# Gaurav Vats v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 54
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-12
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-vats-v-state-of-u-p-ors-48914
- **Pages:** 5

## Headnote

(State Law Officer)

A. Service Law - Constitution of India -
Article 14 & 15 - Appointment given to
the women candidates on account of
miscalculating
the
horizontal
reservation - No allegations of fraud or
misrepresentation against the women
candidates - Error of recruiting agency
- Effect on the validity of appointment
- Held, it is the undisputed case that
the selected women candidates were
not responsible for the error in wrong
calculation of horizontal reservation.
They were not responsible for the
irregularities so committed. They had
undergone the training and had worked
for some time - Division Bench found
no illegality in adjusting the appointed
women candidates against the available
vacancies - Anmol Kumar Tiwari's case
followed. (Para 8 and 11)
Special Appeal dismissed. (E-1)
List of Cases cited:-

## Text

54 INDIAN LAW REPORTS ALLAHABAD SERIES
the controversy or dispute between the parties
so as to be deemed to have been issued under
Article 226 of the Constitution of India. This
is not the position in the case at hand.

20. In view of the above, while holding the
Intra Court Appeal to be maintainable, we set
aside the order dated 10.3.2022 passed by the
learned Single Judge in Contempt Application
(Civil) No. 5344 of 2021 (Prem Shankar vs.
Rajeev Pandey, Special Land Acquisition
Officer/City Magistrate, Bareilly and another) and
dismissing
the
Contempt
Application.
Accordingly, the impugned order dated 10.3.2022
is set aside and the Contempt Application (Civil)
No. 5344 of 2021 is dismissed.

21. The Intra Court appeal is allowed.
----------
(2022) 8 ILRA 54
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal No. 229 of 2021 (O & M)
with other connected cases

Gaurav Vats ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Mr. Anoop Trivedi (Senior Advocate), Mr.
Vibhu Rai, Mr. Hari Om, Mr. Akash Khare

Counsel for the Respondents:
Mr. Manish Goyal, (A.A.G.), Ms. Akansha
Sharma (Standing Counsel), Sri Ankit Gaur
(State Law Officer)

A. Service Law - Constitution of India -
Article 14 & 15 - Appointment given to
the women candidates on account of
miscalculating
the
horizontal
reservation - No allegations of fraud or
misrepresentation against the women
candidates - Error of recruiting agency
- Effect on the validity of appointment
- Held, it is the undisputed case that
the selected women candidates were
not responsible for the error in wrong
calculation of horizontal reservation.
They were not responsible for the
irregularities so committed. They had
undergone the training and had worked
for some time - Division Bench found
no illegality in adjusting the appointed
women candidates against the available
vacancies - Anmol Kumar Tiwari's case
followed. (Para 8 and 11)
Special Appeal dismissed. (E-1)
List of Cases cited:-
1. Vikas Pratap Singh & ors. Vs St. of
Chhattisgarh & ors.; (2013) 14 SCC 494
2. Anmol Kumar Tiwari & ors. Vs St. of
Jharkhand & ors.; (2021) 5 SCC 424
(Delivered by Hon'ble Rajesh Bindal, C.J.)

1. This order will dispose of a bunch
of 17 Special Appeals bearing Special
Appeal Nos. 229 and 320 of 2021, Special
Appeal Defective Nos. 428, 496, 497, 498,
499, 502, 503, 505, 509, 533, 535, 579,
580, 582 and 926 of 2021.

2. Vide common judgment passed by
learned Single Judge dated March 24,
2021, a bunch of 189 writ petitions led by
Writ-A No. 43064 of 2014, titled as
Gaurav Vats Vs. State of U.P. and others,
was decided. The appeals have been filed
only in 17 cases.

