# Kapil Kumar Dixit & Ors v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 625
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-24
- **Case number:** Writ-A No. 20960 of 2022
- **Bench:** Suneet Kumar, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kapil-kumar-dixit-ors-v-state-of-u-p-ors-49988
- **Pages:** 10

## Headnote

Service Law- Constitution of India, 1950 -
Article 14, 16 & 226 - U.P. Police SubInspector and Inspector (Civil Police),
Rules, 2015-Rule 15(f)) -Writ Petition
seek to declare Rule 15(f) ultra vires of
Articles 14 and 16 of the Constitution of
India further direction has been sought to
the
St.-respondents
to
invite
the
petitioners for medical test against the
vacancy which could not be filled up as
some of the candidates were declared
medically unfit, and/ or, were absent-The
employer is at liberty to legislate and
provide the conditions of recruitment and
selection-Court would not substitute the
discretion of the employer until it is shown
that the Rule itself is inherently arbitrary to
be violative of Article 14-Mere absence of a
provision providing for waiting list would
not render the rule manifestly arbitrary to
make it contrary to the Constitution-HeldRule 15(f) of Rules, 2015 constitutionally
valid. (Para 2, 3, 37, 38, 44)

Petition dismissed. (E-15)

List of Cases cited:

## Text

4 All. Kapil Kumar Dixit & Ors. Vs. State of U.P. & Ors.
625
Article 14 of the Constitution of India, as they
create an artificial categorization of similarly
situated employees. In the present case also
an artificial classification is created as
admittedly, as the daily wage employees
perform the same duties as the regular
employees and are throughout treated as the
regular employee. They were also regularized
in continuation of their services. Thus, the
matter is squarely covered by the law settled
in case of Prem Singh (Supra).

9. Thus, the writ petition is allowed
and impugned order dated 09.07.2020 is set
aside.

10. Respondent no.3-Commissioner,
Gorakhpur Mandal, Gorakhpur is directed
to ensure regular payment of pensionary
and other benefits to the petitioner under
the Rules of 1984 by counting past services
rendered
by
petitioner
before
his
regularization for the purpose of calculating
post retiral benefits within a period of three
months.
----------
(2023) 4 ILRA 625
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 20960 of 2022
alongwith
Writ A No. 635 of 2023

Kapil Kumar Dixit & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri PrabhakarAwasthi, Sri Durvesh Kumar, Sri
Shikher Trivedi, Sri Vijai Shanker Tripathi, Sri
Vinod Shankar Tripathi
Counsel for the Respondents:
C.S.C.

Service Law- Constitution of India, 1950 -
Article 14, 16 & 226 - U.P. Police SubInspector and Inspector (Civil Police),
Rules, 2015-Rule 15(f)) -Writ Petition
seek to declare Rule 15(f) ultra vires of
Articles 14 and 16 of the Constitution of
India further direction has been sought to
the
St.-respondents
to
invite
the
petitioners for medical test against the
vacancy which could not be filled up as
some of the candidates were declared
medically unfit, and/ or, were absent-The
employer is at liberty to legislate and
provide the conditions of recruitment and
selection-Court would not substitute the
discretion of the employer until it is shown
that the Rule itself is inherently arbitrary to
be violative of Article 14-Mere absence of a
provision providing for waiting list would
not render the rule manifestly arbitrary to
make it contrary to the Constitution-HeldRule 15(f) of Rules, 2015 constitutionally
valid. (Para 2, 3, 37, 38, 44)

Petition dismissed. (E-15)

List of Cases cited:

1. Ajay Prakash Mishra & ors. Vs St. of U.P. &
ors. Special Appeal Defective No. 416 of 2021,
decided on 10.08.2021

2. St. of T.N. Vs P. Krishnamurthy (2006) 4 SCC
517

3. Cellular Operators Association of India & ors.
Vs Telecom Regulatory Authority Of India & ors.
(2016) 7 SCC 703

4. Indian Express Newspapers (Bombay) (P)
Ltd. Vs U.O.I. (1985) 1 SCC 641

5. Khoday Distilleries Ltd. & ors. Vs St. of
Karnataka & ors. (1996) 10 SCC 304

6. Sharma Transport Vs Government of A.P. &
ors. (2002) 2 SCC 188

7. Reeta Singh & ors. Vs St. of U.P. & ors. Writ-C
No. - 1715 of 2017, dated 02 February, 2018.
626 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Ranvijay Singh & ors. Vs St. of U.P. & ors.
Writ-C No. 3336 of 2016, decided on 29.03.2018

