# Dr. Sanjay Kumar Bhat & Ors v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 454
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Writ A No. 879 of 2024
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-sanjay-kumar-bhat-ors-v-state-of-u-p-ors-52122
- **Pages:** 12

## Headnote

Law
-
UP
Educational
Instructions (Reservation in the Teachers
Cadre) Act, 2021 - Section 3(1) - Post of
Assistant Professor - Recruitment -
Reservation - Act of 2021 provide that
the institute will be taken as a unit for
applying reservation on the various
faculty position - No Rules regarding
reservation of post in direct recruitment
could be framed as required u/s 3(1) of
the Act - Effect - Held, the respondentinstitute proceeded for appointment,
without
being
any
St.
prescription,
regarding the manner and extent of
applying reservation as per section 3(1)
of the Act 2021 more so, the opposite
parties have failed to demonstrate any
procedure or manner as is prescribed by
notified any Rules in the Gazette. (Para
31)
5 All. Dr. Sanjay Kumar Bhat & Ors. Vs. State of U.P. & Ors.
455
B. Service Law - U.P. Public Services
(Reservation for Economically Weaker
Sections) Act 2020 - S. 20(b) - Circular
dated 24.11.2023 and GO dated 18.01.204
- Post of Assistant Professor - Recruitment
-Economic
Weaker
Section
(EWS)
Category - Advertisement was issued
allowing the Senior Resident, whom salary
is admittedly around 1 Lakh per month, to
apply under EWS Category - Permissibility
- Held, EWS reservation ought not to have
been
applied
in
the
impugned
advertisement
dated
01.12.2023
on
account of peculiar eligibility criteria for
the
post,
so
advertised,
which
persupposes gross annual income to be more
than almost Rs. 12 lacs, while any
candidate having gross annual family
income of more than eight lacks, is not
covered within the definition of EWS as per
the Act, 2020. (Para 37)

C. Service Law - U.P. Public Services
(Reservation for Economically Weaker
Sections) Act 2020 - Post of Assistant
Professor - Recruitment - Unfulfilled
vacancies of EWS category - Special
Recruitment
issued
treating
these
unfulfilled vacancies as backlog vacancies
- Permissibility - Held, Section 3(2) of the
Act of 1994 speaks that for the unfilled
vacancies the employer St. is at liberty to
fill up the backlog vacancies by means of
special drive. However, there is no parimateria provision in the Act of 2020, which
inter-alia governs the manner in which
EWS reservation is to be provided, rather
Section 3(6) of Act 2020, categorically
provides that the unfilled vacancies of the
EWS category are not ought to be left
vacant and ought to be filled up by
unreserved candidates. (Para 38 and 39)

D. Interpretation of Statute - UP General
Clauses Act, 1904 - S. 33-A - Word
'Prescribed' used in Section 3(1) of the Act,
2021 - Meaning - The word 'prescribed'
shall mean prescribed by the rules made
under the Act, in which the word occurs.
(Para 25)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,960 of 40,273. This is a partial read: ask again with offset=39960 for what follows._

454 INDIAN LAW REPORTS ALLAHABAD SERIES
to be considered within the framework of the
regulations
and
other
eligibility
criteria.........."

CONCLUSION

53. Since the selection process was
initiated without any prior approval from
DIOS as mandated in Regulation 101, the
selection process stood vitiated since its
inception. We have discussed in detail about
the alleged publication, which was made in
'Amar Ujala' dated 10.12.2017 and the
appointment letter dated 22.1.2018. From
bare perusal of the said publication dated
10.12.2017, it is apparent that the same was
bereft of necessary information. The said
publication nowhere provides for any
educational qualification, pay scale or any
other essential qualifications and the same is
absolutely an eye wash. The relevant
information were missing there.

54. We also find that the
appointment letter does not contain even the
address of the petitioner, which also creates
doubt regarding genuineness of such
appointment. Therefore, we hold that the
publication was not in accordance with law.
We also hold that the entire exercise of
appointment is doubtful and as such the
same is unsustainable in the eyes of law.

55. In the aforesaid facts and
circumstances, we find that learned Single
Judge has erred in law in holding that the
provisions of Regulation 101 Chapter III of
the Act, 1921 would not be applicable on the
minority institution. Therefore, in view of
the above, we hold that Chapter III
Regulation 101 is fully applicable on the
aided, recognised institutions without any
classification of minority or non-minority.
Accordingly, the judgment and order
impugned passed by learned Single Judge is
set aside.

