# Jaswant Singh and others v. State of U.P. through its Chief Secretary & others

- **Citation:** (2000) 2 ILRA 5
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-07-30
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaswant-singh-and-others-v-state-of-u-p-through-its-chief-secretary-others-39453
- **Pages:** 4

## Text

2All] Jaswant Singh and others V. State of U.P. through its Chief Secretary & others
5
complainant or the prosecution against the
accused. If was further laid down that the
allegations of mala fides may be relevant
while
judging
the
correctness
of
the
allegations or while examining the evidence.
But the mere fact that the complainant is
guilty of mala fide would be no ground for
quashing the prosecution. After having heard
learned counsel for the parties and taken into
consideration the material available on record,
we are not persuaded to hold that the
allegations of mala fide or lack of bona fide
are substantiated in the instant case.

13. We have refrained ourselves from
making any observation touching the merits
of the case and have deliberately avoided to
sift the factual aspect of the controversy lest it
may prejudice the case of either of the parties
at the trial.

14. In conclusion, we find that cognizable
offence against the petitioners is clearly made
out from the averments made in the F.I.R. In
view of the seriousness of the allegations and
gravity of the offence, we are of the view that
it is not a case fit enough in which
intervention of this court is warranted in the
exercise of extraordinary jurisdiction under
Article 226 of the Constitution of India. The
writ petitions are not well merited.

15. Both the writ petitions (Nos. 3897 and
7730 of 1999) are hereby dismissed. The
interim order dated 30.7.1999, which was
extended till further orders on 11.11.1999 in
Criminal Misc. Writ No. 3897 of 1999 is
hereby discharged.

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By the Court

Heard learned counsel for the petitioner
and learned standing counsel.

1. In this writ petitions as well as in
connected Writ Petition No. 37304 of 1999
the petitioners have prayed for a writ of
mandamus directing the respondents to issue
appointment letters to the petitioners in
pursuance of the result declared by the U.P.
Public Service Commission and the list
submitted to the State govt. on 15.5.98. The
petitioners
appeared
in
Civil
State
Engineering
Service
Examination,
1996
which was held by the U.P. Public Service
Commission
(hereinafter
referred
to
as
Commission).

2. It appears that 505 vacancies were
advertised but the Government decided to fill
up only 322 vacancies.

3. In para 11 of the writ petition it is stated
that the Commission called the petitioners for
written test in which they were declared
successful and thereafter the Commission
interviewed them as stated in para 13 of the
writ petition. The Commission declared the
result vide Annexure 6 to the writ petition. In
para 17 of the writ petition it is stated that the
Commission prepared a combined list of
successful candidates in order of merit and on
the basis of preference given by the
petitioners and others. In this list 524
candidates
were
recommended
by
the
Commission for three departments. The
petitioners underwent medical test and were
declared successful.

4. In para 21 of the writ petition it is stated
that the State Govt. adopted a peculiar method
in appointing Assistant Engineers in three
departments in U.P. Instead of issuing
appointment letter from the top of the merit
list/select list prepared by the Commission
they picked up the candidates from the lowest
of the list and first they tried to fill up the
posts in Minor Irrigation department. In para
22 and 23 of the petition it is alleged that the
government issued letters of appointment to
certain candidates. In para 24 of the petition it
is alleged that the candidates who were issued
letters of appointment in Minor Irrigation
Department did not figure in the merit top
select list recommended by the Commission.
They were given appointments although they
were either at the bottom in the list or opted
for first preference similar list has been
prepared for other departments.

5. A counter affidavit has been filed in
this case and thereafter an interim order dated
17.8.99 was passed by this Court in which it
was state that since according to the counter
affidavit 322 posts of Assistant Engineer out
of 505 were being released these 322 post
should be filled up. In pursuance of this
interim order appointment orders were issued
to 322 candidates.

Heard Sri L.P.Naithani, B.D. Mandhyan,
P.K. Sinha, Somesh Khare and Ashok
Bhushan learned counsel for the petitioners
and learned standing counsel for respondents.

6. It has been submitted on behalf of the
petitioners that the appointments made by the
State Govt. were illegal. To give an example
Ajai Kumar Verma who is petitioner no.31
and Jai Prakash Yadav who is petitioner no.
42 are at serial Nos. 184 and 181 of the select
list, petitioner no 12 Ugra Sen is at Serial no.
344 of the select list, Virendra Singh
petitioner no. 28 is at serial no. 346 in the
select list, Alok Pratap Singh petitioner no.10
is at Serial No. 345 in connected Writ Petition
No. 37304 and petitioner no. 2 Rajiv is at
serial no. 178 in the select list. All the above
mentioned candidates belong to the backward
class category, and their grievance is that
2All] Jaswant Singh and others V. State of U.P. through its Chief Secretary & others
7
while they have not been given appointment
letters
persons
from
serial
nos. 361to
362,363,365,366,369,370,374,375,377
and
378 who also belong to the backward class
category (whose names are given in the
supplementary rejoinder affidavit of Virendra
Singh ) have been appointed. Thus it is
strange that while persons belonging to
backward class who are higher in the select
list have not been given appointment while
candidates belonging to the backward class
who are lower in the select list have been
appointed. Similarly Surya Mani Singh
petitioner no. 45 who is at serial no. 476 in the
select list and belongs to scheduled caste has
not been appointed while candidates who are
at serial nos. 500, 503 to 507 and who belong
to schedules caste have been appointed.

