# Kamla Srivastava & another v. State of U.P. and others

- **Citation:** (2010) 3 ILRA 999
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-09
- **Case number:** Civil Misc. Writ Petition No.58527 of 2008
- **Bench:** Sunil Ambwani, Kashi Nath Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamla-srivastava-another-v-state-of-u-p-and-others-41773
- **Pages:** 7

## Headnote

U.P. Prosecuting officer Service Rules,
1991 Section-15, U.P. Public Services
(Reservation
for
SC/ST/Backward
Classes) Act 1994-Right of appointmentPetitioners name included in waiting list14
post
still
vacant-Petitioners
bonafidely agitating their claim-their
name also found place in list approved
by High Court as well as the Hon'ble
Supreme Court-entitled for appointmentdirection issued accordingly

Since the Petitioners were perusing their
Writ Petitions bona-fide for appointment
and were placed in the Waiting list, they
were entitled to be appointed against 14
vacancies which could not be filled up in
selection of examination held in the year

## Text

3 All] Kamla Srivastava and another V. State of U.P. and others
999
petitioner had submitted a forged marksheet
which mentioned his date of birth as 15th
December, 1984. The petitioner has not
denied in the entire petition that such a
marksheet was not submitted by him The
entire thrust of the writ petition and the
contention advanced by the learned counsel
for the petitioner is that it was absolutely
necessary for the respondents to hold an
enquiry before cancelling his selection. In
view of the decisions of the Supreme Court
referred to above and when the facts are
admitted, it cannot be said that prejudice has
been caused to the petitioner. It will,
therefore, not be appropriate to quash the
impugned order dated 7th September, 2007
only on the ground that opportunity had not
been given to the petitioner.

17. This apart, the petitioner was not
even
eligible
to
be
considered
for
appointment as he was less than 18 years of
age at the time of selection. The Supreme
Court in Mohd. Sartaj (supra) has held that
when a candidate does not possess the
requisite
qualification,
he
cannot
be
continued and no hearing is required. In
paragraph 21 of the writ petition it is stated
that the petitioner started receiving salary
from September 2006 as a permanent
Constable. The impugned order was passed
on 7th September, 2007. It cannot,
therefore, be urged by the petitioner that
there was delay in passing the impugned
order. It is also seen that the impugned
order has been challenged by the petitioner
after a period of more than three years
without giving any satisfactory explanation
for the delay.

18. Thus, for all the reasons stated
above, the writ petition deserves to be
dismissed and is, accordingly, dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2010

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE KASHI NATH PANDEY, J.

Civil Misc. Writ Petition No.58527 of 2008

Kamla Srivastava & another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri Siddharth Khare
Sri Rohit Upadhyaya

Counsel for the Respondents:
Sri Pushpendra Singh
Sri P.S. Baghel
C.S.C.

U.P. Prosecuting officer Service Rules,
1991 Section-15, U.P. Public Services
(Reservation
for
SC/ST/Backward
Classes) Act 1994-Right of appointmentPetitioners name included in waiting list14
post
still
vacant-Petitioners
bonafidely agitating their claim-their
name also found place in list approved
by High Court as well as the Hon'ble
Supreme Court-entitled for appointmentdirection issued accordingly

Since the Petitioners were perusing their
Writ Petitions bona-fide for appointment
and were placed in the Waiting list, they
were entitled to be appointed against 14
vacancies which could not be filled up in
selection of examination held in the year
1997. The judgement of the Supreme
Court and the High Court clearly shows
that the benefit has to be given only to
those
persons
who
were
diligently
agitating the matter. It is not denied
that though there were some persons
available over and above the petitioner
,they were not given appointment as
they did not agitate the matter in the
1000 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
High Court . The petitioners were the
only 2 persons who had filed the Writ
Petitions claiming appointment from the
waiting list on the unfilled vacancies.

