# Gulab Dutt Dubey v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 587
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-14
- **Case number:** Writ A No. 12479 of 2021
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gulab-dutt-dubey-v-state-of-u-p-ors-51703
- **Pages:** 8

## Headnote

Service Law - Constitution of India,1950 -
Article 311(2)(a) -Dismissal on conviction in
criminal case - Requirement of considering
conduct.

Dismissal of petitioner, a Lekhpal, solely on
ground of conviction under Sections 302 and
506(2) IPC - Disciplinary authority failed to
consider conduct leading to conviction - Mere
conviction not sufficient to impose major penalty
- Order of dismissal unsustainable. (Paras 1013)

Service Law - Retirement during pendency of
writ petition - Effect on power of disciplinary
authority.
Petitioner
attained
superannuation
on
31.10.2021 - After retirement, no employeremployee relationship subsists - Disciplinary
authority cannot be given liberty to reconsider
punishment - Court itself to mould relief. (Paras
14, 15)

Service Law - Post retiral dues - Principle of "no
work, no pay."

Petitioner entitled to all post-retiral dues with
continuity of service - Salary for period between
dismissal
(13.08.2010)
and
retirement
(31.10.2021) denied on principle of "no work,
no pay" - Period, however, to be counted for
retiral benefits. (Para 15)

Held : Dismissal, appellate and revisional orders
quashed - Petitioner entitled to post-retiral
benefits with continuity, but without back
wages. (Paras 15-18)

Writ Petition Allowed.

Orders dated 13.10.2010, 28.02.2020 and
19.03.2021 quashed. Respondents directed to
ensure payment of all post-retiral dues within
two months.

CASE LAW DISCUSSED-
588 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

3 All. Gulab Dutt Dubey Vs. State of U.P. & Ors.
587
the aforesaid orders. The Tribunal recorded
that no claim petition was filed before the
Tribunal within one year and there was
delay of about six years in filing the claim
petition, therefore, the same was dismissed
on the ground of delay at the admission
stage itself. So far as the present petition is
concerned, the Stamp Reporter has reported
laches of 7 years and 29 days in filing the
present petition on the date of reporting on
18.02.2011. The explanation submitted by
the petitioner has already been considered
by the Court on the sole ground that the
petiton was pending for last about 13 years.

23. In this background of the case we
find that there was no procedural defect in
conducting the enquiry; finding of facts
have been recorded that the petitioner was
found lying in police uniform in a drunken
state at Hapur Bus Stand near Tanga Stand
and Doctor has also certifying the same.
The petitioner in spite of sufficient notice
has not come forward during enquiry
proceeding to dislodge the prosecution
case. He was also given opportunity of
hearing by the disciplinary authority,
however, he did not come forward to show
cause written or oral. We, therefore, do not
find any legal infirmity in the entire
procedure.
----------
(2024) 3 ILRA 587
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.03.2024
BEFORE
THE HON'BLE MANISH KUMAR, J.

Writ A No. 12479 of 2021

Gulab Dutt Dubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amarendra Pratap Singh

Counsel for the Respondents:
C.S.C.

Service Law - Constitution of India,1950 -
Article 311(2)(a) -Dismissal on conviction in
criminal case - Requirement of considering
conduct.

Dismissal of petitioner, a Lekhpal, solely on
ground of conviction under Sections 302 and
506(2) IPC - Disciplinary authority failed to
consider conduct leading to conviction - Mere
conviction not sufficient to impose major penalty
- Order of dismissal unsustainable. (Paras 1013)

Service Law - Retirement during pendency of
writ petition - Effect on power of disciplinary
authority.
Petitioner
attained
superannuation
on
31.10.2021 - After retirement, no employeremployee relationship subsists - Disciplinary
authority cannot be given liberty to reconsider
punishment - Court itself to mould relief. (Paras
14, 15)

Service Law - Post retiral dues - Principle of "no
work, no pay."

Petitioner entitled to all post-retiral dues with
continuity of service - Salary for period between
dismissal
(13.08.2010)
and
retirement
(31.10.2021) denied on principle of "no work,
no pay" - Period, however, to be counted for
retiral benefits. (Para 15)

Held : Dismissal, appellate and revisional orders
quashed - Petitioner entitled to post-retiral
benefits with continuity, but without back
wages. (Paras 15-18)

Writ Petition Allowed.