56. The special appeal stands
allowed accordingly.
----------
(2024) 5 ILRA 454
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2024

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ A No. 879 of 2024

Dr. Sanjay Kumar Bhat & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Gaurav Mehrotra, Anant Khanna, Ritika
Singh, Vivek Kumar Rai

Counsel for the Respondents:
C.S.C., Anupras Singh

A.
Service
Law
-
UP
Educational
Instructions (Reservation in the Teachers
Cadre) Act, 2021 - Section 3(1) - Post of
Assistant Professor - Recruitment -
Reservation - Act of 2021 provide that
the institute will be taken as a unit for
applying reservation on the various
faculty position - No Rules regarding
reservation of post in direct recruitment
could be framed as required u/s 3(1) of
the Act - Effect - Held, the respondentinstitute proceeded for appointment,
without
being
any
St.
prescription,
regarding the manner and extent of
applying reservation as per section 3(1)
of the Act 2021 more so, the opposite
parties have failed to demonstrate any
procedure or manner as is prescribed by
notified any Rules in the Gazette. (Para
31)
5 All. Dr. Sanjay Kumar Bhat & Ors. Vs. State of U.P. & Ors.
455
B. Service Law - U.P. Public Services
(Reservation for Economically Weaker
Sections) Act 2020 - S. 20(b) - Circular
dated 24.11.2023 and GO dated 18.01.204
- Post of Assistant Professor - Recruitment
-Economic
Weaker
Section
(EWS)
Category - Advertisement was issued
allowing the Senior Resident, whom salary
is admittedly around 1 Lakh per month, to
apply under EWS Category - Permissibility
- Held, EWS reservation ought not to have
been
applied
in
the
impugned
advertisement
dated
01.12.2023
on
account of peculiar eligibility criteria for
the
post,
so
advertised,
which
persupposes gross annual income to be more
than almost Rs. 12 lacs, while any
candidate having gross annual family
income of more than eight lacks, is not
covered within the definition of EWS as per
the Act, 2020. (Para 37)

C. Service Law - U.P. Public Services
(Reservation for Economically Weaker
Sections) Act 2020 - Post of Assistant
Professor - Recruitment - Unfulfilled
vacancies of EWS category - Special
Recruitment
issued
treating
these
unfulfilled vacancies as backlog vacancies
- Permissibility - Held, Section 3(2) of the
Act of 1994 speaks that for the unfilled
vacancies the employer St. is at liberty to
fill up the backlog vacancies by means of
special drive. However, there is no parimateria provision in the Act of 2020, which
inter-alia governs the manner in which
EWS reservation is to be provided, rather
Section 3(6) of Act 2020, categorically
provides that the unfilled vacancies of the
EWS category are not ought to be left
vacant and ought to be filled up by
unreserved candidates. (Para 38 and 39)

D. Interpretation of Statute - UP General
Clauses Act, 1904 - S. 33-A - Word
'Prescribed' used in Section 3(1) of the Act,
2021 - Meaning - The word 'prescribed'
shall mean prescribed by the rules made
under the Act, in which the word occurs.
(Para 25)

Writ petition allowed. (E-1)

List of Cases cited:

1. Rajjan Lal Vs St. & anr.; AIR 1961 ALL 139 (FB)

2. Bharat Sanchar Nigam Ltd. & anr. Vs BPL
Mobile Cellular Ltd. & ors.; (2008) 13 SCC 597

3. Nawal Kishore Mishra & ors.Vs High Court of
Judicature of Allahabad; (2015) 5SCC 479

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Shri Satish Chandra Mishra,
learned Senior Advocate assisted by Shri
Gaurav Mehrotra, learned counsel for the
petitioners, Shri Anupras Singh, learned
counsel for Dr. Ram Manohar Lohia
University, Shri Shailendra Kumar Singh,
Chief Standing Counsel, Vivek Shukla,
Additional Chief Standing Counsel and Shri
Tushar Verma, learned counsel for the State.

2. Challenge is made to the
advertisement
bearing
no.
DrRMLIMS/ER/Rect-F/2023/1217
dated
01.12.2023 (hereinafter referred to as
'impugned advertisement') issued by the Dr.
Ram Manohar Lohia Institute of Medical
Sciences
(hereinafter
referred
to
as
'Institute') thereby, applications have been
invited
from
eligible
candidates
for
appointment
of
faculty
on
regular/deputation basis, vide the special
recruitment
drive
for
the
post
of
Professors/Associate
Professors
and
Assistant Professors in various departments
and
further
the
order
bearing
no.
DrRMLIMS/ER/Estb.1-F2/2024/1589
dated 19.01.2024 is also assailed whereby,
the application of the petitioners has
impliedly been rejected.

3. Contention of counsel for the
petitioners is that 'the Institute' is an
autonomous super specialty post graduate
456 INDIAN LAW REPORTS ALLAHABAD SERIES
institute, fully aided by the Government of
U.P. The institute is creation of statute
namely, Dr. Ram Manohar Lohia Institute of
Medical Sciences Act 2015 (hereinafter,
referred to as the 'Act 2015') and it is
discharging public function.

4. Further submission is that the
petitioners are not the outsiders, but are the
faculty members working on the post of the
Professors(Junior
Grade)/Additional
Professors in the institute whose description
are given as follows:-

Sr No.
Name
Present Post

1.
Dr
Sanjay
Kumar Bhatt

Professor(Jr
Grade)

2.
Dr
Vineet
Kumar
Professor(Jr
Grade)
3.
Dr Neetu Singh

Professor(Jr
Grade)
4.

