# Jitendra Kumar Tiwari v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 273
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-09
- **Case number:** Writ A No. 1330 of 2010
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-kumar-tiwari-v-state-of-u-p-anr-50608
- **Pages:** 6

## Headnote

Service Law - Appointment - Cancellation
of appointments during Model Code of
Conduct
- Discrimination
- Similarly
situated candidates allowed to join -
Right to equal treatment - Mandamus
issued to permit joining.

Where petitioners were duly selected and issued
appointment
letters
to
various
posts
(Pharmacist, Stenographer, Clerk, Store Keeper)
in Government Medical Colleges under a
common selection process and advertisement,
and though they reported for duty, they were
denied joining solely due to enforcement of the
Model
Code
of
Conduct.
Later,
their
appointments were cancelled without notice.
However, similarly placed candidates from the
same select list were permitted to join following
court orders revoking the cancellation. The
denial of joining to the petitioners amounted to
discrimination, especially when no allegations of
misconduct or fraud were raised against them,
and others similarly placed were reinSt.d. The
Court held that the St. could not take a U-turn
after appointing candidates to fulfil Medical
Council of India (MCI) inspection requirements,
and technical lapses by the respondents could
not prejudice the petitioners. Mandamus
issued directing the respondents to permit
petitioners to join their respective posts within
six weeks.

The writ is allowed.

Citations:

## Text

8 All. Jitendra Kumar Tiwari Vs. State of U.P. & Anr.
273

44. Thus, we restrain the State
Government from picking and choosing or
differentiating between exactly similarly
situated persons, for the purpose of grant of
benefit
of
the
Office
Order
dated
02.08.2005. To that extent we apply the
principle laid down in Azam Jahi Mill
Workers Association (supra).

45. In view of the above, we find no
good ground to treat the petitioners
differently from the petitioners in Gorakh
Nath Pandey (supra).

46. Accordingly, the appeal fails and
is dismissed.

47. No order as to costs.
----------
(2023) 8 ILRA 273
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.08.2023

BEFORE

THE HON'BLE IRSHAD ALI, J

Writ A No. 1330 of 2010
connected with
Writ A No. 5897 of 2010
connected with
Writ A No. 1413 of 2010

Jitendra Kumar Tiwari ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Dr. L.P. Mishra

Counsel for the Respondents:
C.S.C., Mahendra Pratap

Service Law - Appointment - Cancellation
of appointments during Model Code of
Conduct
- Discrimination
- Similarly
situated candidates allowed to join -
Right to equal treatment - Mandamus
issued to permit joining.

Where petitioners were duly selected and issued
appointment
letters
to
various
posts
(Pharmacist, Stenographer, Clerk, Store Keeper)
in Government Medical Colleges under a
common selection process and advertisement,
and though they reported for duty, they were
denied joining solely due to enforcement of the
Model
Code
of
Conduct.
Later,
their
appointments were cancelled without notice.
However, similarly placed candidates from the
same select list were permitted to join following
court orders revoking the cancellation. The
denial of joining to the petitioners amounted to
discrimination, especially when no allegations of
misconduct or fraud were raised against them,
and others similarly placed were reinSt.d. The
Court held that the St. could not take a U-turn
after appointing candidates to fulfil Medical
Council of India (MCI) inspection requirements,
and technical lapses by the respondents could
not prejudice the petitioners. Mandamus
issued directing the respondents to permit
petitioners to join their respective posts within
six weeks.

The writ is allowed.

Citations:

1. Committee of Management, Vaidik Kanya
Inter College & anr.Vs St. of U.P. & ors. (2023)
7 ILRA

2. Kul Bhushan Mishra & anr.Vs St. of U.P. &
ors. (2023) 7 ILRA

3. Dinesh Chandra Verma Vs St. of U.P. & ors.
(2023) 7 ILRA

4. Rajat Yadav Vs St. of U.P. & ors. (2023) 8
ILRA

5. St. of U.P. & ors. Vs Shiv Jag Sharma & ors.
(2023) 8 ILRA

6. Jitendra Kumar Tiwari Vs St. of U.P. & anr. &
Connected Cases (2023) 8 ILRA

(Delivered by Hon'ble Irshad Ali, J.)
274 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Dr. L.P Misra, learned
Senior Counsel assisted by Ms. Arti Bali,
learned counsel for the petitioners and Sri
Pankaj Patel, learned Additional CSC for
respondent - State.