3. The brief facts of the case are that the
process for recruitment of 35,000 Police
Constables was initiated in the year 2009.
The result was declared on May 17, 2010.
There
was
certain
issue
regarding
8 All. Gaurav Vats Vs. State of U.P. & Ors.
55
horizontal reservation. Writ petition bearing
Writ-A No. 38299 of 2010, titled as Rajeev
Kumar Vs. State of U.P. and others, was
filed in this Court which was dismissed vide
order dated July 5, 2010. Against the
aforesaid order, Special Appeal No. 1120 of
2010 was filed which was disposed of by
judgment dated August 3, 2010. Finding error
in providing horizontal reservation, the matter
was referred to the State for fresh calculation
of vacancies and appointment of the
candidates. Against the aforesaid order, the
State filed Special Leave Petition No. 32344
of 2010 which was dismissed by the Hon'ble
Supreme Court vide order dated July 12,
2013. Thereafter, an order was passed by the
State on February 24, 2014, admitting that
there was error in appointment of 856 women
candidates in the process of providing
horizontal reservation. Though the candidates
who were entitled to get benefit were given
the same, however, it was directed that the
women candidates already appointed be
adjusted against the available vacancies.

4. The aforesaid order was impugned in
the writ petitions, giving rise to the present
appeals.

5. The arguments raised are that the
vacancies for the year 2009 having been
increased from 35,000 to 35,844, the
reservation for each of the category is
required to be provided in terms thereof and
all women candidates could not be appointed
against the increased vacancies, as the same
will defeat the very principle for providing
reservation and as a result of which the
percentage of reservation and especially the
quota in women category will cross the
maximum limit.

6. On the other hand, learned counsel
for the State submitted that after the
judgment of this Court in the first round,
the issue had to be resolved. The women
candidates, who were appointed in excess
on account of wrong calculation of
vacancies while providing for horizontal
reservation had, in fact, been provided
training and were serving the Department.
Hence, instead of shunting them out, they
were
adjusted
against
the
available
vacancies. Over all, there is no disturbance
to the quota. While making adjustments of
these
candidates,
the
principle
for
reservation may not be applicable strictly.
There was no fault of the women
candidates, who were given appointment
on account of error committed by the
recruiting agency.

7. After hearing learned counsel for
the parties and considering the peculiar
facts and circumstances of the case, in our
view, the order passed by the learned Single
Judge does not call for interference by this
Court in the present appeals. It is not in
dispute that on account of error committed
by the recruiting agency, there was some
miscalculation
of
vacancies
while
providing horizontal reservation, which
resulted in excess appointment of women
candidates.
The
advertisement
for
recruitment of Police Constables was
issued in the year 2009. The result was
declared on May 17, 2010 and thereafter
the selected candidates were sent for
training.

8. After the challenge to the selection
process attained finality before the Hon'ble
Supreme
Court
when Special
Leave
Petition filed by the State was dismissed on
July 12, 2013, corrective steps were taken
by the State. Entire vacancy position and
horizontal reservation were recalculated, as
a result of which 856 male candidates, who
were entitled to be appointed, were given
appointments. As against that, the 856
56 INDIAN LAW REPORTS ALLAHABAD SERIES
female candidates, who were wrongly
given appointment not on account of any
omission or commission by them, were
directed to be adjusted against the available
vacancies. It was in terms of law laid down
by the Hon'ble Supreme Court in Vikas
Pratap Singh and others Vs. State of
Chhattisgarh and others, (2013) 14 SCC
494, which now stands reiterated in Anmol
Kumar Tiwari and others Vs. State of
Jharkhand and others, (2021) 5 SCC
424. In the aforesaid judgment, the Hon'ble
Supreme Court observed that in case
appointment of the candidates in excess
was on account of error committed by the
State authorities and no fault on part of the
candidates, and they have served the
department for sometime, then selection be
not set aside. They be put at the bottom of
the list. It is the undisputed case that the
selected women candidates were not
responsible
for
the
error
in
wrong
calculation of horizontal reservation. They
were not responsible for the irregularities
so committed. They had undergone the
training and had worked for some time.
There were no allegations of fraud or
misrepresentation
against
women
candidates who were appointed in excess of
the quota while calculating horizontal
reservation. Hence, they were allowed to
continue.