Dr Rajni Bala
Jasrotia

Professor(Jr
Grade)

5.

Dr
Abhilash
Chandra
Professor(Jr
Grade)

6.
Dr
Manish
Kulshrestha
Professor(Jr
Grade)

5. Next submission is that the work
and conduct of the petitioners were always
above-board as they perform their duties to
the best of their ability, sincerity and
commitment to the institution.

6. Vide impugned advertisement
dated
01.12.2023,
applications
were
invited from eligible persons for the
appointment
of
faculty
on
regular/deputation basis through special
recruitment drive, however, there are
various anomalies in the advertisement.
He argued that prior to promulgation of
Uttar Pradesh Educational Instructions
(Reservation in the Teachers Cadre) Act
2021 (hereinafter referred to as the 'Act
2021'), the department concerned of the
Universities
and
statutory
medical
institutes were taken as a unit for applying
reservation however, after coming into the
existence of the aforesaid new enactment
i.e. the Act 2021, the institute is taken as a
unit for applying reservation on the
various faculty position and further
section 3(1) of the Act 2021 categorically
provides that the reservation on the post of
direct recruitment in the institution is to be
provided to the extent and in a manner
'prescribed' by the State Government, but
the State Government never prescribed
any procedure regarding reservation of
post
in
direct
recruitment
out
of
sanctioned strength in the teacher cadre
which creates great anomaly and this goes
to the root of the matter.

7. He further argued that the
recruitment exercise initiated by the
respondent
institute
vide
impugned
advertisement dated 01.12.2023 is not
incongruence with the existing guidelines
of the Medical Council of India and the
same is based on the old guidelines of the
Medical Council of India of year 2020
whereas, in year 2023, the guideline of
National
Medical
Commission
(hereinafter
referred
to
as
'NMC')
(erstwhile MCI) reduced the strength of
faculty and therefore, the strength of
faculty members in the institute is liable to
be
re-determined
as
per
the
2023
guidelines of NMC and therefore, the
advertisement is published ignoring the
new guidelines.

8. Further contention of counsel for
the petitioners is that there was no need of
applying EWS category reservation for the
post so advertised in the impugned
5 All. Dr. Sanjay Kumar Bhat & Ors. Vs. State of U.P. & Ors.
457
advertisement dated 01.12.2023 as the same
would affect right of such person who can
get the benefit of reservation as per the
roster prescribed under the Act 1994.

9. He added that though, the
institute has received a huge amount of Rs.
2,885 lacs from the Prime Minister
Ayushman Bharat Health Infrastructure
Managemnet for construction of 100 beds
critical care block, but no post has been
advertised to fill up, including Assistant
Professor, Associate Professor or Professor
whereas, fact remains that on 06.06.2018
one Dr Chandra Kant Pandey (unreserved
category) was appointed as professor in the
department of critical care as a permanent
faculty member in the institute and when he
resigned, no regular appointment is made
and even at this time when the post of all the
faculties are advertised, the critical care
department has been left, the reason best
known to the responsible authorities of the
institute though, the same would adversely
affect the right of those candidates who
could have been considered if, the post
would have been advertised for critical care
department.

10. It has further been submitted
that the standardization of Government
Order dated 30.11.2022 is out dated for the
reason that it is based on old MCI guidelines
however,
subsequently,
the
aforesaid
guidelines have been superseded and new
guidelines have been promulgated vide
order dated 16.08.2023 issued by NMC and
thus, in this view of the matter also, the
impugned advertisement is faulty.

11. While continuing with his
arguments,
he
submits
that
the
advertisement is named as the Special
Recruitment which only can be done for the
backlog seats, but so far as the act meant for
the EWS category, known as 'Constitution
(One Hundred and Third Amendment) Act,
2019 do not provide any mechanism for
filling the vacancy while carrying out
special drive, contrary it is provided in the
act that if, there would be no candidate in the
EWS category those will be treated as seats
of General Category, which is not parimateria to the provisions prescribed in the
Uttar Pradesh Public Services (Reservation
for Scheduled Castes, Scheduled Tribes and
Other
Backward
Classes)
Act
1994
(hereinafter referred to as 'Act 1994').

12. Concluding his arguments, he
submits that since, the advertisement is hit
by various anomalies, as no procedure
prescribed by the State under Act 1921, no
mode is prescribed for EWS category and
since, the teachers of the faculty starting
form Assistant Professor are getting more
then 8 lacs of salary and therefore, applying
EWS category reservation, is wholly
unjustified and therefore, the advertisement
dated 01.12.2023 as well as the impugned
rejection order dated 19.01.2024 may be
quashed and the respondents may be
directed to issue afresh advertisement in
accordance with law.