2. At the very outset, learned Senior
Counsel for the petitioners requested for
withdrawal of prayer (a) to the writ
petitions, which is being quoted as under:

(a) To issue a writ, order or
direction in the nature of Certiorari
quashing the orders dated 02.05.2009,
07.05.2009 and 22.05.2009, the true copies
of which are contained as Annexure Nos.8,
9 and 10 respectively to the writ petition, if
there arises any legal necessity for the
same
as
the
orders
canceling
the
appointment have already been recalled by
the State Government."

3. Accordingly, prayer (a) to the writ
petitions is dismissed as withdrawn.

4. By means of Writ-A No.1330 of
2010, the petitioners have prayed for
issuance of a writ, order or direction in the
nature of mandamus commanding the
respondents to allow the petitioner Nos.1 to
4 to join on the post of Pharmacist,
petitioner No.5 to join on the post of
Stenographer, petitioner No.6 to join on the
post of Clerk and petitioner No.7 to join on
the post of Store Keeper in Manyawar
Kanshiramji Rajkiya Allopathic Medical
College, Jalaun on which posts they were
appointed in the same manner as other
similarly situated persons, including the
persons placed below them in the select
list, who are being allowed to continue.

In Writ -A No.5897 of 2010, the
petitioner has prayed for issuance of a writ,
order or direction in the nature of
mandamus commanding the respondents to
allow the petitioner to join on the post of
Pharmacist
in
Government
Medical
College, Azamgarh on which posts he was
appointed in the same manner as other
similarly situated persons, including the
persons placed below him in the select list,
who are being allowed to continue.

In Writ-A No.1413 of 2010, the
petitioner has prayed for issuance of a writ,
order or direction in the nature of
mandamus commanding the respondents to
allow the petitioner to join on the post of
Store Keeper in Manyawar Kanshiramji
Rajkiya Allopathic Medical College, Jalaun
on which posts he was appointed in the
same manner as other similarly situated
persons, including the persons placed
below him in the select list, who are being
allowed to continue.

5. Since all the writ petitions give rise
to a similar controversy, the same are being
decided by means of a common judgment
and order treating Writ-A No.1330 of 2010
to be leading writ petition and the judgment
and the judgment and order passed thereon
shall be equally applicable to the connected
matters.