Orders dated 13.10.2010, 28.02.2020 and
19.03.2021 quashed. Respondents directed to
ensure payment of all post-retiral dues within
two months.

CASE LAW DISCUSSED-
588 INDIAN LAW REPORTS ALLAHABAD SERIES
1. U.O.I. Vs Tulsiram Patel, AIR 1985 SC 1416

2. Divisional Personnel Officer, Southern Railway
Vs T.R. Chellappan, (1976) 3 SCC 190

3. Shankar Das Vs U.O.I., 1985 (2) SCR 358

4. St. of Jharkhand Vs Jitendra Kumar
Srivastava, AIR 2013 SC 3383

5. L.I.C. of India Vs Mukesh Poonamchand
Shah, Civil Appeal No. 1804 of 2020

6. Shyam Narain Shukla Vs St. of U.P., 1988 (6)
LCD 530

7. Ratan Singh Vs St. of U.P., (2013) 11 ADJ
352

8. Udai Pratap Singh Vs St. of U.P., 2014 (32)
LCD 779

9. Shambhu Nath Yadav Vs St. of U.P., 2016 (4)
ADJ 276

10. Rajesh Dwivedi Vs St. of U.P., 2018 (36)
LCD 1047

11. Ram Kishan Vs St. of U.P., (2020) 1 ADJ 862

12. Murari Lal Rathore Vs St. of U.P., 2021 (6)
ALJ 622

13. Vishwanath Vishwakarma Vs St. of U.P.,
Writ-A No. 4422 of 2015, decided on 18.09.2023
(All HC)

(Delivered by Hon'ble Manish Kumar, J.)

1. The present writ petition has been
preferred for quashing of the impugned
dismissal order dated 13.10.2010, for
quashing of the appellate order dated
28.02.2020 and for quashing of the
impugned
revisional
order
dated
19.03.2021.

2. Learned counsel for the petitioner
has submitted that the petitioner was
initially appointed on the post of Untrained
Lekhpal in the year 1980 and after passing
the Lekhpal School Examination, the
petitioner was appointed to the post of
Lekhpal regularly in the year 1984.

3. During the service period, the
petitioner
has
been
convicted
under
Sections 302 and 506 (2) IPC. After the
conviction, the impugned dismissal order
has been passed under Article 311(2)(a) of
the Constitution of India merely on the
basis that the petitioner has been convicted
in a criminal case.

4. It is submitted that the
impugned order of dismissal has been
passed by the disciplinary authority without
applying its mind whereas as per the law
settled by catena of judgments of the
Hon'ble Supreme Court as well as this High
Court that the disciplinary authority has to
consider whether the conduct of the
concerned government servant is such as
justifies the penalty of dismissal, removal
or reduction in grade which is not
considered while dismissing the services of
the
petitioner.
In
support
of
his
submissions, learned counsel for the
petitioner has relied upon the judgments of
Hon'ble Apex Court passed in the cases of
Union of India and another vs. Tulsiram
Patel : AIR 1985 SCC 1416, State of
Jharkhand and others vs. Jitendra Kumar
Srivastava and another reported in AIR
2013 SC 3383 as well as the judgments of
this Court in the cases of Shyam Narian
Shukla vs. State of U.P., 1988 6 LCD 530,
Ratan Singh v. State of U.P. and others,
[(2013) 11 ADJ 352], Udai Pratap Singh v.
State of U.P., [(2014) 32 LCD 779],
Shambhu Nath Yadav vs. Stae of U.P.,
[2016 (4) ADJ 276], Rajesh Dwivedi vs.
State of U.P., 2018 (36) LCD 1047, Ram
Kishna vs. State of U.P., (2020) 1 ADJ
862, Murari Lal Rathore vs. State of U.P. :
2021 (6) ALJ 622.
3 All. Gulab Dutt Dubey Vs. State of U.P. & Ors.
589

5. It is further submitted that during
pendency of the present writ petition, the
petitioner after attaining the age of
superannuation has retired from service on
31.10.2021 and due to the dismissal order,
the petitioner has not been paid any post
retiral dues.