13. Refuting the contention of
counsel for the petitioners, the counsel
appearing
for
the
respondent-institute
submitted that from perusal of section 3 of
the Act 2021, discloses the purpose of
legislation, for applying reservation, treating
the State Educational Institutions as one
unit. The reservation under this Act, is to be
done as per existing norms laid down by the
State Government however, the prescription
regarding extent and manner of the
reservation has been provided by the
legislature in Act 1994 and the Act 2021 and
they are in consonance with each other and
there is no contradiction at all. He added that
458 INDIAN LAW REPORTS ALLAHABAD SERIES
section 3(1) of the Act 2021 provides
reservation of post in direct recruitment in
Teachers' cadre in State Educational
institution to the extent and in a manner as
prescribed by the State Government, which
clearly indicates the conscious decision is
taken by the State Legislature by putting the
word as 'prescribed' not the words 'may be
prescribed' or 'shall be prescribed' or 'to be
prescribed' and therefore, the procedure
which has already been prescribed for
applying the reservation would be taken care
of nothing else and that too has been done
while publishing the advertisement by the
institution.

14. In support of his contention, he
has place reliance on the full bench
judgment of the Allahabad High Court, in
case of Rajjan Lal Vs. State and another,
reported in AIR 1961 ALL 139 (FB),
wherein, it has been held that unless the
word
'prescribed'
is
qualified
by
appropriate words, it means prescribed
by any law. Further, the Hon'ble
Supreme Court in case of Bharat
Sanchar Nigam Limited and Another
Vs. BPL Mobile Cellular Limited and
Others reported in (2008) 13 SCC 597
has held that when the word 'prescribed'
is not defined, the same would mean that
'prescribed' in-accordance with law and
not otherwise.

15. Adding his arguments, he
submits that the law rendered by Apex Court
in case of Nawal Kishore Mishra and
Others versus High Court of Judicature
of Allahabad (2015) 5SCC 479, it has
categorically been held that section 3(1) of
the Act 1994 specifically provides for the
extent of reservation for SC/ST/OBC and
the absence of any other prescription
regarding application of reservation, the Act
1994 would apply.
16. He submits that the reservation
in favour of economically weaker section
(EWS) candidates came into existence vide
the U.P. Public Services (Reservation for
Economically Weaker Sections) Act 2020
which provides that 10% of the vacancies
shall be reserved in favour of the persons
belonging to EWS therefore, the post which
are reserved for EWS category in the
impuged advertisement, are according to the
reservation roaster as prescribed by the State
Government and that has to be necessary
reserved for the EWS category and it is not
open to 'the institute' to take any other view
on its own, while taking a decision not to
reserve the post in favour of EWS category.

17. He has also clarified that the
vide Government Order dated 09.09.2016,
the State Government keeping in view the
need of Institute and requirement of the
patient,
sanctioned
one
post
of
Professor(Critical Care Medicine) in the
institute
and
the
Institute
appointed
Professor Chandra Kant Pandey against the
sanctioned post of Professor, while duly
publishing the advertisement on 19.05.2017
and Mr Pandey joined on 06.06.2018,
however, he submitted his resignation and
was
relieved
from
the
institute
on
30.11.2019. Adding his arguments, he
submits that the clause 2(12) of the G.O.
dated 05.09.2022 provides that if, any post
is previously sanctioned and is not included
in the standardization(Mankikaran) then,
those
posts
will
be
treated
as
nil/surrendered,
after
the
incumbent
occupying these posts, demit the office,
though, subsequently the post of professor
(Critical Care) is stated to be nil as the same
was not included in the standardization
however, looking into the interest and need
of patient care one Dr. Sashi Srivastava who
had superannuated form Sanjay Gandhi
Postgraduate Institute of Medical Sciences,
5 All. Dr. Sanjay Kumar Bhat & Ors. Vs. State of U.P. & Ors.
459
Lucknow, was appointed as a Professor on
re-employment basis in the department of
Anesthesiology, who joined on 04.07.2023
and thus, there is neither any post of
Professor in Critical Care Medicine nor
there is any person working as a
Professor(Critical Care Medicine) in the
institute.

18. Replying the contention of
counsel for the petitioners, he submits that
all though, the number of post sanctioned in
the Government Medical Institution is based
on minimum recommendations made by
statutory bodies like MCI/NMC, but it is not
the sole criteria for determining the number
of post sanctioned by the Government for
proper functioning of Institute as well as for
providing the patient care, as required, but in
addition, the requirement for patient care,
training,
research,
teaching
and
administration are also the ancillary ground
of consideration.

19. He submits that the number of
posts advertised by the institute is based on
the number of posts available with the
institute and further, keeping in view the
requirement
of
the
institute
while,
controverting the plea taken by the
petitioners he submits that the special
recruitment cannot be carried out while,
special recruitment has been undertaken to
balance the reservation for faculty position,
considering the institute as a unit and the
seats reserved for the candidates belonging
to the SC/ST/OBC/EWS categories have
been balanced out by the advertising seats
vide advertisement for special recruitment
and those are not the backlog seats, as the
advertisement also do not speak like that. He
next added that the post of Professor,
Department of Clinical Hematology has
been
advertised
under
the
special
recruitment and not as backlog post. He sum
up his arguments while submitting that the
advertisement dated 01.12.2023 issued by
the institute for appointment of faculty on
regular basis is strictly in-accordance with
the statutory provisions as well as the
directions issued by the state Government,
regarding reservation which is perfectly inaccordance with law therefore, submission
is that no interference is warranted.