Held: Para 13

After perusing the record, we are of the
opinion
that
since
the
petitioners
pursuing their writ petitions bonafide for
appointment and were placed in the
waiting list, they were entitled to be
appointed against 14 vacancies, which
could not be filled up in the selections of
examination held in the year 1997. The
judgment of the Supreme Court and the
High Court clearly shows that the benefit
has to be given only to those persons,
who were diligently agitating the matter.
It is not denied that though there were
some persons available over and above
the petitioner in wait list on merit, they
were not given appointment, as they did
not agitate the matter in the High Court.
The petitioners were the only two
persons, who had filed the writ petition
claiming appointment from the waiting
list on the unfilled vacancies.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. The petitioners Ms. Kamla
Srivastava and Shri Ghanshyam appeared in
the
selections
in
pursuance
to
the
Advertisement No.A-5 E-1/1997-98 issued
by the Public Service Commission, U.P., for
selection on the post of Asstt. Prosecuting
Officers in the Asstt. Prosecuting Officers
Examination, 1997 held under Section 15 of
the U.P. Prosecuting Officer Service Rules,
1991. The advertisement was made for total
218 posts of APO to which reservation was
applied in accordance with the U.P. Public
Services
(Reservation
for
Scheduled
Castes/Scheduled Tribes/Other Backward
Classes) Act, 1994.

2. Shri Sheo Shyam and 5 others filed
Writ Petition No.28192 of 2002 alleging
that the appointments were made in
pursuance to the selection by the State
Government on three dates. A large number
of selected candidates failed to join. The
number of these candidates was found to be
30 out of 218 recommended by the Public
Service Commission. The High court found
that the result was declared on 20.3.1999,
and that even if the appointments were
given on different dates, waiting list was
valid only for a period of one year upto
20.3.2000, and in view of the decision of
the Division Bench in Surendra Kumar
Pandey Vs. State of U.P. in Writ Petition
No.16899 of 2001 decided on 1.3.2002, the
waiting list was no longer valid and
operative
to
be
used
for
making
appointments.

3. The petitioners challenged the
judgment in the Supreme Court in SLP
(Civil) No.6505 of 2003, which was
converted into Civil Appeal No.1035 of
2004. The Supreme Court found that the
appointments were given on different dates
from 10.5.1999 to 26.7.2001. It posed a
question to itself as to whether the period of
validity of the waiting list has to be one year
from the date of the first recommendation
made by the Commission, or from the date
of the last of the recommendations. In view
the peculiar nature of the fact situation, the
Supreme Court allowed the Special Appeal
with directions that the appellants shall be
considered by the Commission and the State
Government for appointment and that they
will be appointed, if otherwise found
suitable and eligible after verification of
such
credentials,
documents
and
background as are necessary to be done for
appointment. The last four paragraph of the
judgment of the Supreme Court are quoted
as below:-
3 All] Kamla Srivastava and another V. State of U.P. and others
1001

"In the aforesaid background, in a
case of this nature and in view of the
peculiar nature of the first situation noted
above, it would be inequitable and unjust to
compute the one year period form the date
when the first recommendation was made
by
the
Commission.
Undisputedly,
appointments were made till the end of
2001. Therefore, it would be proper to
reckon the period from the last date when
the recommendation was made. But another
situation has developed subsequently. The
state Government itself had requisitioned
for 56 posts including the unfilled posts of
the previous selection and examinations are
stated to have been already held. The fate of
present 11 appellants has sufferred a set
back on account of the action of both the
Commission and the State Government. If
the Commission's stand is that the validity
period of the waiting list is one year, it
should have sought for clarification from
State Government as to why unfilled posts
were included in the requisition, when its
specific stand in the office memorandums
referred to above was to the contrary. AT
the same time, the State Government having
taken a positive stand all through that the
date of reckoning would be the last date on
which the recommendation was made, it
should not have included the unfilled posts
in its requisition. The career of 11
candidates cannot be jeopardized in this
battle of inconsistent and varying stands
taken and moves adopted by the State
Government and the Commission at
different stages for different purposes.

Had the Commission on receipt of the
office
memorandum
dated
14.1.1999
pointed out to the State Government that its
view was not in line with the Commission's
view that would have sorted out the areas of
differences. Interestingly, in a particular
case referred top by the appellants,
commission accepted that the period was to
be from the last date of recommendation.
Though there cannot be any estoppels in
law, yet a statutory body like the
commission cannot blow hot and cold at the
same breath. There has to be consistency in
its view. To rule out unfortunate situations
like the present one being allowed to recur
again, both the State Government and the
Commission are required to be more
vigilant and constructive in their approach.
When dealing with the careers of large
number of candidates, their stands have to
be consistent and not varying to avoid
giving room for unsavory suspicions and
ensuring the systems to work more
transparently to add to its reputation and
strength.