6. It is further submitted that the
petitioner is entitled for the post retiral dues
and in support of his submission, the
learned counsel for the petitioner has relied
upon the judgment of the Hon'ble Supreme
Court in the case of State of Jharkhand
and others vs. Jitendra Kumar Srivastava
and another reported in AIR 2013 SC
3383, the judgment of the Hon'ble Apex
Court in Civil Appeal No.1804 of 2020 :
Life Insurance Corporation of India vs.
Mukesh Poonamchand Shah and lastly
relied upon the judgment dated 18.09.2023
passed by this Court in Writ-A No.4422 of
2015
in
the
case
of
Vishwanath
Vishwakarma vs. State of U.P. through
Principal Secretary, Revenue and others
wherein a judgment has been passed after
considering all the aspects as argued and
submitted before this Court and the case of
the petitioner is squarely covered by the
judgment of Vishwanath Vishwakarma
(supra).

7. It is further submitted that appellate
and revisional orders confirming the
impugned order of dismissal has been
passed without application of mind and
against the law.

8. On the other hand, learned State
counsel has submitted that the parity of the
judgment dated 18.09.2023 in the case of
Vishwanath Vishwakarma (supra) prayed
by the petitioner is not applicable in the
present case to the extent that petitioner in
that writ petition was 70 years of age
whereas in the present case, the petitioner
is only about 63 years of age but unable to
distinguish
the
applicability
of
the
judgment otherwise.

9. After hearing learned counsel for
the parties, going through the record and
the judgments cited above by the learned
counsel for the petitioner.

10. As per the law settled by the
Hon'ble Apex Court and this Court relied
by the learned counsel for the petitioner
wherein it has been held that the
disciplinary authority/competent authority
are bound to consider the conduct of the
petitioner, which has led to his conviction
in the sessions trial. This was the condition
precedent for the competent authority to
acquire jurisdiction to impose punishment
of removal from service. However, in the
present case, the impugned order is silent
and does not show consideration of conduct
of the petitioner which has led to his
conviction and then to decide what
punishment is to be inflicted upon him,
therefore, the impugned order cannot be
sustained. In the matter of Rajesh Dwivedi
(Supra), issue before the Court was same as
in
the
present
controversy
and
the
petitioner in said case was convicted under
Sections 147, 148 and 302 IPC. The Court
after considering many judgments has
taken the very same view. Relevant
paragraphs of the said judgment are quoted
hereinbelow:

"10. In view of the settled
proposition of law, as discussed above, a
government employee cannot be dismissed,
removed or reduced in rank merely on the
ground that he has been convicted by a
Court of law. Thus, conviction alone is not
enough to punish a government employee,
but it is conduct of the employee
590 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned, which had led to is conviction
on the basis of which, the government
employee can be punished. Hence, it is
necessary for disciplinary authorities to
consider the conduct of convict government
servant, which had led to his conviction. In
the absence of the same, the order of the
punishment would be bad. Further the
consideration by the disciplinary authority
is required to be recorded in writing.

11. The learned Standing Counsel
has argued that proviso-2 to the Article 311
of the Constitution of India provides that
where a person is dismissed on the ground
of conduct, which has led to his conviction
on a criminal charge or where the
appointing authority is satisfied that it is
not reasonably practicable to hold such an
enquiry, there is no requirement of the
observance of the principles of natural
justice. He has further argued that this
provision is akin to Rule-7 of the U.P.
Government Servant (Discipline & Appeal)
Rules 1999 which also provides that where
any major penalty is imposed on a person
on the ground of conduct which has led to
his conviction on a criminal charge or
where the disciplinary authority is satisfied,
that for the reason to be recorded in
writing, it is not reasonably practicable to
hold an enquiry as per the Rules the order
becomes final. He has also argued that an
employee who has been in Jail for more
than 48 hours, his services are terminated
in accordance with the rules.

12. The argument of the learned
Standing Counsel is patently illegal since
Article 311 of the Constitution of India and
also Rule-7 of the U.P. Government Servant
(Discipline & Appeal) Rules, 1999 clearly
provide that the authority passing the order
of the major punishment, on the ground of
conviction of the employee on a criminal
charge, will have to record his satisfaction
in writing that he is satisfied, after
consideration of the conduct of the
employee which has led to conviction on
the ground of criminal charge, that he
deserves major penalty. Further argument
of the learned Standing Counsel that mere
imprisonment exceeding 48 hours, an
employee becomes liable for termination of
his services as per the Rules is absurd. As
per Rule-4(3) of the U.P. Government
Servant (Discipline & Appeal) 1999, such a
Government deemed to be placed under
suspension w.e.f., the date of his detention.