9.

Another
issue
which
was
considered in the aforesaid judgment was
the claim of certain candidates who
submitted that they had secured marks
more than the candidates who were
adjusted. The argument raised by them was
not found to be meritorious, for the reason
that all the advertised vacancies stood filled
up as in recalculation, 844 women
candidates were found to be appointed in
excess
of
their
quota
by
wrongly
calculating the horizontal reservations. As
against those, male candidates were given
appointments. The women candidates, who
were
initially
given
the
benefit
of
horizontal reservation, though erroneously,
were
adjusted
against
available/future
vacancies. It was in the peculiar facts of the
case that the selection process in the case
before the Hon'ble Supreme Court was
initiated in the year 2008 and subsequent
thereto, during the intervening period, there
had
been
large
scale
selection
and
appointments.

10. Relevant paragraphs 11 and 12 of
the judgment in Anmol Kumar Tiwari's
case (supra) are extracted below:-

"11. Two issues arise for our
consideration. The first relates to the
correctness of the direction given by the
High Court to reinstate the writ petitioners.
The High Court directed reinstatement of
the writ petitioners after taking into account
the fact that they were beneficiaries of the
select list that was prepared in an irregular
manner. However, the High Court found
that
the
writ
petitioners
were
not
responsible for the irregularities committed
by the authorities in preparation of the
select list. Moreover, the writ petitioners
were appointed after completion of training
and worked for some time. The High Court
was of the opinion that the writ petitioners
ought to be considered for reinstatement
without affecting the rights of other
candidates who were already selected. A
similar situation arose in Vikas Pratap
Singh's case, where this Court considered
that the appellants therein were appointed
due to an error committed by the
respondents in the matter of valuation of
answer scripts. As there was no allegation
of fraud or misrepresentation committed by
the appellants therein, the termination of
their services was set aside as it would
8 All. Gaurav Vats Vs. State of U.P. & Ors.
57
adversely affect their careers. That the
appellants
therein
had
successfully
undergone training and were serving the
State for more than 3 years was another
reason that was given by this Court for
setting aside the orders passed by the High
Court. As the writ petitioners are similarly
situated to the appellants in Vikas Pratap
Singh case, we are in agreement with the
High Court that the writ petitioners are
entitled to the relief granted. Moreover,
though on pain of contempt, the writ
petitioners have been reinstated and are
working at present.

12. The second issue relates to
the claim of the intervenors in the writ
petitions for appointment. There is no
doubt
that
selections
to
public
employment should be on the basis of
merit. Appointment of persons with lesser
merit ignoring those who have secured
more marks would be in violation of the
Articles 14 and 16 of the Constitution of
India. The intervenors
in the writ
petitions admittedly have secured more
marks than the writ petitioners. After
cancellation of the appointments of the
writ petitioners, 43 persons have been
appointed from the revised select list.
Those 43 persons have secured more
marks than the intervenors. By the
appointment of 43 persons, the number of
posts that were advertised i.e. 384 have
been filled up. The intervenors have no
right for appointment to posts beyond
those advertised. The contention on
behalf of the intervenors in the writ
petitions is that they cannot be ignored
when relief is granted to the writ
petitioners who were less meritorious
than them. We are unable to agree. Relief
granted to writ petitioners is mainly on
the ground that they have already been
appointed and have served the State for
some time and they cannot be punished
for no fault of theirs. The intervenors are
not similarly situated to them and they
cannot seek the same relief. The other
ground taken by the intervenors in the
writ petitions before us is that relief was
denied to them only on the basis of a
wrong statement made on behalf of the
State Government that there were no
vacancies. No doubt, the intervenors have
placed on record material to show that
there was no shortage of vacancies for
their appointment. One of the reasons
given by the High Court for not granting
relief to the intervenors is lack of
vacancies. However, we are not inclined
to direct appointment of the intervenors
as selections in issue pertain to an
advertisement
issued
in
2008.
Subsequently, selections to posts of SubInspectors have been held and a large
number of persons were appointed. The
number of posts advertised in 2008 is 384
and the intervenors have no right for
appointment for posts beyond those
advertised. They cannot claim any parity
with the writ petitioners."