20. Having heard learned counsels
for the parties, the following questions arises
for consideration.

a.
Whether,
the
respondentinstitute could have proceeded to apply the
reservation in the impugned advertisement
dated 01.12.2023, without there being any
manner 'as prescribed' by the State
Government' as provided under section 3(1)
of the Act 2021?

b. Whether, there could have been
any applicant belonging to EWS category,
who would have applied for the post of
Assistant Professor, Associate Professor and
Professor, admittedly, having more than 8
lacs of income?

c. Whether, there can be any
special recruitment drive for EWS or other
categories
without
there
being
any
procedure prescribed under the Act 2020
and the Act 2021?

d. Whether, the standardization
Government Order dated 30.11.2022 is
outdated for the reason that it is based on old
MCI
guidelines
of
2020,
however,
subsequently, those have been superseded
vide order dated 16.08.2023, issued by
NMC?

21. Before enactment of U.P.
Educational Instructions (Reservation in the
Teachers Cadre) Act 2021 the department
concerned of the University and the
Statutory Medical Institutes were taken as a
unit for applying reservation, but now the
460 INDIAN LAW REPORTS ALLAHABAD SERIES
Institute is taken as a unit for applying
reservation.

22. Section 3(1) of the Act 2021
provides that there shall be reservation of
post in direct recruitment out of the
sanctioned strength in Teachers Cadre in a
State Educational Institution to the extent
and in the manner as prescribed by the State
Government.

23. Section 3(1) of the Act 2021 is
extracted as under:-

"Notwithstanding anything in any
other law of the State of Uttar Pradesh for
the time being enforced, there shall be
reservation of posts in direct recruitment out
of the sanctioned strength in Teachers cadre
in a State Educational institution to the
extent and in the manner as prescribed by
the State Government".

24. The above noted provision do
not speak about any 'manner already
prescribed', but it says 'as prescribed'.

25. The statement of objects and
reasons of the Act 2021 make the intention
of legislature amply clear that it has been
decided that the previous Government Order
for application of reservation for teaching
post be replaced by the Act 2021, so far as
the definition of word prescribed given
under section 33-A of the U.P. General
Clauses Act 1904 is concerned, it says that
the word prescribed shall mean prescribed
by the rules made under the Act in which the
word occurs. As the word prescribed occurs
in the Act 2021 therefore, the rules for
prescribing the extent and manner ought to
have been made under the Act 2021 and
which could have been made only after the
promulgation of the Act 2021 however,
admittedly no such rules have ever been
made by the State under the Act 2021, till
date. Section 33-A of U.P. General Clauses
Act 1904 is extracted as under:-

 "prescribed"
shall
mean
prescribed by rules made under the Act in
which the word occurs.

26. This Court has also noticed that
in counter affidavit filed by the respondentinstitute as well as the State, no rules,
Government Order or the Prescription has
been brought on record which could show
that any rule or procedure is prescribed,
further section 6 of the Act 2021 also
provides that every notification made by the
State Government under the Act shall be laid
as soon as after it is made before both houses
of the State Legislature. Section 6 of the Act
2021 is transcribed as under:-

 "Every notification made by the
State Government under this Act shall be
laid, as soon as may be after it is made,
before
both
Houses
of
the
State
Legislature."

27. The U.P. Public Services
(reservation for Scheduled Caste, Scheduled
Tribe and Other Backward Classes) further,
section 3(5) of the Act 1994 provides that
the State Government for applying the
reservation under sub-section (1) by a
notified order issue a roaster comprising
total cadre strength of the public service.
Section 3(5) of the Act 1994 is reproduced
hereinunder:-

 "The State Government shall for
applying the reservation under subsection
(1), by a notified order, issue a roster
comprising the total cadre strength of the
public service or post indicating therein the
reserve points and the roster so issued shall
be implemented in the form of a running
5 All. Dr. Sanjay Kumar Bhat & Ors. Vs. State of U.P. & Ors.
461
account from year to year until the
reservation for various categories of
persons mentioned in sub-section (1) is
achieved and the operation of the roster and
the running account shall, thereafter, come
to an end, and when a vacancy arises
thereafter in public service or post the same
shall be filled from amongst the persons
belonging to the category to which the post
belongs in the roster."

28. In the provision of section 29-A of
the U.P. General Clauses Act 1904, it is
provided that the word 'notification' or
'public
notification'
shall
mean
a
notification published in the Gazette of the
State and the word 'notified' shall be
construed accordingly. Section 29A of the
Act 1904 is reproduced hereinunder:-

 "notification"
or
"public
notification" shall mean a notification
published in the Gazette of the State, and the
word
"notified"
shall
be
construed
accordingly;

29. Thus, it emerges that the
prescription is to be made by the State
Government by promulgating Rules made
under the Act 2021 by virtue of provision
contained in section 6 of the Act and needs
to be laid before both the houses of
legislature. It is also borne out that as per the
provision of section 3(1) of the Act 2021
read with section 29A of the U.P. General
Clauses Act 1904, the prescription ought to
have published by a notified order in an
official gazette.