9. U.O.I. Vs Pushpa Rani & ors. 9 SCC 242

10.
Chandigarh
Administration
Vs
Usha
Kheterpal Waie & ors. (2011) 9 SCC 645

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

1. Heard Shri Prabhakar Awasthi,
learned counsel assisted by Shri Durvesh
Kumar, Shri Vinod Shanker Tripathi, Shri
Vijai Shanker Tripathi and Shri Shikher
Trivedi, learned counsels for the petitioners
and Shri Manish Goyal, learned Additional
Advocate General assisted by Shri Vikram
Bahadur Singh, learned counsels for the
State-respondents.

2. Petitioners (33 in number) seek to
declare Rule 15(f) of U.P. Police SubInspector and Inspector (Civil Police),
Rules, 2015 (for short ''Rules, 2015'), as
amended in the year 2020, ultra vires, of
Articles 14 and 16 of the Constitution of
India.

3.
 A further direction has been
sought to the State-respondents to invite the
petitioners for medical test against the
vacancy which could not be filled up as
some of the candidates were declared
medically unfit, and/or, were absent.

4. The facts, inter se, parties are not in
dispute.

5. The second respondent-Uttar
Pradesh
(Police
Recruitment
and
Promotion Board) U.P., Lucknow, (for
short ''Board'), issued an advertisement
dated 24 February 2021, inviting online
applications for recruitment of 9,027 posts
of Sub-Inspector (Police), 484 posts of
Platoon Commander and 23 post of P.A.C.
and Fire Station Second Officer, i.e., total
9,534 posts were advertised.

6.

The
rules
governing
recruitment/selection is provided under
Rules, 2015.

7. The candidates as per the scheme
of selection were required to clear: (i)
Written Examination, (ii) Scrutiny of
documents and physical standard test, (iii)
Physical efficiency test.

8. The petitioners herein being
eligible,
applied
for
the
post
and
successfully
cleared
the
written
examination. Thereafter, their documents
were scrutinized and petitioners, thereafter,
appeared for the physical standard test. It is
claimed that all the petitioners cleared the
physical standard test and their documents
were also found to be valid and genuine.
Thereafter, petitioners appeared for the
physical efficiency test.

9. The petitioners claim that they qualified
the physical efficiency test. In the result
published by the Board on 12 June 2022, the
name of the petitioners did not find place in the
select list. The Board forwarded the final merit
list with its recommendation to the Head of
Department, in terms of Rule 15(e) of Rules,
2015. The final select list was subject to the
candidates clearing medical test and character
verification. There is no provision for
preparation of waiting list under the Rules,
2015. The Head of Department after according
his approval shall forward the list sent by the
Board to the Appointing Authority for further
action.

10. Rule 15(e) is extracted:

"15(e) Selection and Final Merit List-
From amongst
the
candidates
found
4 All. Kapil Kumar Dixit & Ors. Vs. State of U.P. & Ors.
627
successful in Physical Efficiency Test under
clause (d), on the basis of marks obtained
by
the
each
candidate
in
written
examination under clause (b), Board shall
prepare, as per the vacancies, a select list
of each category of candidates, as per the
order of merit keeping in view the
reservation policy and send it with
recommendation
to
the
Head
of
Department subject to Medical test and
character verification. No waiting list shall
be prepared by the Board. List of all
candidates with marks obtained by the each
candidate shall be uploaded on its website
by the Board. The Head of the Department
shall after his approval forward the list sent
by the Board to the Appointing Authority
for further action."

11. On plain reading of Rule 15(e), it
mandates that there would be no waiting
list, i.e., the Board is required to
recommend
that
many
number
of
candidates against the vacancies notified.
Further, the list so forwarded is subject to
the candidates clearing medical test and
character verification to be undertaken by
the Appointing Authority before issuing
appointment letter to the recommended
candidates.

