh Memorial, P.G. College Dhampur, Bijnore where a substantive post of Lecturer (Agriculture
Botany) on honorarium basis or any other recognized institution where a substantive post of
Lecturer (Agriculture Botany) is vacant.

(c) a writ, order or direction in suitable nature commanding the respondent
authorities to decide the representations of the petitioner dated 31.5.2005, 14.11.2005 and
23.11.2005 (Annexure No. 7, 10-A & B to this writ petition)."

10. The writ petition was disposed of vide judgment dated 12.3.2007 permitting
respondent- 5 to make a representation and Director, Higher Education was required to decide the
same by a speaking order.

11. State Government instead of getting compliance of judgment dated 12.3.2007, issued
an order dated 27.8.2007 requiring Director, Higher Education to place respondent no.5 in College
and pursuant thereto vide letter dated 6.9.2007, Director, Higher Education informed College that
for easy adjustment of respondent- 5, he should be appointed against vacancy advertised vide
advertisement no.41 i.e. the post whereupon petitioner is working. In such circumstances, petitioner
made a detailed representation dated 17.9.2007 informing that respondent no.5, having not been
selected against vacancy advertised vide advertisement no. 41, hence cannot be adjusted
thereagainst so as to dislodge petitioner. It was also stated that Dr. Amar Nath Singh, having
continued on leave, ultimately resigned on 17.2.2007, rendering the vacancy permanent.

12. It is also stated that petitioner has applied to the post, he is holding as Lecturer on
honorarium basis, pursuant to advertisement no. 41 and in case, respondent no. 5 is allowed to be
866 INDIAN LAW REPORTS ALLAHABAD SERIES

appointed against the said post, the entire selection pursuant to advertisement no.41 in respect of
said post, will stand frustrated and this is not permissible to Director, Higher Education in any
circumstances.

13. Further reliance is placed on Section 31-E inserted vide U.P. Act No. 42, 2006 of Act,
1980 providing for regularisation of teachers working on honorarium basis and have completed
three years and it is contended that petitioner is also entitled for regularization in view of aforesaid
provision, pursuant whereto, Director, Higher Education has already asked from concerned
colleges names of such teachers, who fulfill requirement under Section 31-E for regularisation,
College vide letter dated 6.2.2007 has sent information mentioning petitioner's name at Sl. No.2.

14. The writ petition has been contested by respondents. Counter affidavit on behalf of
respondents- 1 and 3 has been filed sworn by Dr. P.K. Sharma, Assistant Director, in which it is not
disputed that respondent- 5 Ram Kumar Singh was selected pursuant to advertisement no.31. He
was allotted vacancy against newly created post but could not join since another selected candidate
had already joined the said post/vacancy. Thereafter pursuant to order passed by this Court in Writ
Petition No. 743 of 2006, an order was passed to accommodate respondent- 5 under Section 31(5)
to any other college, State Government agreed with proposal of Director, Higher Education and
thereafter placement of respondent- 5 has been made in the College against vacancy in which
petitioner is working. It is said that the adjustment, which has been made by respondent- 3 is
permissible under Section 13(5) of Act, 1980 to do justice and equity to selected candidate.

15. On behalf of Committee of Management of College, a separate counter affidavit has
been filed, sworn by Sri K.N. Singh, Principal and there also stand taken by respondent- 5 has been
reiterated and followed. It is also stated that pursuant to order dated 12.9.2007 respondent-5 has
been given appointment letter and he has joined College and is working.

16. Petitioner has filed rejoinder affidavits disputing stand taken by respondents and
reiterated what it has stated in writ petition and has also placed reliance on the judgment in
Kamlesh Kumar Sharma vs. Yogesh Kumar Gupta and others (1998) 3 SCC 45.

17. The order adjusting respondent-5 is sought to be justified by respondents- 1 and 3 with
reference to Section 13(5) of Act, 1980, which reads as under:

"13. Recommendation of Commission. - (1) The Commission shall, as soon as
possible, after the notification of vacancies to it under Sub-section (3) of Section 12 hold interview
(with or without written examination) of the candidates and send to the Director a list
recommending such number of names of candidates found most suitable in each subject as may be,
so far practicable, twenty-five per cent more than the number of vacancies in that subject. Such
names shall be arranged in order of merit shown in the interview, or in the examination and
interview if an examination is held.
7 All. Dr. Nilesh Kumar Upadhyay Vs State Of U.P. & Ors.
867
(2) The list sent by the Commission shall be valid till the receipt of a new list from
the commission.

(3) The Director shall having due regard in the prescribed manner, to the order of
preference if any indicated by the candidates under the second proviso to Sub-section (4) of Section
12, intimate to the management to name of a candidate from the list referred to in Sub-section (1)
for being appointed in the vacancy intimated under Sub-section (2) of Section 12.

(4) Where a vacancy occurs due to death, resignation or otherwise during the
period of validity of the list referred to in Sub-section (2) and such vacancy has not been notified to
the Commission under Sub-section (3) of Section 12, the Director may intimate to the management
the name of a candidate from such its for appointment in such vacancy.

(5) Notwithstanding anything in the preceding provisions, where to abolition of
any post of teacher in any college, services of the person substantively appointed to such post is
terminated the State Government may make suitable order for his appointment in a suitable
vacancy, whether notified under Sub-section (3) of Section 12 or not in any other college, and
thereupon the Director shall intimate to the management accordingly.

(6) The Director shall send a copy of the intimation made under Sub-section (3) or
Sub-section (4) or Sub-section (5) to the candidate concerned."
(emphasis added)

18. Sub-sections 1, 2 and 5 talk of selection made pursuant to concerned advertisement,
merit list prepared by Commission and forwarded to Director, Higher Education and consequent
recommendation made by Director to Management of College for appointing selected candidates
on the vacancy intimated to Commission under Sub-section 2 of Section 12.