30. This Court is also aware about the
judgment and order rendered in case of
Bharat Sanchar Nigam Limited and
Another Vs. BPL Mobile Cellular Limited
and Others (Supra), wherein, it has been held
that ordinarily the word 'prescribed would
mean prescribed by Rules.' When the word
prescribed is not defined, the same would
mean that prescribed in-accordance with law
and not otherwise. Paragraph 45 of the abovesaid judgment is reproduced hereinunder:-

 "For invoking Clauses 4.1 and 19.5
of the licence agreement, we may notice that
the word "prescribed" is not defined. It has not
been defined even in the Telegraph Act. It has
not been defined in the licence. The said
hprovision unlike Clause 18.14 does not use
the words "from time to time". A contract
entered into by the parties, it will bear a
repetition to state, must be certain. It must
conform to the provisions of the Contract Act.
Ordinarily, the word "prescribed" would
mean prescribed by rules. Section 7(2)(ee) of
the Telegraph Act provides for the rulemaking power for the purpose of laying down
the tariff. We may not be understood to be
laying down a law that in absence of any
statutory rule framed under the Telegraph Act,
no contract can be entered into. In absence of
any statutory rule governing the field, the
parties would be at liberty to enter into any
contract containing such terms and conditions
as regards the rate or the period stipulating
such terms as the case may be. The matter
might have been different if the parties had
entered into an agreement with their eyes wide
open that the circular letter shall form part of
the contract. They might have also been held
bound if they accepted the new rates or the
periods either expressly or sub silentio. When
on the basis of terms of the contract, different
rates can be prescribed, the same must be
expressly stated. When the word "prescribed"
is not defined, the same, in our opinion, would
mean that prescribed in accordance with law
and not otherwise."

31. Further in full bench of this Court
in Case of Rajjan Lal Vs. State and
another (Supra), it has been held that
462 INDIAN LAW REPORTS ALLAHABAD SERIES
unless the word prescribed is explained in
the provision, the general sense, as a
meaning would be, 'prescribed by any law
whatsoever.' Thus, reply to the issue no. (a)
is that the respondent-institute proceeded for
appointment, without being any State
prescription, regarding the manner and
extent of applying reservation as per section
3(1) of the Act 2021 more so, the opposite
parties have failed to demonstrate any
procedure or manner as is prescribed by
notified any Rules in the Gazette, as is
prescribed under sections 5 and 6 of the Act
2021, thus, the issue (a) is replied in
negative.

32. Coming to the issue (b) as
framed above, it is apparent that posts
advertised vide impugned advertisement
dated
01.12.2023
of
the
Assistant
Professors,
Associate
Professors
and
Professors, which are higher in ranking than
that of a Senior Resident and experience of
three year as a senior resident is essential
eligibility for the post to become Assistant
Professor and three years as Assistant
Professor experience is mandatory to be
eligible for Associate Professors, while
three
years
as
Associate
Professor
experience is mandatory to be eligible for
Additional Professors and further the
experience of four years as Additional
Professor is required for the post of
Professor.

33. Fact remains that the salary of
the Senior Resident is around 1 lakh per
month,
in
all
most
every
Government/Private
institution
and
therefore, there can be no applicant
belonging to EWS category, who would be
eligible for applying for the post of Assistant
Professor. As per the provision of Section
2(b) of the Act 2020, it is provided that
'Economically Weaker Section of Citizens'
means persons belonging to Economically
Weaker Section as defined in the office
memorandum dated 19.01.2019 of DoPT,
Ministry of Personnel and Public Grievance
and Pension, Government of India and as
per the same, the persons whose family has
gross annual income is below Rs.8 lacs are
to be identified as Economically Weaker
Section for the benefit of reservation.
Paragraph 2 of the office memorandum
dated 19.01.2019 is extracted as under:-

 "Persons who are not covered
under the existing scheme of reservations
for the Scheduled Castes, the Scheduled
Tribes and the Socially and Educationally
Backward Classes and whose family has
gross annual income below Rs. 8.00 lakh are
to be identified as EWSs for the benefit of
reservation. Family for this purpose will
include the person who seeks benefit of
reservation, his/her parents and siblings
below the age of 18 years as also his/her
spouse and children below the age of 18
years. The income shall include income from
all sources i.e. salary, agriculture, business,
profession etc. and it will be income for the
financial year prior to the year of
application. Also persons whose family
owns or possesses any of the following
assets shall be excluded from being
identified as EWSs, irrespective of the family
income
i 5 acres of Agricultural Land and
above;
ii. Residential flat of 1000 sq. ft. and
above:
iii. Residential plot of 100 sq. yards
and above in notified municipalities:
 iv. Residential plot of 200 sq.
yards and above in areas other than the
notified municipalities."