5. Brief facts giving rise to the
present writ petition are as under:

Sr. No.
Relevant Facts of the Case
a.
The State Government established a number of
Medical Colleges in the State of Uttar Pradesh
including Government Medical College, Kannauj,
Government
Medical
College,
Jalaun
and
Government Medical College, Azamgarh.
b.
An advertisement was issued on 29.08.2008 by
the Director General of Medical Education and
Training (for short, "DGME"), Lucknow - -
respondent No.2 for the posts of Lab Attendants,
Pharmacists,
Drivers,
Store
Keepers,
Stenographers, Typists and Clerk for Government
Medical College, Kannauj.
In response to the aforesaid advertisement, the
petitioners
submitted
their
candidature
for
8 All. Jitendra Kumar Tiwari Vs. State of U.P. & Anr.
275
appointment
on
the
posts
of
Pharmacist,
Stenographer, Clerk and Store Keeper.
c.
Said Medical Colleges were to start from
Educational Session, 2009 and before that
recognition from Medical Council of India (MCI)
was sought for and a panel of MCI was likely to
inspect for the purpose of grant of recognition,
shortly, for Government Medical College, Jalaun.
d.
The appointment of teaching staff, para medical
staff and other staffs are a condition precedent for
making a satisfactory inspection report by MCI,
which was basis for grant of recognition and,
therefore, respondent No.4 issued a letter on
20.02.2009
addressed
to
respondent
No.2
requesting that as the educational session was to
start and the inspection by MCI was proposed, it
will be appropriate that candidates from select list
prepared in pursuance to advertisement dated
29.08.2008 be made available for appointment in
Government Medical College, Jalaun, wherein
posts of Pharmacists, Stenographers, Clerks and
Store Keepers were also indicated.
e.
On the basis of instructions issued by respondent
No.2, respondent No.3 issued appointment letters
dated 24.02.2009 earmarking the petitioners to
Government Medical College, Jalaun.
f.
Vide letter dated 26.02.2009, respondent No.4
intimated to respondent No.2 that persons
mentioned in the appointment letter have been
taken over.
g.
On 26.02.2009, the petitioners approached
respondent No.4 and requested to give joining on
their respective posts but as they were not
carrying their physical fitness certificates and
affidavits, they were asked about their credentials
and to get medically examined by concerned
Chief Medical Officer.
h.
On 04.03.2009, the petitioners approached the
respondent No.4 along with physical fitness
certificates and affidavits and requested for giving
them joining on their respective posts but
respondent No.4 apprised the petitioners that as
the
election
code
of
conduct
has
been
implemented, they cannot be allowed to join on
their respective posts.
i.
On 02.05.2009, without giving any notice to the
petitioners including other persons, the Minister,
Parliamentary Affairs, Finance and Medical
Education, U.P. issued an order requiring
respondent No.1 to cancel the appointments on
persons mentioned in the list annexed therewith.
j.
On 07.05.2009, Special Secretary, Medical
Education and Training, Government of U.P.
issued and order requiring the respondent No.2 to
cancel the appointments and submit a report to the
Government in this regard.
k.
On 22.05.2009, respondent No.2 passed an order
canceling the appointments made in Government
Medical College, Jalaun.
l.
On 25.05.2009, the petitioners approached to
respondent No.4 for joining on their respective
posts but they were apprised that all the
appointments made in Medical College, Jalaun
have been cancelled, therefore, the petitioners
cannot be allowed to join on their respective
posts.
m.
A number of persons approached to this Court by
means of various writ petitions challenging the
order of cancellation of appointments and this
Court was pleased to pass interim orders staying
the cancellation of their appointments.
n.
On 13.09.2009, the State Government filed a
number of special leave to appeal petitions before
Hon'ble Apex Court against interim orders
granted by this Court, which was dismissed vide
order dated 18.09.2009 with a liberty to the State
Government to file special appeals before the
High Court.
o.
The State Government filed two special appeals
including Special Appeal No.743 of 2009, which
were dismissed by the Division Bench of this
Court vide order dated 28.10.2009.
p.
The State Government issued an order on
07.11.2009 revoking the cancellation of order
dated
22.05.2009
by
means
of
which
appointments were made.
q.
When the respondents did not comply with orders
passed by this Court, contempt petitions were
filed before this Court, wherein orders dated
11.02.2010 and 22.02.2010 were passed in
Criminal Misc. Case No.2906 (C) of 2009 - Ajay
Kumar Yadav and others Vs. Har Bhajan Singh
and others
r.

Vide order dated 26.02.2010, respondents allowed
the persons, who filed writ petitions to join on
their respective posts.
s.
The petitioners made a representation on
20.02.2010 to respondent No.2 claiming joining
on their respective posts, which is lying pending
consideration and no order whatsoever has been
passed till date.
t.
Hence, the present writ petition has been
preferred before this Court.

4. Submission of learned Senior
Counsel
for
the
petitioners
is
that
appointment of the petitioners were made
after following due procedure and the
276 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners have faced selection committee
and appointment letter has been issued to
them and on the ground of any lapse /
technical objection on the part of the
respondents, they should not be deprived.

5. He further submitted that there
was no allegation against the petitioners for
concealment or fraud, therefore, they
should not be paralyzed by not allowing
them to join the post.