In the peculiar circumstances noted
above, we direct that the appellants shall be
considered by the Commission and the State
Government and they would be appointed if
otherwise found suitable, and eligible after
verification of such credentials, documents
and background as are necessary to be
done for appointment.

The appeals are allowed to the
aforesaid extent without any order as to
costs.
Sd/-
(Doraiswamy Raju)
Sd/
(Arijit Pasayat)"

4. By letter dated 28th December,
2004 the Special Secretary, Government of
U.P. informed the Secretary of the Public
Service Commission that the Commission
has made available a list of 7 persons in its
letter dated 30.6.2004 and further list of 17
persons with its letter dated 3.11.2004, as
wait list. Out of these only 8 persons were
appellants in the Supreme Court. The names
1002 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
of three persons were not made available.
The State Government in pursuance of the
direction of the Supreme Court dated
16.2.2004 decided that the appointments is
to be given to 11 persons, if they are found
eligible after verification. The 11 persons,
who were appellants before the Supreme
Court were thus given appointments.

5. The five writ petitions namely Writ
Petition Nos.28192 of 2002; 39796 of 2002;
29793 of 2002, 28840 of 2002 and 34081 of
2002 were dismissed by the High Court
vide its judgment dated 18.12.2002. The
Supreme Court allowed the Civil Appeal
No.1035 of 2004 by its judgment and order
dated 16.2.2004. In the said judgment and
order of the Hon'ble Supreme Court the writ
petitions filed by Smt. Kamla Srivastava in
the year 2002 was also disposed of vide
judgment and order dated 2.12.2005 and
similar directions were issued in her favour.
The State Government vide order dated
30.1.2006 refused to consider her claim for
appointment on the ground that judgment
and order of Hon'ble Supreme Court was
limited to 11 appellants, who had filed
special leave petition. Shri Ghanshyampetitioner No.2 in this writ petition was also
similarly placed and his writ petition was
also decided by judgment dated 2.12.2005.
The State Government by its order dated
30.1.2006 refused to consider the claim of
the petitioners on the ground that the
judgment of the Supreme Court was limited
only to 11 appellants, who had filed special
leave petition. Aggrieved the petitioners
filed Writ Petition No.24190 of 2006 and
Writ Petition No.20176 of 2007. Both these
writ petitions were allowed with following
directions:-

"We have heard counsel for the parties
and gone through the records of the present
petition.

The petitioner had approached this
Court in the year 2002 itself, for reasons
beyond the control of the petitioner her writ
petition could not be decided by this Court.
While petitions filed by other similarly
situate candidates were dismissed under the
judgment and order dated 18.12.2002,
giving rise to Special Leave to Appeal being
filed before the Hon'ble Supreme Court. The
Special Leave to Appeal has been allowed
vide judgment and order dated 16.2.2004
with the direction as noticed hereinabove.
The Division Bench of this Court, therefore,
following the judgment and order of the
Hon'ble Supreme Court dated 16.2.2004
disposed of the writ petition filed by the
present petitioner in the year 2005 on
similar terms and directions.

In our opinion, the petitioner who has
been vigilant and has been contesting
before this Court with due diligence cannot
be permitted to suffer because of the fact
that this Court could not decide her writ
petition within reasonable time.

It is settled law that no party is to
suffer because of the act of the Court. In any
view of the matter, once the Division Bench
has issued directions under its judgment
and order dated 2.12.2005 following the
judgment and order of the Hon'ble Supreme
Court
referred
to
above,
the
State
Authorities are bound to carry out the said
directions with all promptness and due
diligence. They cannot be permitted to
refuse the consideration of the claim of the
petitioner on the ground that the petitioner
had not approached the Hon'ble Supreme
Court. As already noticed hereinabove,
there was no occasion for the petitioner to
approach the Hon'ble Supreme Court as
her petition remained pending before this
court itself.
3 All] Kamla Srivastava and another V. State of U.P. and others
1003

In view of the aforesaid, we are
satisfied that the order passed by the State
Government dated 30.1.2006 is illegal and
cannot be sustained. The order impugned is
hereby quashed. The writ petition succeeds
and is allowed. The respondents are
directed to consider the claim of the
petitioner for appointment strictly in
accordance with law in the light of the
Division Bench judgment and order dated
2.12.2005, subject however to the condition
that the vacancies which were subject
matter of advertisement in the year 1997,
within the category to which the petitioner
belongs is still available and no person over
and above the petitioner in the merit list still
remains to be offered appointment."