34. In fact, the respective applicants
for the aforesaid positions of the Associate
5 All. Dr. Sanjay Kumar Bhat & Ors. Vs. State of U.P. & Ors.
463
Professors,
Additional
Professors
and
Professors cannot belong to EWS category,
by virtue of the experience required for the
same, thus, there is no occasion of
advertising the EWS category post for
Assistant Professors, Associate Professors
and Professors.

35. The circular bearing no. M.I.-
3/2023 dated 24.11.2023 issued by the
Director General Medical Education and
Training, with regard to employment of
candidates
under
the
compulsory
government service bond was laid down,
which categorically provides that annual
income of the Junior Resident/Senor
Resident,
working
in
the
Government/Autonomous
Medical
Colleges/Institutes of the State is more than
Rs. 8 lacs, which is the eligibility prescribed
by the Government Orders related to EWS
category, therefore, they do not fall within
the EWS category thus, the seats reserved
for EWS category of the vacant post of the
Senor Resident have been included in the
unreserved category and the benefit of
reservation of EWS category will not be
allowed to any candidate. The circular dated
24.11.2023 is extracted as under:-

 "शासनादेश सुंख्या-85 / 2019/2625/71-12019-िी-71/2011टी०सी० गदनाुंक 16 अक्टूबर 2019 द्वारा
प्रदेश के रािकीय मेगडकल कालेिों में कायषरत िूगनयर एवुं सीगनयर।
रेिीडेण्ट गचगकत्सकों के वेतनमान अगभवृगवव / सुंशोधन करते हुए
िूगनयर रेिीडेण्ट को ग्रेड वेतन रू0 5400/- तथा सीगनयर रेिीडेण्ट
को ग्रेड वेतन रू0 6600/- तथा अन्द्य अनुमन्द्य भत्ते राज्य सरकार
द्वारा गनधाषररत दरों पर अनुमन्द्य गकया िया हैं।

उक्त से स्पष्ट है गक प्रदेश के रािकीय / स्वशासी
मेगडकल कालेिों / सुंस्थानों में कायषरत िूगनयर रेिीडेण्ट / सीगनयर
रेिीडेण्ट की वागर्षक आय रु 8.00 लाख से अगधक होती है, िो
आगथषक रूप से कमिोर श्रेणी (E.W.S.) से सुंबुंगधत शासनादेश
द्वारा गनधाषररत अहषता की पररगध में नहीं आते हैं। अतः उक्त वगणषत
तथ्यों के दृगष्टित सीगनयर रेिीडेण्ट के ररक्त पदों की ई०डब्लू०एस०
श्रेणी हेतु आरगित सीटों को अनारगित श्रेणी में सगम्मगलत गकया िया
है तथा एउक्त काउुंगसगलुंि हेतु गकसी भी अभ्यथी को ई०डब्लू०एस०
श्रेणी के आरिण का लाभ अनुमन्द्य नहीं होिाI"

36. Further the Government Order
bearing No. I/475904 of 2024 dated
18.01.2024 is also issued wherein, it is
provided that the seats reserved for the EWS
category
of
Assistant
Professors
in
DM/MCH occurs, will be filled up by the
candidates of unreserved category and the
reason is assigned that such students of
DM/MCH or having more than 8 lacs of
annual income. It is noticeable that the
Government Order dated 18.01.2024 and
circular dated 24.11.2023 have been issued
by the Director General Medical Education
himself and therefore, there can be no any
other view that these orders are irrelevant for
the purposes of considering the EWS
reservation in the institute.

37. Ultimately, the reservation for
EWS category is not only creating
unnecessary confusion in the mind of the
candidates, but it also changes the texture of
the roaster so applied in the impugned
advertisement dated 01.12.2023, so the
reply to issue no. (b) is that the EWS
reservation ought not to have been applied
in the impugned advertisement dated
01.12.2023 on account of peculiar eligibility
criteria for the post, so advertised, which
per-supposes gross annual income to be
more than almost Rs. 12 lacs, while any
candidate having gross annual family
income of more than eight lacks, is not covered
within the definition of EWS as per the Act
2020, more so, in the event that the institute is
proceedings in absence of any procedure or
manner prescribed by the State Government,
including the applications of EWS category,
while notifying any rule, resultantly, the issue
no. (b) is also decided in negative.
464 INDIAN LAW REPORTS ALLAHABAD SERIES

38. While coming to the issue no. (c),
section 3(2) of Act 1994 is reproduced
herein under:-
 "If, in respect of any year of
recruitment any vacancy reserved for any
category of persons under sub-section (1)
remains unfilled, such vacancy shall be
carried forward and be filled through
special recruitment in that very year or in
succeeding year or years of recruitment as a
separate class of vacancy and such class of
vacancy shall not be considered together
with the vacancies of the year of recruitment
in which it is filled and also for the purpose
of determining the ceiling of fifty per cent
reservation of the total vacancies of that
year notwithstanding anything to the
contrary contained in sub- section (1);] 23
where a suitable candidate belonging to the
Scheduled Tribes or Scheduled Castes, as
the case may be, is not available in a
recruitment either under sub-section (1) or
sub-section (2) the vacancy reserved for him
may be filled in such recruitment, from
amongst the suitable candidates belonging
to the Scheduled Castes or Scheduled
Tribes, as the case may be, and as soon as a
vacancy earmarked in the roster referred to
in sub-section (5) for the Scheduled Castes
or Schedule Tribes, as the case may be,
arises such person belonging to Scheduled
Castes or Scheduled Tribes, as the case may
be, shall be adjusted against such vacancy
of his own category.]"