13. Therefore, it is clear from the
above decisions and the relevant provisions
of law that it is incumbent upon the
authorities to consider the conduct of the
employee which has led to his conviction in
the criminal charge before imposing any
punishment. In the present case, the
impugned order passed by the respondent
No. 2 only states that since the petitioner
has been convicted in the criminal case, he
should be dismissed from service from the
date of the order of conviction. The
respondent No. 2 was required to examine
the conduct of the petitioner which led to
his conviction before imposing the major
punishment upon him. The order suffers
from non application of mind and shows
arbitrary exercise of discretion vested in
the respondent No. 2 by law."

11. Again a similar issue came up
before this Court in the matter of Ram
Kishan (Supra), in which an employee was
convicted under Sections 302 and 134
I.P.C. and this Court after considering many
judgments has taken the very same view.
Relevant paragraphs of the said judgment
are being quoted hereinbelow:

"12. In Shankar Das v. Union of India,
1985 (2) SCR 358, Hon'ble Supreme Court
while referring to power under Clause (a)
of second proviso of Article 311(2) of the
3 All. Gulab Dutt Dubey Vs. State of U.P. & Ors.
591
Constitution of India, has observed as
under:-

"Be that power like every other
power has to be exercised fairly, justly and
reasonably."?

13. Proviso (a) to Article 311 of
the Constitution of India, is an exception to
clause (2) of Article 311, which is
applicable where a person is dismissed or
removed or reduced in rank on the ground
of conduct which has led to his conviction
on a criminal charge. In case of Divisional
Personnel Officer, Southern Railway Vs.
T.R. Chellappan, 1976 (3) SCC 190 (para21), Hon'ble Supreme Court considered
Article 311(2), Proviso (a) and held that
this provision confers power upon the
disciplinary authority to decide whether in
the facts of a particular case, what penalty,
if at all, should be imposed on the
delinquent employee, after taking into
account the entire conduct of the delinquent
employee, the gravity of the misconduct
committed by him, the impact which his
misconduct is likely to have on the
administration
and
other
extenuating
circumstances or redeeming features, if
any, present in the case and so on and so
forth. The conviction of the delinquent
employee would be taken as sufficient proof
of misconduct and then the authority will
have to embark upon a summary inquiry as
to the nature and extent of the penalty to be
imposed on the delinquent employee and in
the course of the inquiry, if the authority is
of the opinion that the offence is too trivial
or of a technical nature it may refuse to
impose any penalty in spite of the
conviction. The disciplinary authority has
the undoubted power after hearing the
delinquent employee and considering the
circumstances of the case to inflict any
major penalty on the delinquent employee
without any further departmental inquiry, if
the authority is of the opinion that the
employee has been guilty of a serious
offence involving moral turpitude and,
therefore, it is not desirable or conducive in
the interests of administration to retain
such a person in service. In Sushil Kumar
Singhal vs. Regional Manager, Punjab
National Bank, 2010 (8) SCC 573 (Paras24 and 25), Hon'ble Supreme Court
explained the meaning of the words 'moral
turpitude' to mean anything contrary to
honesty, modesty or good morals.

14. Thus, in view of the law laid
down by Hon'ble Supreme Court in the
cases of Tulsiram Patel (supra), T.R.
Chellapan (supra) and Shankar Das
(supra), and two Division Bench judgments
of this court in Shyam Narain Shukla
(supra) and Sadanand Mishra (supra), it
can safely be concluded that while
removing the petitioner from service, the
respondents were bound to consider the
conduct of the petitioner, which has led to
his conviction in the session trial. This was
the condition precedent for the competent
authority to acquire jurisdiction to impose
punishment of removal from service.
However,
the
impugned
order
is
unfortunately silent and does not show
consideration of conduct of the petitioner
which has led to his conviction in the S.T.
No. 178 of 2005. It was necessary for the
respondents, while passing the impugned
order, to consider the conduct of the
petitioner leading to his conviction and
then to decide what punishment is to be
inflicted upon him. This has not been done
by the respondent No. 2 while removing the
petitioner from service. Therefore, the
impugned order cannot be sustained and is
hereby quashed."