11. In view of the aforesaid
authoritative pronouncement of the law on
the subject and finding that the women
candidates who were granted appointments
on account of error committed by recruiting
agency while calculating the horizontal
reservation, had undergone training and
were working for quite some time before
the error was corrected in terms of the
order passed by this Court, it was in special
facts and circumstances of the case. The
claim of the appellants to appoint them
while taking the vacancies as 35,844 as
against 35,000 advertised and providing the
reservation and appointment in terms
thereof, cannot be accepted at this stage, as
the selection and appointment pertain to the
year 2009-10 and the vacancies advertised
58 INDIAN LAW REPORTS ALLAHABAD SERIES
were 35,000, which stood filled up. More
than a decade has passed since then and
during the intervening period, number of
other selections have been made.

12. For the reasons mentioned above,
we do not find any merit in the present
appeals.
The
same
are,
accordingly,
dismissed.
----------
(2022) 8 ILRA 58
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Special Appeal No. 306 of 2022

Vice
Chairman,
ABSS
Institute
of
Technology, Meerut ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Vibhu Rai, Sri Abhinav Gaur, Sri Anoop
Trivedi (Senior Adv.)

Counsel for the Respondents:
C.S.C., Sri Ajal Krishna, Sri Rohit Pandey,
Sri Vijay Tripathi

A. Service Law - Constitution of India -
Article 226 - Writ - Termination order
challenged - Interim order passed staying
the termination order - Permissibility -
Interim order, to what extent, can be
passed - Principle laid down - An interim
order can be passed by a Court of law only
in aid of a final relief prayed for. An
interim order ought not to be passed by a
Court which is in the nature of a final
relief itself. if such an order is passed
virtually
nothing
will
remain
to
be
adjudicated at the final hearing stage.
(Para 3)
Special Appeal allowed. (E-1)
List of Cases cited:-
1. St. of U.P. & ors. Vs Sandeep Kumar Balmiki
& ors.; 2009 (17) SCC 555
2. Delhi Cloth & General Mills Co. Ltd. Vs
Rameshwar Dayal; AIR 1961 SC 689
3. U.P. Rajya Krishi Utpadan Mandi Parishad &
ors. Vs Sanjiv Rajan; 1993 Supp (3) SCC 483
4. St. of Har. Vs Suman Dutta; (2000) 10 SCC
311
(Delivered by Hon'ble Pritinker Diwaker, J.
&
Hon'ble Ashutosh Srivastava, J.)

1. This Intra Court Appeal has been
filed questioning the interlocutory order
dated 23.3.2022 passed by the learned
Single Judge in Writ-A No. 2695 of 2022
(Dr. Sanjay Kumar Sharma vs. State of U.P.
and 4 others) whereby and whereunder
entertaining the writ petition against the
termination order dated 6.4.2021 passed by
the Vice Chairman Abbs Institute of
Technology, Meerut a private educational
institution and inviting a response to the
writ petition has stayed the termination
order dated 6.4.2021 and permitted the writ
petitioner/respondent to perform his duty as
he was discharging earlier and shall be paid
his salary which shall be subject to final
outcome.

2. A perusal of the impugned order of
the learned Single Judge reveals that while
the writ petition has been kept pending by
inviting counter and rejoinder affidavits the
termination order dated 6.4.2021 passed by
the
appellant
who
was
arrayed
as
respondent No.2 in the writ petition has
been
stayed
with
further
direction
permitting the petitioner/respondent to
perform his duties and paid salary, the
learned Single Judge has virtually granted