6. He next submitted that the persons
pursuant to same appointment order under
which the petitioners were appointed with
same conditions have been allowed to join,
however, the petitioners have not been
allowed to join due to implementation of
election code of conduct and subsequently,
the
order of
appointment
has
been
cancelled by the State Government, which
was stayed by this Court in various writ
petitions. He submitted that persons having
been placed below the petitioners in the
same select list have also been appointed,
however, the claim of the petitioners has
been ignored.

7. He lastly submitted that the
petitioners are not strangers nor they are
outsiders. They are the persons, who were
subjected to the process of regular
selection.
The
respondents
under
compelling circumstances for grant of
recognition from MCI, appointed the
petitioners as regular incumbents to meet
out the norms for grant of recognition
during visit of MCI and subsequently they
cannot be permitted to take a U-turn
declining the claim of the petitioners.

8. On the other hand, learned
Additional C.S.C. placed before this Court an
order dated 04.07.2023 passed by this Court
in Writ-A No.5435 of 2010; Shivendra
Vashishtha Vs. State of U.P. and others and
submitted that case of the petitioners is akin
to petitioner of aforesaid writ petition and
they are also entitled to get the same relief.

9. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record as well as
order placed by learned Additional C.S.C.

10. Vide order dated 04.07.2023,
following observation and directions were
issued in Writ-A No.5435 of 2010:

"13. On perusal, it is evident that
an advertisement was published and on the
basis of appointment letter issued to the
petitioner along with six other persons, four
persons named above were given joining in
Medical College, Azamgarh. Later on, their
appointment has been cancelled vide order
dated 22.05.2009. Subsequently, as a result of
order of this Court in several writ petitions,
the order dated 22.05.2009 was recalled by
the respondents and the aforementioned four
persons were permitted to re-join their
respective post. However, the petitioner,
whose name finds place at serial No.4 in the
aforesaid list, has not been permitted to join
on the ground of technicalities. This fact itself
has been admitted in the counter affidavit that
four persons were initially permitted to join on
the
instructions
of
higher
authorities.
Therefore, such kind of discrimination cannot
be permitted to go on.

14. If the aforementioned four
persons were the part of same selection
under same advertisement and were
permitted to join the post under same
appointment letter, there is no occasion to
not permit the petitioner to join his
respective post.

15. In view of reasons recorded
above, the writ petition deserved to be
allowed and is hereby allowed.
8 All. Jitendra Kumar Tiwari Vs. State of U.P. & Anr.
277

16. A writ in the nature of
mandamus is issued commanding the
respondent No.2 to look into the matter and
if case of the petitioner is akin to
aforementioned persons, namely, Santosh
Kumar Upadhyaya, Neeraj Gupta, Sandeep
Kumar Singh and Sushri Seema Verma, he
shall also be given joining within a period
of four weeks from the date of production
of a certified copy of this order.

17. No order as to costs."

11. On perusal of aforesaid judgment
and order, it is evident that petitioners of
aforesaid writ petition were selectees of
same advertisement and were appointed
vide same appointment letter. However,
four persons, who were part of same
selection proceeding, were permitted to
join but the petitioner of that writ petition
was not allowed to join his respective post.
The writ petition was allowed and direction
was issued to respondent No.2 to give
joining to him within a period of four
weeks from the date of production of a
certified copy of the order, if his case is
found akin to similarly situated persons,
who were already granted appointment.

12. Here, in the present case, the claim
of the petitioners for facing due selection
procedure and issuance of appointment
letter has not been denied by the
respondents. It has also not been denied by
the respondents that in pursuance to
appointment letter issued to them, they
have not submitted their joining.

13. It is crystal clear from record that
the petitioners tendered their joining before
the respondent No.4 on 26.02.2009 but as
they were not carrying their physical fitness
certificates and affidavits, they were asked
about their credentials and to get medically
examined by the Chief Medical Officer.
Subsequently, the petitioners approached to
respondent No.4 on 04.03.2009, along with
physical fitness certificates and affidavits
and
requested
for
joining
on
their
respective posts but respondent No.4
apprised the petitioners that as the election
code of conduct has been implemented,
they cannot be allowed to join on their
respective posts.