7. The same mistake has also been made
in the general category. Petitioner nos. 19 and
68 who are at serial nos. 145 and 162 in the
select list have not been given appointment,
and petitioner nos. 34 and 60 who are serial
nos. 133 and 155 respectively have not been
appointed,
whereas
general
category
candidates who are at serial nos. 187 and 207
and further below (as mentioned in the
supplementary rejoinder affidavit ) have been
given appointment. The petitioner no. 1 in
Writ Petition No. 37307 of 1999 who is at
serial no. 167 has not given appointment
while candidates below him have been given
appointment.

8. The above facts show that there has
been total illegality and discrimination in
issuing the appointment letters issued by the
State Govt. No doubt it has been held in
several decisions of the Supreme Court and of
this Court that if a backward class or
scheduled cast candidate is so superior in
merit that even if he is treated as a general
candidate he deserves to be appointed then
such backward class or scheduled caste
candidate should be treated in the general
category, and the reserved category quota will
not thereby be reduced. These decisions
however do not mean, and they cannot be
stretched, so far as to mean that if two
candidates belong to the same reserved
category therefore meritorious should be
treated wrose off than the less meritorious. It
would be ridiculous to hold so and Article 14
of the Constitution would be violated. Hence
it is obvious that the government in issuing
the appointment letters in question has
committed illegality. We are of the opinion
that the State Govt. should reconsider the
matter again and issue afresh appointment
letters in accordance with merit of the
candidates from their own category as
recommended by the Commission. We make
it clear that a candidate superior in merit to
another in the same category cannot be treated
inferior vis-à-vis those of the same category
who are lower in the select list. The State
Govt. will now take a fresh decision and pass
fresh orders of appointment in the light of the
observations mentioned above. The vacancies
must be filled up legally as mentioned above.
The State Govt. shall do the same preferably
within six weeks of production of certified
copy of this order, but it must issue a show
cause notice to any person who has been
appointed before cancelling his appointment.

9. As regards the prayer that all the
advertised vacancies must be filled up we do
not agree with this submission. It is for the
State Government to decide how many posts
to fill up, and the State Government can
change
its
mind
subsequently
in
this
connection. As held by the Supreme Court,
even a selected candidate has no absolute
right
to
get
appointment vide Dr. J.
Shashidhara
Prasad.
V.
Governor
of
Karnataka and another AIR 1999 SC 849.

The writ petition is allowed.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
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By the Court

1. Both the writ petitions are directed
against the same orders passed by Special
Secretary, Government of U.P. and Cane
Commissioner, U.P., therefore they are being
disposed of by a common order. Writ petition
No. 54711 of 1999 shall be treated as the
leading case.

2. M/S Triveni Engineering & Industries
Limited (Petitioner of Writ petition No.54711
of 1999) has a Sugar Mill at Mawana in the
district Meerut. M/S Tikaula Sugar Mills Ltd.,
respondent no.4 has set up a new Sugar Mill
in Tikaula in the district of Muzaffarnagar,
which started production in the year 1998-99.
U.P. Sugarcane (Regulation of Supply And
Purchase) Act. 1953 (here in after referred to
as the Act) has been enacted to regulate the
supply of sugarcane required for use in sugar
factories. The Cane Commissioner, U.P.
exercising powers under section 15 of the Act
passed an order on 25.10.1999 assigning
purchase centers to various Sugar Mills
including the petitioners of the two writ
petitions
and
respondent
no.4.
Feeling
aggrieved by the aforesaid order of the Cane
Commissioner, the two petitioners as well as
respondent no.4 preferred separate appeals
before the State Government under subsection (4) of section 15 of the Act. The
appeal preferred by respondent no.4 was
allowed by the order dated 18.12. 1999 and
the order dated 25.10.1999 of the Cane
Commissioner was set aside. The Cane
Commissioner was directed to reconsider the
matter and pass a fresh reservation order with
regard to certain purchase centers originally
assigned to Mawana and Khatauli Sugar Mills
in the light of the discussion and facts
mentioned in the Appellate order. Thereafter,
the Cane Commissioner passed a fresh order
on 20.11.1999 whereby the purchase centers
mentioned in the operative part of the order
passed by the State Government and which
had earlier been assigned in favour of
Mawana and Khatuli Sugar Mills were
assigned in favour of Tikaula Sugar Mills Ltd.
(respondent no.4.)

3. M/s. Triveni Engineering & Industries
Limited filed writ petition no.54711 of 1999