39. The above-said provision
speaks that for the unfilled vacancies the
employer state is at liberty to fill up the
backlog vacancies by means of special
drive. However, there is no pari-materia
provision in the U.P. Public Services,
Reservation for EWS Act 2020 which interalia governs the manner in which EWS
reservation is to be provided, rather section
3(6) of Act 2020, categorically provides that
the unfilled vacancies of the EWS category
are not ought to be left vacant and ought to
be filled up by unreserved candidates.
Section 3(6) of the Act 2020 is reproduced
hereinunder:-

 "section 3 (6) Where in any
particular recruitment year any vacancy
earmarked under sub-section (1) for
Economically Weaker Sections cannot be
filled up due to non availability of a suitable
candidate
belonging
to
Economically
Weaker Sections such vacancies shall not be
carried forward to the next recruitment year
as backlog and the said vacancy shall be
filled
by
the
eligible
candidates
of
unreserved category."

40.

From
perusal
of
the
advertisement dated 01.12.2023, it indicates
that the same is an special recruitment
advertisement, but in absence of any
provision of the Special Recruitment drive
in the Act 2020, the same is unsustainable
and against the law therefore, the reply to the
issue no. (c) is that along with the backlog
vacancies
(Special
Recruitment)
for
reserved categories i.e. SC,ST and OBC
vacancies, but the vacancies for EWS
category could not have been advertised in
the Special Recruitment carried out vide
impugned advertisement dated 01.12.2023
and further, without there being any rules or
any procedure prescribed with respect to the
'Special Recruitment,' the same could not
have been done.

41. Now dealing the issue no. (d), it
is apparent that there is anomaly which
makes the recruitment exercise initiated by
the respondent institute vide impugned
advertisement dated 01.12.2023, faulty, as
in the year 2020 guidelines were issued by
the then Medical Council of India and later
on re-constituted as National Medical
5 All. Krishna Kumar Shukla Vs. State of U.P. & Ors.
465
Commission (hereinafter referred to
as 'NMC') and based on the 2020
guidelines, the respondent no. 3, vide
Government
Order
dated
30.11.2022
determined the sanctioned strength of
various faculty positions in the respondent
institute subsequently, the above noted
guidelines
are
superseded
and
new
guidelines have ben issued vide the order
dated 16.08.2023 and if, those are applied,
there would be material changes as per the
guideline of 16.08.2023. The sanctioned
strength of institute needs to be reconsidered
by the State Government as the earlier
Government Order dated 30.11.2022 has
been
superseded
and
therefore,
the
standardization Government Order issued
subsequently, would materially change the
sanctioning strength of the faculty members.
Thus, this Court finds that applying the
standardization Government Order dated
30.11.2022, which is said to be based on old
MCI guidelines of 2020 is an incorrect and
erroneous approach as subsequently, the
new guidelines have been issued on
16.08.2023, while superseding the earlier
one.

42. Apart from abve, this Court also
noticed that on 06.08.2018, Dr Chandra
Kant Pandey was appointed as Professor in
the department of critical care against an
unreserved category post of Professor and
after some period of time, Dr Pandey
resigned and the fact has not been denied
that huge grant has been accepted for
construction of Critical Care Unit, but no
post is advertised for Critical Care Unit
department, though, the aforesaid fact is
disputed by counsel for the Institute, while
stating that there is no sanctioned post in
critical care department in the institute and
therefore, the institute is not empower to
advertise any vacancy, without being any
sanctioned post .

43. In view of the aforesaid
submissions and discussion, this Court finds
merit in the writ petition, thus, the impugned
advertisement dated 01.12.2023 and the
rejection order dated 19.01.2024 issued by
respondent no. 6 are hereby quashed.

44. The writ petition is allowed
accordingly.

45. It is open to the 'Institute' to
issue a fresh advertisement, while strictly
following the provisions, relevant laws and
seeking
instructions
from
the
State
Government regarding the procedure and
manner, mandated to be prescribed under
section 3(1) of the 'Act 2021.'
----------
(2024) 5 ILRA 465
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.05.2024

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ A No. 1736 of 2024

Krishna Kumar Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amrendra Nath Tripathi

Counsel for the Respondents:
C.S.C., Raj Kr. Singh Suryavanshi, Surendra
Pratap Singh