12. The impugned Rule 15(f) provides
for medical test. The Rule is extracted:

15(f) Medical Test- The candidates,
whose names are in as per 15(e), will be
required
to
appear
for
Medical
Examination by the Appointing Authority.
For conducting the medical examination,
the
Chief
Medical
Officer
of
the
concerned district shall constitute a
Medical Board, which will have three
doctors,
who
will
conduct
medical
examination as per "Police Recruitment
Medical
Examination
Form'
as
prescribed and codified by the Head of
Department in consultation with the
Director General of Medical Health. Any
candidate not satisfied by the Medical
Examination, may file an appeal on the
day of examination itself. Any appeal
with regard to Medical Examination will
not be considered if the candidates fails
to file the appeal on the date of medical
examination and declaration of its result
itself. The Medical Board constituted for
appeal shall have expert regarding
Medical deficiency of the applicant. The
detailed
instructions
for
conducting
medical examination will be issued
Director
General
of
Police.
The
candidates
found
unsuccessful
in
Medical Examination shall be declared
unfit by the Appointing Authority and
such vacancies shall be carried forward
for next selection."

13. The Rule mandates that the
Appointing Authority would request the
Chief Medical Officer of the concerned
district to constitute the Medical Board
which will conduct medical examination
of the selected candidates as per Police
Recruitment Medical Examination Form
in consultation with Director General of
Health. The aggrieved candidate has
remedy of appeal.

14. The Rule further mandates that
candidates found unsuccessful in the
medical examination, i.e., declared unfit
by the Appointing Authority, all such
vacancy shall be carried forward for the
next selection.

15. Rule 16 of Rules, 2015 provides
for character verification of the candidates
recommended by the Board. The Rule
mandates that character verification shall
be completed under the supervision of the
628 INDIAN LAW REPORTS ALLAHABAD SERIES
Appointing
Authority
before
issuing
appointment letter and before sending the
candidate for training. The Rule reads thus:

"The candidates found unsuccessful in
the Medical Examination shall be declared
unfit by the appointing authority and such
vacancies shall be carried forward for the
next selection"

16. In this backdrop, the learned
counsel for the petitioner submits that the
Rule 15(f) is inherently arbitrary as it does
not provide for the waiting list.

17. Accordingly, it is submitted that
all those candidates who were not found fit
in
the
medical
examination,
and/or,
character
verification,
such
vacancies
would remain unfilled and is required to be
carried forward for next selection. It is
submitted
that
petitioners
who
had
successfully qualified the written and other
examinations/tests may be treated as
candidates in the waiting list and their
names
be
sent
for
medical
examination/character verification.

18. According to the petitioners,
seven lakh candidates appeared for the
recruitment process, and finally result of
9,534 candidates was declared by the
Board. It is further submitted that 763
candidates were found medically unfit and
101 candidates were absent.

19. In this backdrop, it is submitted
that the vacancies that remained unfilled,
accordingly, petitioners should be given an
opportunity
to
appear
for
medical
examination/character verification and if
found
fit,
they
be
considered
for
appointment. In the event, the vacancies are
carried forward, as per Rule 15(f),
according to the petitioners, it is inherently
arbitrary and violative of Article 14 and 16
of the Constitution of India.

20. Per contra, learned counsel
appearing for the State-respondent has
placed reliance on the decision of the
Division Bench rendered in Ajay Prakash
Mishra and Others vs. State of U.P. and
others1, decided along with companion
writ petitions. It is urged that the vires of a
similar rule has been upheld. The writ
petition lacks merit and is liable to be
dismissed.

21.
Rival
submissions
fall
for
consideration.

22. The question that arises is as to
whether the impugned Rule is manifestly
arbitrary/unreasonable to render it violative
of Article 14 of the Constitution of India.

23. There is a presumption in favour
of constitutionality or validity of a
subordinate legislation and the burden is
upon him who challenges it to show that it
is ultra vires/invalid. It is also well
recognized that subordinate legislation can
be challenged under any of the following
grounds:

"(a) Lack of legislative competence to
make the sub-ordinate legislation.

(b) Violation of Fundamental Rights
guaranteed under the Constitution of India.
(c) Violation of any provision of the
Constitution of India.
(d) Failure to conform to the Statute under
which it is made or exceeding the limits of
authority conferred by the enabling Act.

(e) Repugnancy to the laws of the
land, that is, any enactment.

(f)
Manifest
arbitrariness/unreasonableness
(to
an
extent where the
4 All. Kapil Kumar Dixit & Ors. Vs. State of U.P. & Ors.
629

Court might well say that the
legislature
never
intended
to
give
authority to make such rules)."