12. Again one more similar issue was
before this Court in the matter of Murari
Lal Rathore (Supra) in which conviction
was made under Section 302, 120 B and
592 INDIAN LAW REPORTS ALLAHABAD SERIES
149 IPC and petitioner was dismissed from
the service on the very same ground. This
Court after considering in detail has taken
the very same view. Relevant paragraphs of
the said judgment are being quoted
hereinbelow:

"10. The order of dismissal
merely records that petitioner has been
convicted to imprisonment of life in S.T. No.
455 of 208 and is incarcerated in jail
therefore in view of the Government Order
dated 12.10.1979, the petitioner is being
dismissed from service from the date of his
incarceration in jail i.e. 31.10.2015.

14.
The
authoritative
pronouncement of law by Supreme Court in
Tulsi Ram Patel (supra) is consistently
followed and it is by now well settled that
mere conviction in a criminal case would
not lead to automatic dismissal from
service of the government servant. Since
clause (a) to the second proviso to Article
311(2) of the Constitution of India as also
first proviso to rule-7(xii) of the Rules of
1991 are exception to the normal rule of
holding inquiry against the government
servant and even opportunity of hearing is
not required to be given to him, therefore,
the
disciplinary
authority
has
to
scrupulously examine the conduct of the
government servant which led to his
conviction
before
exercising
such
jurisdiction. The nature of guilt established
as also the possible defence available to the
government servant are aspects which
requires consideration at the level of the
disciplinary authority. In the event these
aspects are omitted from consideration, the
order of dismissal itself would be rendered
without jurisdiction.

18. Since the conduct of the
petitioner leading to his conviction has not
been examined by the disciplinary authority
within the laid down parameter as such the
order of dismissal, as affirmed in appeal
and revision cannot be sustained. Orders
impugned dated 1.12.2016, 21.12.2016 and
18.3.2016 accordingly are liable to be
quashed."

13. In the present case also the
impugned order of dismissal has been
passed only on the ground that the
petitioner has been convicted in a criminal
case but there is no opinion recorded by the
disciplinary authority that the employee has
been guilty of serious offence involving
moral turpitude, therefore, it is not
desirable or conducive in the interest of
administration to retain such person in
service.

14. As far as the parity of payment of
post retiral dues as per the judgment in the
case of Vishwanath Vishwakarma (supra)
which was granted to the petitioner in that
writ petition by this Court and refused to
grant liberty to the disciplinary authority to
pass a fresh order on the ground that now
there is no relation of employer and
employee between the petitioner and the
respondents after the retirement of the
petitioner cannot pass or hold any enquiry
by placing reliance on the judgment in the
case of Murari Lal Rathore (supra) the
Court after considering this issue has also
held as under:

"19.
Ordinarily,
when
such
orders are quashed a liberty ought to be
granted to the disciplinary authority to
pass a fresh order while considering
relevant factors i.e. conduct of the
employee, gravity of charges and the
materials available against him etc. This
course, however, would not be desirable or
even permissible in the facts of the present
case since the petitioner has attained the
age of superannuation on 31.12.2018 and
3 All. Gulab Dutt Dubey Vs. State of U.P. & Ors.
593
the contract of employment has come to an
end.

24.
A
conspectus
of
above
observations made by the Supreme Court
would clearly reveal that unless there exists
an enabling provision either in the
applicable service rules or any other
provision of law it would not be open for
the disciplinary authority to pass an order
in respect of contract of service after the
employee
has
attained
the
age
of
superannuation.

25. This Court in Bhagirathi
Singh Vs. State of U.P. and others, 2018
(8) ADJ 538 has also observed as under in
Para-18:-

"18. It is settled legal position
that
the
employer
and
employee
relationship is dependant only upon the
contract of employment. The moment, the
contract comes to end as the person is
retired from service on attaining certain
age under the rules, the relationship comes
to an end. In the event of employer of
employee relationship coming to an end,
the rules have to specifically provide for
continuation of proceedings in the first
instance and that too with the sanction of
higher authorities in the second instance
because it will be seen as exceptional
circumstance where disciplinary authority
would record that for reasons genuine and
convincing the disciplinary proceedings
could not be concluded and, therefore, it is
required that the proceedings be continued
even after retirement, but there is no such
provision under the rules governing the
disciplinary proceedings. In this context,
learned counsel for the respondent could
not point out any rule, circular or executive
instructions even, which may provide for
continuance of disciplinary proceedings
even after the retirement of the petitioner or
any other employee of the corporation.
Then again, the question will be that how a
punishment is to be imposed as the
punishment is awarded only against an
employee unless and until employer and
employee relationship exists, the order of
punishment upon a retired employee cannot
be imposed except otherwise provided
under the rules. Even in matters of
recovery, it is not open for the department
to deduct any amount from retiral dues in
absence of any rules giving any such
authorization.