6. The petitioners, thereafter, made
representations to the State Government,
which have been rejected by the impugned
order dated 13th October, 2008 by the
Principal Secretary (Home), Government of
U.P. giving rise to this writ petition.

7. The State Government has rejected
the representation on the grounds that there
were 24 vacancies, which could not be
filled up in the Asstt. Public Prosecuting
Officer
Examination,
1997.
The
Commission has made available the wait
list of 24 persons out of which 10 persons
have been given appointment and that there
are still 14 vacancies available to be filled
up from the examination held for direct
recruitment
in
the
year
1997.
The
petitioners, however, cannot be given
appointment, as their names are not
included in the wait list. Thus it is clear that
the persons available in the wait list are
higher in merit than the petitioners.

8. Shri Ashok Khare assisted by Shri
Siddharth Khare would submit that the
petitioner's name were included in the wait
list. The High Court while deciding the writ
petitions on 28.2.2008 gave the petitioners
same benefit, which was given by the
Supreme Court with two conditions namely
that the vacancies, which were subject
matter of the advertisement in the year 1997
within the category to which the petitioners
belong are still available, and that no person
over and above the petitioners in the merits
list still remains to be offerred appointment.

9. Shri Ashok Khare would submit
that the petitioners' names were included in
the wait list. The Commission committed an
error in failing to send their names to the
State Government for appointment and that
the condition put by the High Court that no
person over and above the petitioners in the
merit list still remains to be offerred
appointment, has to be read in the context of
the facts of the case in which no one was
offerred appointment, or that no one has
come forward to be appointed in pursuance
of the selections and placement in the wait
list.

10. Shri P.S. Baghel appearing on
behalf of the Commission would submit
that though there is provision under Rule 15
(4) of the Rules of 1991, to prepare wait list
not larger by more than 25% of the
candidates in order of merit, on the basis of
marks secured in the written examination
and interviews, the Commission continuing
with its past practice of preparing wait list
of 50% of the advertised vacancies actually
prepared wait list in which name of
petitioner No.1 were included at Sl.No.106
with 297 marks. Shri Ghanshyam with 289
marks, and Shri Girija Shankar Pandey was
at Sl.No.310 in OBC category with 283
marks. He would submit that the person
with same marks were arranged in merit list
and wait list in accordance with date of
birth. Since there are number of persons in
1004 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the wait list, who were not offerred
appointment by the State Government, the
condition No.2 put by the High Court was
not satisfied.

11. We have examined the original
record and find that the Commission
prepared a combined merit list for each
category according to reservation and that
on the same day on 20.3.1999 the wait list
were also prepared in which name of Kamla
Srivastava is included in the general
category and name of Ghanshyam was
included in OBC category. The wait list in
general category starts from 298 marks,
whereas Kamla Srivastava secured 297
marks and wait list in the category of OBC
starts with 291 marks, where as the
petitioner Ghanshyam has secured 289.

12. The averments in paragraph 4 of
the counter affidavit clearly admit that the
Commission had prepared the wait list and
thus the stand taken by the Commission and
the State Government that the wait list was
not prepared is not correct. We are not
called upon in this case to decide whether
both the petitioners could be included
within the wait list prepared under the
Rules, as the wait list prepared by the
Commission included their name and that
under the orders of the Supreme Court and
the High Court in the case of petitioners,
which have become final, the petitioners
could be given appointment subject to
satisfying with two conditions.