(Refer:
State
of
T.N.
vs.
P.
Krishnamurthy2 & Cellular Operators
Association of India and others vs Telecom
Regulatory Authority Of India and others3)

24. One of the tests for challenging
the
constitutionality
of
subordinate
legislation
is
that
the
subordinate
legislation
should
not
be
manifestly
arbitrary. Also, it is settled law that
subordinate legislation can be challenged
on any of the grounds available for
challenge against plenary legislation.

(Refer: Indian Express Newspapers
(Bombay) (P) Ltd. vs. Union of India4)

25. That takes us to consider the test
of 'manifest arbitrariness'. It is well
explained in Khoday Distilleries Ltd. and
others vs. State of Karnataka and
others5, which reads thus:

"13. . . . The tests of arbitrary action
which apply to executive actions do not
necessarily apply to delegated legislation.
In order that delegated legislation can be
struck down, such legislation must be
manifestly arbitrary; a law which could not
be reasonably expected to emanate from an
authority delegated with the law-making
power. In the case of Indian Express
Newspapers (Bombay) (P) Ltd. v. Union of
India [(1985) 1 SCC 641 : 1985 SCC (Tax)
121 : (1985) 2 SCR 287], this Court said
that a piece of subordinate legislation does
not carry the same degree of immunity
which is enjoyed by a statute passed by a
competent
legislature.
A
subordinate
legislation may be questioned under
Article 14 on the ground that it is
unreasonable; "unreasonable not in the
sense of not being reasonable, but in the
sense that it is manifestly arbitrary" . . . In
India, arbitrariness is not a separate
ground since it will come within the
embargo of Article 14 of the Constitution.
But subordinate legislation must be so
arbitrary that it could not be said to be in
conformity with the statute or that it
offends Article 14 of the Constitution."

 (emphasis supplied)

26. Also in Sharma Transport vs.
Government of A.P. and others6, the
Supreme Court held as follows:

"25. . . . The tests of arbitrary action
applicable to executive action do not
necessarily apply to delegated legislation.
In order to strike down a delegated
legislation as arbitrary it has to be
established
that
there
is
manifest
arbitrariness. In order to be described as
arbitrary, it must be shown that it was not
reasonable and manifestly arbitrary. The
expression "arbitrarily" means: in an
unreasonable manner, as fixed or done
capriciously or at pleasure, without
adequate
determining
principle,
not
founded in the nature of things, nonrational, not done or acting according to
reason or judgment, depending on the will
alone. . . ."

 (emphasis supplied)

27. The Division Bench of this Court
in Reeta Singh and others vs. State of
U.P. and others7, declared Rule 5 of U.P.
Medical
Health
and
Family
Welfare
Department Health Workers and Health
Supervisors (Male & Female) Service
Rules, 1997, insofar as it relates to Health
Worker (Female) ultra vires of India
Nursing Council Act, 1947, and violative of
petitioners'
fundamental
right
under
Articles 14 and 16 of the Constitution. The
630 INDIAN LAW REPORTS ALLAHABAD SERIES
rule was held to be manifestly arbitrary as
it permitted only those female candidates
who had successfully completed training
course conducted by U.P. Nurses and
Midwives Council, excluding other such
female candidates for the post who had
obtained
recognized
qualifications
prescribed under the Act from other
institutions.

28. Learned counsel for the petitioner
is unable to show as to how the Rule 15(f)
of Rules, 2015, is invalid being manifestly
arbitrary.

29. One of the questions before the
Court in Prakash Mishra (supra) was
with regard to the validity of the Rule 15(e)
of the Uttar Pradesh Constable and Head
Constable Services Rules, 2015.

30. In Paragraph 10 of the report, it is
noted that ''The challenge to constitutional
validity of Rule 15(e) has also been made
which denies preparation of wait list. It is
also Rule 15(g) which provides carry
forward of the vacancies if one is declared
medically unfit.'

31. Rule 15(e) is pari materia with the
Rule impugned 15(f) of the Rules, 2015,
under challenge in the present writ petition.