19. In this regard, case set up by respondents is clear that in advertisement no. 31, a
vacancy of Lecturer (Agriculture Botany) created vide Government Order 7th April 1998 was
advertised and there-against respondent-5 was recommended for appointment by Management of
College. It appears that Director, Higher Education failed to consider or keep in mind that in the
meantime, it had already filled in the said vacancy by recommending another candidate Rajendra
Singh Lohia and he was already appointed, hence there is no such vacancy on the date of
recommendation made by Commission or the date on which the placement and recommendation
made by Director, Higher Education. In fact even this arrangement by Director was illegal but
unfortunately appointment of Rajendra Singh Lohia is not subjected to this petition, hence we
cannot help respondent-5.

20. There are two provisions, which permit Director to make appointment of a candidate in
respect of a vacancy, which has not been advertised by recommending name of a candidate selected
from another advertisement. They are Sub-sections 4 and 5 of Section 13.
868 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Sub-section 4 comes into picture to a vacancy, which has occurred due to death,
resignation or otherwise during validity period of a select list sent by Commission under Subsection 2 of Section 13 and in respect of such vacancy, Director may intimate to Management, the
name of a candidate from such list for appointment but it is subject to condition that firstly, a
vacancy must have occurred during validity period of list and further that vacancy has not been
notified to Commission under Section 12(3) of Act, 1980.

22. Sub-section 5 talks of a situation wherein due to abolition of post of a teacher in
College, a person substantively appointed is terminated. State Government can protect such a
person by issuing a suitable order for his appointment in a suitable vacancy whether notified under
Sub-section 3 of Section 12 or not, in any other College, whereupon Director shall intimate
Management accordingly.

23. We fail to understand as to how Sub-section 5 will be applicable in the case in hand,
inasmuch as, respondent no.5 is not a person, who is substantively appointed and would stand
terminated due to abolition of any post of teacher in College and to provide him suitable
appointment an order can be passed under Section 13(5) of Act, 1980. Despite giving widest
construction to the language of Section 13 (5), we do not find that respondent-5 can be fitted in the
exigency contemplated by Section 13(5) of Act, 1980 and we have no hesitation in holding that
aforesaid provision has no application to the case in hand.

24. Now we come to the question, "whether Sub-section 4 can be applied in the case in
hand".

25. We find that Commission forwarded select list vide its letter dated 2.5.2005. The first
placement was made by Director vide order dated 23.6.2005. Short-term vacancy on the post of
Lecturer (Agriculture Botany) occupied by petitioner occurred on 1.10.2002 when permanent
incumbent Dr. Amar Nath Singh proceeded on leave on 1.10.2002 and it got converted into a
substantive vacancy on 17.2.2007 when Dr. Amar Nath Singh resigned. The aforesaid substantive
vacancy has been advertised vide advertisement no. 41 in daily newspaper Dainik Jagran dated
10.2.2007. Thus, when Court passed order on 12.3.2007 in Writ Petition No. 743 of 2006 filed by
respondent-5 directing authorities to decide his representation as also on 27.8.2007 and State
Government issued order directing Director, Higher Education to adjust respondent-5 in the
College and on 20.9.2007 when Director, Higher Education issued impugned order, the vacancy in
question was already notified to Commission and advertised for recruitment. Therefore, one of the
conditions under Sub-section 4 that such vacancy has not been notified to Commission under Subsection 3 of Section 12 is not satisfied and that being so, Director did not get any authority to
intimate management to appoint respondent-5 from select list sent by Commission on 2.5.2005.

26. Thus, section 13 is not at all applicable in the case in hand. No other provision has been
relied by the respondents in order to justify impugned order of appointment of respondent-5.
7 All. Kallu Kushwaha Vs State Of U.P.
869
27. In view of above discussion, we are clearly of the view that appointment of respondent5 on the post in question by referring to Section 13(4) and (5) of Act, 1980 is beyond the scope of
said provisions and is illegal. Respondent-5 having not been selected against the vacancy in
question and there is no provision under the Act, which may justify his appointment against the
vacancy in question despite having not been selected against the same, the impugned order issued
by Director, Higher Education for appointment of respondent-5 on the post in question cannot be
sustained.

28. In the result, the writ petition is allowed. Impugned orders dated 27.8.2007 (Annexure
15 to the writ petition) and 20.9.2007 (Annexure 8 to the writ petition) are hereby set aside.
Petitioner shall be entitled to cost, which we quantify to Rs.25,000/- against respondents - 1 and 3.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.07.2016

BEFORE

THE HON'BLE ABHAI KUMAR, J.

Criminal Appeal No.- 75 Of 2014

Kallu Kushwaha ...Appellant
Versus
State Of U.P. ...Respondent

Counsels for the Appellant:
Shri Sanjeev Khare, Shri Ram Sharan Giri

Counsel for the Respondent:
G.A.

Held -

Background: The appellant, Kallu Kushwaha, challenged his conviction by the Mahoba Sessions Court for
kidnapping (Section 363), abduction (Section 366), and gang rape (Section 376(2)g). While two co-accused
were acquitted by the trial court, the appellant was sentenced to various terms, including ten years for rape.

The Prosecution Story: It was alleged that the appellant abducted a 13-year-old girl on a motorcycle in 2011
and took her to a different district where she was repeatedly raped. However, medical evidence later
estimated her age to be between 16 and 18 years.

Hon'ble High Court Findings on Rape and Abduction: The High Court observed that the medical report showed
no external or internal injuries, which is inconsistent with a claim of forced sexual intercourse by multiple
people. The Court concluded the prosecutrix was a consenting party who accompanied the appellant of her
own free will, thereby setting aside the convictions under Sections 366 and 376 IPC.