26. From the above discussions, it
is apparent that since the petitioner has
attained the age of superannuation and no
provision in law is shown which permits the
disciplinary authority to examine the
conduct of an employee, now, so as to pass
an order of punishment, there would be no
purpose in remitting back the matter to the
disciplinary
authority
for
a
fresh
consideration
of
petitioner's
conduct
leading to his conviction. Such a course
would be legally impermissible.

27. The relief to be granted to the
petitioner in such circumstances will have
to be determined by this Court in view of
what has been observed in para-127 of the
Constitution Bench judgment in Tulsiram
Patel (supra). The Court will have the
jurisdiction to pass necessary order in
respect of the penalty, which in its opinion
would
be
just
and
proper
in
the
circumstances of the case.
28. In the facts of the present case the
petitioner has been dismissed from service
on 18.03.2016 and has attained the age of
superannuation on 31.12.2018. He has
admittedly not worked during this period.
The proceedings against the petitioner,
consequent upon his conviction in an
offence under Section 307 I.P.C. cannot be
said to be without jurisdiction or arbitrary,
on facts. The order of dismissal has been
found
wanting
on
account
of
nonconsideration
of
petitioner's
conduct
594 INDIAN LAW REPORTS ALLAHABAD SERIES
leading to his conviction and has been set
aside, for such reasons. The petitioner
would be entitled to all service and retiral
benefits including continuity excluding
salary between 18.3.2016 to 31.12.2018 by
applying the principles of 'no work no pay'.
It is however reiterated that the period
between 18.3.2016 to 31.12.2018 shall be
counted for payment of retiral benefits.
"

15. In the facts of the present case the
petitioner has been dismissed from service
on 13.08.2010 and has attained the age of
superannuation
on
31.10.2021.
The
petitioner had admittedly not worked
during this period. The order of dismissal
has been found wanting on account of nonconsideration
of
petitioner's
conduct
leading to his conviction and has been set
aside for such reasons. The petitioner shall
be entitled to all the post retiral benefits
including
continuity
excluding
salary
between the period from 13.08.2010 to
31.10.2021 by applying principle of "no
work, no pay".

16. In view of the facts, circumstances
and discussion made hereinabove, the writ
petition is allowed.

17. The impugned orders dated
13.10.2010, 28.02.2020 and 19.03.2021 are
quashed and set aside.

18. The respondents are directed to
ensure the payment of all post retiral dues
to the petitioner within a period of two
months from the date a certified copy of
this order is served.
----------
(2024) 3 ILRA 594
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2024
BEFORE
THE HON'BLE AJIT KUMAR, J.
Writ A No. 12559 of 2023

Akhilesh Kumar & Ors. ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Atipriya Gautam, Sri Vijay Gautam (Sr.
Advocate), Sri Utkarsh Birla, Aarushi Birla

Counsel for the Respondents:
C.S.C., Sri A.K. S. Parihar

Service Law - U.P. Secondary Education
Services Selection Board - TGT Recruitment
2021 - Preparation of waiting list - Adjustment
against unfilled vacancies.
Once the main select list exhausted, vacancies
remaining unfilled to be offered strictly on merit
from the waiting list - Open category is "open
to all" - Reserved category candidates having
higher marks cannot be denied adjustment
merely because the vacancy is of general
category - Migration permissible from reserved
to open, not vice-versa. (Paras 11-16)

Reservation - Principle of migration -
Vertical reservations.
Law
well-settled
that
reserved
category
candidates securing higher marks than last cutoff of general category migrate to open
category - No migration from general to
reserved category - Respondents' action in
adjusting lower-merit general candidates over
higher-merit OBC candidates held impermissible.
(Paras 12-15)

Public Employment - Illegality in selection
- Rectification.
No one can be appointed against rules in public
employment - If a wrong has been done by
misapplication of reservation principle, it must
be undone - Fresh panel to be prepared from
waiting list after notice to already allotted
candidates. (Para 17)
Held : Notification dated 01.09.2023 whereby
lower-merit general category candidates were
adjusted against open vacancies quashed -
Respondents directed to prepare fresh panel
from waiting list in accordance with law. (Paras
16-18)