32. The Division Bench rejected the
argument with regard to the validity of the
Rule. Paragraph 26 and 27 is extracted:

"26. The argument aforesaid cannot be
accepted only for the reason that after
publication of the select list on the website
when the candidates were called for
medical examination, many of them were
declared unfit and as a consequence of
which, the posts remained vacant and were
carried
forward....The
elimination
of
candidates was even in absence of
character verification as per Rule 16 to the
Rules 2015 and thereby all those eliminated
after preparation of the select list under
clause (e) to Rule 15, equivalent posts were
carried forward. It is for the reason that no
provision for wait list exist rather it is
barred by Rule 15(e) to the Rules of 2015.
27. The alleged procedural lapse in
carrying out the recruitment is not made
out. The direction to fill up the vacant
posts cannot be given only for the reason
that in the medical examination or
character verification, certain candidates
were eliminated. It is more so when the
Rule provides for carry forward of the
vacancy as a consequence thereof. It is
also settled law that mere participation in
the selection or even placement in the
select list does not give indeficiable right of
appointment. The aforesaid issue has been
touched in detailed by the learned Single
Judge. It may be true that number of posts
remained vacant but that is due to
declaration of certain candidates to be
medically unfit or in absence of character
verification but merely for the reason that
certain posts remained unfilled would not
invite an interpretation of the Rule different
than what was intended by the legislatures.
When Rule 15(e) is specific and directs
preparation of the select list equivalent to
the number of vacancies with restrain on
wait list, then consequence was to follow.
Accordingly, we are unable to accept any of
the arguments raised by the appellants. It is
also that unfilled posts in the recruitment of
2015 were carried forward and taken in
account for recruitment in the year 2018.
With the next selection, the issue pertaining to
recruitment of year 2015 would not have
survived."

33. The Court relying on an earlier
Division Bench decision rendered in
4 All. Kapil Kumar Dixit & Ors. Vs. State of U.P. & Ors.
631
Ranvijay Singh and others vs. State of
U.P. and others8, did not find Rules 15(b),
15(c) and 15(e) of the Rules, to be ultra
vires to the Constitution or statutory
provisions. The challenge to Rule 15(e)
was made mainly in reference to bar on
preparation of wait list. The Division
Bench in Ranvijay Singh (supra) held
Rule 15(e) to be constitutionally valid. The
relevant paragraphs of the judgment is
extracted hereunder:

"10. It is not in dispute that Rules,
2015 supersede all existing rules, i.e. the
Rules, 2008 and orders issued in that
behalf. In other words, the moment Rules,
2015 were introduced and were brought
into force, Rules, 2008 ceased to operate.
The writ petitions before us do not
challenge Rules, 2015 as a whole and seek
declaration that Rules 15(b), (c) and (e) of
the Rules, 2015, as ultra vires the
provisions of the Constitution of India. In
the absence of challenge to Rules, 2015, as
a whole, a very strange situation would
arise if the challenge to Rules 15(b), (c)
and (e) only is upheld. If these clauses are
declared ultra vires the Constitution, the
remaining rules will make the entire Rules,
2015
otiose/unworkable,
which
is
impermissible and cannot be conceived. It
is settled position of law that Courts cannot
legislate or enter into the realm of
executive field by substituting or altering
the subordinate legislation. Despite such
declaration and so also legal hurdle in the
way, we have examined the challenge
raised to clauses (b), (c) and (e) of Rule 15
of Rules, 2015 independently to find out
whether the procedure prescribed for
recruitment or the mode of selection to the
post of constable vide Rules, 2015 is
irrational and arbitrary, as contended by
Mr. Khare, learned Senior Counsel for the
petitioners. The question, therefore, arise
whether the criteria of selection and
evaluation is manifestly arbitrary.

13. In this backdrop, when we look at
the procedure for recruitment laid down
under Rules, 2015, we find that these Rules
provide a mechanism for selection of the
most suitable person for the job of
constable on merits, impartially and
objectively. The procedure would definitely
avoid patronage and favoritism and also
would do away with unfairness. We would
also like to examine the case from another
angle and to record further reason to say
so. It is well settled that the power of
judicial review can be exercised in such
matters only if it is shown that the action
of the employer is contrary to any
Constitution or statutory provision or is
patently arbitrary or is vitiated due to mala
fides. It is settled legal position that
matters relating to creation and abolition
of posts formation or structuring and
restructuring of cadres, prescribing mode
of recruitment and qualifications, criteria
of
selection,
evaluation
of
candidates/employees falls within the
exclusive domain of the employer."