13. After perusing the record, we are
of the opinion that since the petitioners
pursuing their writ petitions bonafide for
appointment and were placed in the waiting
list, they were entitled to be appointed
against 14 vacancies, which could not be
filled up in the selections of examination
held in the year 1997. The judgment of the
Supreme Court and the High Court clearly
shows that the benefit has to be given only
to those persons, who were diligently
agitating the matter. It is not denied that
though there were some persons available
over and above the petitioner in wait list on
merit, they were not given appointment, as
they did not agitate the matter in the High
Court. The petitioners were the only two
persons, who had filed the writ petition
claiming appointment from the waiting list
on the unfilled vacancies.

14. The petitioners are graduates in
law and are eligible for the post. They
competed and were placed in the waiting
list. They are, therefore, entitled to be
appointed, on the vacant post of APOs,
which could not be filled up in the year
1997 and that there is no statement of fact
come form the Commission or the State
Government that these 14 vacancies were
offerred subsequently and were filled up in
any subsequent recruitment.

15. The writ petition is allowed with
directions to the respondents to offer
appointment to the petitioners within a
period of six weeks. The Commission will
forward their names within three weeks and
that the appointment letters will be issued to
the petitioners by the State Government
within three weeks, thereafter.

16. The petitioners will not be entitled
to salary for the period they could not be
appointed and have not worked. The
question of their seniority with the batch of
the selectees of 1997 will, however, be
decided by the State Government, after they
are appointed.
---------
3 All] Smt. Jaitoon V. Joint Director of Consolidation and others
1005
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.8.2010

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAV, J.

Civil Misc. Writ Petition No. 55774 of 2003

Smt. Jaitoon

 ...Petitioner
Versus
Joint Director of Consolidation and
others

 ...Respondents

Counsel for the Petitioner:
Sri Shekhar Srivastava
Sri A.K. Gupta
Sri Rakesh Ojha
Sri A. Kulshrestha
Sri B.P. Singh

Counsel for the Respondents:
Sri Prabhakar Dubey
Sri Anuj Kumar
Sri Preetam Yadav
Sri M.N. Singh
C.S.C.

U.P.
Consolidation
of
Holdings
Act-
Section 48-A-read with Evacuee.Property
Act-Section 24, 27-Sale certificate issued
by custodian on 26.5.76-No appeal or
revision filed.by Gaon Sabha or Stateconsolidation officer allowed objection
placing reliance upon decision of court
appeal
after
two
years-without
application to condone to delay duly
supported with affidavit-can not be
allowed-The S.O.C.and the joint Director
of
consolidation
both
Committed
manifest
error-ignoring
statutory
provision of section 48-A-before the
court the litigants are or on same futting
either private or state authority or state.

Held: Para 14 & 15

For the aforesaid reasons, apparently
there is no legal justification for allowing
the substitution application which was
much
beyond
time
without
any
explanation or request for condonation
of delay. The orders of the Settlement
Officer Consolidation as well as Joint
Director Consolidation impugned in the
instant
writ
petition
are
therefore,
manifestly
erroneous
and
blatant
disregard to the procedure provided by
Code and in the circumstances, the
impugned orders are without any basis.

There is yet another circumstance which
I can not ignore. In a decision of this
Court Niadar Vs. D.D.C. and others, 1987
RD, 17, it was held that the order passed
by Custodian became final and in case
the petitioner was feeling aggrieved
either with the order of Custodian or
Sale
Certificate
in
favour
of
the
respondents, he should have preferred
an appeal under Section 24 or revision
under
Section
27
of
the
Evacuee
Properties Act but having failed to do so
the said order can not be challenged. Any
civil or revenue suit to challenge the
order passed by the Custodian was
completely barred. Besides, Section 48A
of U.P.C.H. Act provides special provision
with
respect
to
Evacuee
Property.
Section 48A of U.P.C.H. Act completely
prohibits to entertain any dispute on the
orders passed by Custodian and it cannot
be challenged before the consolidation
authority
Case law Discussed:
AIR 1964 Supreme Court, 215, JT 2009 (5) SC,
283, 2005 (99) RD 657, 1987 RD, 17

(Delivered by Hon'ble Mrs. Poonam Srivastav, J.)

1. Heard learned counsel for the
petitioner and Standing Counsel on behalf
of respondents.

2. Counter and rejoinder affidavits
have been exchanged and writ petition is
being heard finally.

3. The prayer in the instant writ
petition is for quashing judgment and