14. Later on, vide order dated
22.05.2009, respondent No.2 cancelled the
appointments
made
in
Government
Medical College, Jalaun against which,
several writ petitions were filed before this
Court and the order of cancellation of
appointment
was
stayed.
The
State
Government filed special leave to appeal
petition before Hon'ble Supreme Court,
which has been dismissed with liberty to
file special appeal before the High Court.
In pursuance thereof, the State Government
filed two special appeals before this Court
including Special Appeal No.743 of 2009,
which have also been dismissed by
Division Bench of this Court vide order
dated dated 28.10.2009.

15.
Subsequently,
the
State
Government passed an order on 07.11.2009
revoking the cancellation of order dated
22.05.2009
by
means
of
which
appointments were made. When the order
of writ court was not complied with,
several contempt petitions were also filed
and vide order dated 26.02.2010, the
respondents allowed the persons, who filed
writ petitions to join on their respective
posts.

16. In this background of the case, the
petitioners, who are also selectees of same
selection process, cannot be ruled out and
their claim for joining on their respective
posts cannot be ignored on technicalities.
278 INDIAN LAW REPORTS ALLAHABAD SERIES

17. In view of reasons recorded above,
the writ petition succeeds to be allowed and
is hereby allowed.

18. A writ in the nature of mandamus
is issued commanding the respondents to
allow the petitioners to join on their
respective posts within a period of six
weeks from the date of production of a
certified copy of this order.

19. No order as to costs.
----------
(2023) 8 ILRA 278
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J

Writ A No. 7428 of 2023

Jag Mohan Agarwal ...Petitioner
Versus
Smt. Kanchan Kumari Jain ...Respondent

Counsel for the Petitioner:
Sri Pankaj Agarwal

Counsel for the Respondent:
Sri Sudeep Harkauli

Applicability of Act No. 16 of 2021 -
Tenancy Dispute, Non-Registration of Tenancy
Agreement,
Interim
Rent
Fixation,
Maintainability of Recall Application, Tenancy
Succession:
For
non-residential
tenancies
(Section 6(3)), the tenant's successor must
prove they inherited the business, failing which
the existing tenant remains liable. Tenancy
Agreement Registration: Non-registration by the
tenant does not invalidate proceedings if the
landlord complies with Section 4(3) by filing
particulars. Interim Rent Fixation: The Rent
Authority can fix provisional rent under Section
10(4) based on market rates, and such
decisions must be supported by evidence (e.g.,
comparable rents). Recall Limitations: Section
34 (8) restricts recall applications to procedural
issues like non-service or inability to appear, not
new substantive objections. The proceedings
under
Act
No.
16
of
2021
were
held
maintainable, and the petitioner was confirmed
as the tenant. The interim rent fixation was
deemed lawful and based on market rates. The
court upheld the rejection of the recall
application under Section 34(8), as it only allows
recalls for non-service of notice or inability to
appear,
neither
of
which
applied.
New
objections raised in the recall application were
not permissible.

Citations:

1. Sana Ullah Vs Ashok Kapil, 1979 ARC 138

2. Neena Jain & ors. Vs St. of U.P. & anr., Civil
Appeal Nos. 1082-2083 of 2017

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Pankaj Agarwal, learned
counsel for petitioner and Sri Sudeep
Harkauli, learned counsel for respondent.

2. Present petition has been filed
seeking following reliefs:-

"i) to issue a writ, order or direction
in the nature of certiorari quashing the order
dated 05.04.2023 passed by Additional
District
Magistrate
(Civil
Supply)/Rent
Authority, Agra as well as impugned order
dated 06.07.2022 passed by Additional
District
Magistrate
(Civil
Supply)/Rent
Authority, Agra.

ii) to issue a writ, order or direction
in the nature of certiorari quashing the entire
proceedings of Case No. 696/2022, Smt.
Kanchan Kumar Jain vs. Jagmohan Agrawal
under section 10(1) of U.P. Regulation of
Urban Premises Tenancy Act, 2021."

3. Learned counsel for petitionerdefendant submitted that premises in