34. Reliance was placed on the
decision rendered by the Supreme Court in
Union of India vs. Pushpa Rani and
others9, wherein, it was held that the Court
and tribunals can neither prescribe the
qualifications nor sit in appeal over the
judgment of the employer laying down the
criteria and methodology of recruitment
and selection. Paragraph 37 reads thus:

"37. Before parting with this aspect of
the case, we consider it necessary to
reiterate the settled legal position that
matters relating to creation and abolition of
posts,
formation
and
structuring/restructuring
of
cadres,
prescribing the source/mode of recruitment
632 INDIAN LAW REPORTS ALLAHABAD SERIES
and qualifications, criteria of selection,
evaluation of service records of the
employees fall within the exclusive domain
of the employer. What steps should be taken
for
improving
efficiency
of
the
administration is also the preserve of the
employer. The power of judicial review can
be exercised in such matters only if it is
shown that the action of the employer is
contrary to any constitutional or statutory
provision or is patently arbitrary or is
vitiated due to mala fides. The Court
cannot sit in appeal over the judgment of
the employer and ordain that a particular
post be filled by direct recruitment or
promotion or by transfer. The Court has
no role in determining the methodology of
recruitment or laying down the criteria of
selection. It is also not open to the Court to
make comparative evaluation of the merit
of the candidates. The Court cannot
suggest the manner in which the employer
should structure or restructure the cadres
for the purpose of improving efficiency of
administration."

(emphasis supplied)

35.

Similarly,
in
Chandigarh
Administration vs. Usha Kheterpal Waie
and
others10,
Supreme
Court,
in
paragraph 22, observed thus:

"22. It is now well settled that it is for
the rule-making authority or the appointing
authority to prescribe the mode of selection
and
minimum
qualification
for
any
recruitment. The courts and tribunals can
neither prescribe the qualifications nor
entrench upon the power of the authority
concerned so long as the qualifications
prescribed by the employer is reasonably
relevant and has a rational nexus with the
functions and duties attached to the post
and are not violative of any provision of the
Constitution, statute and rules. [See J.
Rangaswamy vs. Govt. of A.P. (1990) 1
SCC 288 and P.U. Joshi vs. Accountant
General (2003) 2 SCC 632]. In the absence
of any rules, under Article 309 or statute,
the appellant had the power to appoint
under its general power of administration
and prescribe such eligibility criteria as it
is
considered
to
be
necessary
and
reasonable. Therefore, it cannot be said
that
the
prescription
of
Ph.D.
is
unreasonable."
 (emphasis supplied)

36. Having regard to the decision
rendered in Ajay Prakash Mishra (supra)
and Ranvijay Singh (supra), Court was of
the view that the issue of constitutional
validity of Rule 15(e) of the Rules, cannot
be held to be manifestly arbitrary, merely
for the reason that wait list has not been
provided by the Rule making authority.
Further,
mandating
that
the
unfilled
vacancies shall be carried forward, would
not make the Rule ultra vires of the
provisions of the Constitution of India or
the statutory statute. It is the sole
prerogative of the Rule making authority to
spell out the modalities of selection and
recruitment. The Court has no role in the
matter.

37. It is settled principle of law that
the employer is at liberty to legislate and
provide the conditions of recruitment and
selection. The Court would not substitute
the discretion of the employer until it is
shown that the Rule itself is inherently
arbitrary to be violative of Article 14. No
such ground has been raised while
challenging the constitutional validity of
Rule 15(f). In any case, Division Bench has
upheld a similar pari materia rule in Ajay
Prakash Mishra (supra).

38. Accordingly, the employer has the
sole discretion to prescribe qualification
4 All. Kapil Kumar Dixit & Ors. Vs. State of U.P. & Ors.
633
and decide the mode of recruitment. The
Court under the garb of judicial review
would not substitute the Rule making
authority to decide what is best suited for
the employer in the recruitment process.
Having regard to the nature of duty, the
selected candidates have to perform, it is
always open to the employer to provide or
not provide for waiting list. Mere absence
of a provision providing for waiting list
would not render the rule manifestly
arbitrary to make it contrary to the
Constitution.

39. In Maharashtra Public Service
Commission
vs.
Sandeep
Shriram
Warade11, the Court observed as under:

9. The essential qualifications for
appointment to a post are for the employer
to decide. The employer may prescribe
additional or desirable qualifications,
including any grant of preference. It is the
employer who is best suited to decide the
requirements a candidate must possess
according to the needs of the employer
and the nature of work. In no case can the
Court, in the garb of judicial review, sit in
the chair of the appointing authority to
decide what is best for the employer and
interpret
the
conditions
of
the
advertisement
contrary
to
the
plain
language of the same.

40. In Punjab National Bank vs.
Anit Kumar Das12, the Court observed as
under:

21. "it is for the employer to determine
and decide the relevancy and suitability of
the qualifications for any post and it is not
for the Courts to consider and assess. A
greater latitude is permitted by the Courts
for the employer to prescribe qualifications
for any post. There is a rationale behind it.
Qualifications are prescribed keeping in
view the need and interest of an Institution
or an Industry or an establishment as the
case may be. The Courts are not fit
instruments to assess expediency or
advisability or utility of such prescription
of qualifications......"

41. Similarly, in Zahoor Ahmad
Rather vs. Seikh Imtiyaz Ahmad13, the
Supreme
Court
made
the
following
observation:

27. The state is entrusted with the
authority to assess the needs of its public
services. Exigencies of administration, it is
trite law, fall within the domain of
administrative decision making. The state
as a public employer may well take into
account social perspectives that require the
creation of job opportunities across the
societal structure. All these are essentially
matters of policy. Judicial review must
tread warily"

42. Supreme Court similarly in

Sanjay
Kumar
Manjul
vs.
Chairman, UPSC14, observed as under:

25. The statutory authority is entitled
to frame statutory rules laying down terms
and conditions of service as also the
qualifications essential for holding a
particular post. It is only the authority
concerned who can take ultimate decision
therefore.

27. It is well settled that the superior
courts while exercising their jurisdiction
under articles 226 or 32 of the Constitution
of India ordinarily do not direct an
employer to prescribe a qualification for
holding a particular post.

43. As per Rule 15(e) of Rules, 2015,
the Board is called upon to prepare the
634 INDIAN LAW REPORTS ALLAHABAD SERIES
select list of candidates of that many
vacancies notified to the Board. The Board
in that event cannot recommend candidates
over and above the vacancies notified. It
follows that the State cannot make more
appointments than the posts notified in the
advertisement.
In
Prem
Singh
vs.
Haryana State Electricity Board15, the
Supreme Court observed as under-

"The selection process by way of
requisition and advertisement can be
started for clear vacancies and also for
anticipated vacancies but not for future
vacancies.
If
the
requisition
and
advertisement are for a certain number of
posts only, the State cannot make more
appointments than the number of posts
advertised...State can deviate from the
advertisement and make appointments on
the posts falling vacant thereafter in
exceptional circumstances only or in an
emergent situation and that too by taking a
policy decision in that behalf."

(Refer: Ashok Kumar vs. Chairman,
Banking Service Recruitment Board16)

44. The learned counsel for the
petitioner failed to show as to how the
impugned Rule 15(f) is unreasonable in the
sense that it is manifestly arbitrary so as to
offend Article 14 of the Constitution.

45. Accordingly, we hold Rule 15(f)
of Rules, 2015, to be constitutionally valid.

46. Having regard to the discussions
hereinabove, the writ petition being devoid
of merit is, accordingly, dismissed.
----------
(2023) 4 ILRA 634
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2023

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-A No. 63364 of 2009

Zuhair Alam ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajeev Misra, Sri Hritudhwaj Pratap Sahi, Sri
P.K. Chaurasia, Sri Prashant Kumar Tripathi, Sri
Samarath Singh, Sri Sankalp Narain

Counsel for the Respondents:
C.S.C., Sri O.P. Singh Sikarwar, Sri Purushottam
Mani Tripathi, Sri Vashistha Tiwari

A. Service Law - Disciplinary Proceedings
-
Suspension/Termination
-
Maintainability of this petition - The
grievance arising out of service matters
connecting to Madrasa is maintainable
u/Article 226 of the Constitution of India
by way of filing writ petition before the
Hon'ble Court. (Para 13)

B. For imposing the major penalty, it was
mandatory on the part of the respondents
to conduct proper disciplinary proceedings
as
mentioned
in
the
Uttar
Pradesh
Government
Servant
(Discipline
and
Appeal) Rule, 1999. (Para 14)

On the precise query as made before the
learned counsel for the respondents that on
which dates the matter has been posted which
was initiated for conduction of the disciplinary
proceedings against the petitioner, the same
could not be apprised and even there is no
description while framing the counter affidavit
against the grounds of the petition, there is no
description and mention of any dates which took
place
during
the
course
of
disciplinary
proceedings
wherein
the
petitioner
was
warranted to appear but he failed to do so.
Moreover, it has been argued by learned
counsel for the petitioner that only on the basis
of inquiry report which has never been supplied
to the petitioner is brazen in law and the same