# Karmesh Pratap Singh v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 402
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-06
- **Case number:** Special Appeal No. 36 of 2024
- **Bench:** Arun Bhansali, C.J. Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/karmesh-pratap-singh-v-state-of-u-p-ors-51643
- **Pages:** 12

## Headnote

A. Service Law - Constitution of India -
Article 14 - Public Recruitment - Basic
principles governing it - Open competition
- Significance - Held, recruitment in the
matter of public employment is founded
on two basic principles. Firstly that the
recruitment agency must have credibility
of the highest order in executing the
principle
of
open
competition
and
secondly, the implementation of rules
applicable
insofar
as
the
process is
concerned must equally stand the tests of
Article 14 of the Constitution of India.
(Para 26)

B. Service law - UP Legislative Assembly
Secretariat (Recruitment and Conditions
of Service) Rules, 1974 - Rule 6 (ii), 49
and 50 - Post of Information Officer -
Recruitment - Academic qualification -
3 All. Karmesh Pratap Singh Vs. State of U.P. & Ors.
403
Appointment was made making relaxation
dehors the rules - Permissibility - Held,
the manner in which the relaxation of
academic qualification for appointment
was granted by the competent authority,
the same was clearly indicative of nothing
but nepotism besides it being in blatant
disregard of the well settled principles of
recruitment.
The
appointment
of
an
ineligible
person
that
too
without
declaration of result, was clearly dehors
the rules. (Para 31)

C. Service law - Constitution of India -
Article 14 and 16 - Appointment was
made dehors the rules - Worked for more
than six years, how far accrue right to
hold the post - Held, the appointment of
the appellant dehors the Rules, who is not
at all eligible to be considered for
appointment, is illegal and has rightly
been set aside. (Para 32 and 36)
Appeal dismissed. (E-1)

List of cases cited :-

## Text

_Characters 0–39,337 of 40,431. This is a partial read: ask again with offset=39337 for what follows._

402 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses
namely,
Churaman
and
Parshuram both sons of Late Mohan Lal
were the pillion riders. The statement of
these two witnesses recorded under Section
161 Cr.P.C. suggests the involvement of the
motorcycle driven by accused Dinesh Jatav
and case of the prosecution is further
supported by medical evidence as well.
Thus, the argument that applicant has been
falsely implicate is misconceived at least at
the stage of cognizance by Magistrate
under Section 190 Cr.P.C. Apart from this,
a careful reading of the impugned order
would show that the Magistrate has
minutely examined the final report under
Section 173(2) Cr.P.C. while, refusing to
accept the conclusion and rightly proceeded
to take cognizance of the offences. The
impugned order is based upon the material
collected by the Investigating Officer
during investigation and is not based upon
any other material, much less filed by
complainant along with his complaint/
protest petition.

15. Therefore, in these circumstances,
the decision in Wakil Ahmad's case
(Supra) relied upon by the applicant would
not be applicable, as in the said case, the
Magistrate not only rejected the final report
submitted by police, but also placed
reliance upon two affidavits, which were
filed by complainant along with his protest
petition. It was in this background, this
Court observed that once the cognizance is
based upon the other material, which is not
part of the final report submitted under
Section 173(2) Cr.P.C., therefore, the
Magistrate ought to have followed the
procedure contained under Chapter XV
Cr.P.C. In this case, no doubt the Magistrate
used the expression that the final report is
rejected, but it only means that the
Magistrate has shown his disagreement to
the conclusion drawn by the Investigating
Officer, because in the end the Magistrate
has directed that the case be registered as
the case based on the police report.

16. Resultantly, in view of the above
discussion, this Court does not find any
merit in this case, therefore, the application
fails and is hereby dismissed.
---------
(2024) 3 ILRA 402
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.03.2024
BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
HON'BLE ATTAU RAHMAN MASOODI, J.

Special Appeal No. 36 of 2024

Karmesh Pratap Singh ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Ajay Singh, Sakshi Singh, Sameer Singh

Counsel for the Respondents:
Abhinav Trivedi, Lalta Prasad Misra

A. Service Law - Constitution of India -
Article 14 - Public Recruitment - Basic
principles governing it - Open competition
- Significance - Held, recruitment in the
matter of public employment is founded
on two basic principles. Firstly that the
recruitment agency must have credibility
of the highest order in executing the
principle
of
open
competition
and
secondly, the implementation of rules
applicable
insofar
as
the
process is
concerned must equally stand the tests of
Article 14 of the Constitution of India.
(Para 26)

B. Service law - UP Legislative Assembly
Secretariat (Recruitment and Conditions
of Service) Rules, 1974 - Rule 6 (ii), 49
and 50 - Post of Information Officer -
Recruitment - Academic qualification -
3 All. Karmesh Pratap Singh Vs. State of U.P. & Ors.
403
Appointment was made making relaxation
dehors the rules - Permissibility - Held,
the manner in which the relaxation of
academic qualification for appointment
was granted by the competent authority,
the same was clearly indicative of nothing
but nepotism besides it being in blatant
disregard of the well settled principles of
recruitment.
The
appointment
of
an
ineligible
person
that
too
without
declaration of result, was clearly dehors
the rules. (Para 31)

C. Service law - Constitution of India -
Article 14 and 16 - Appointment was
made dehors the rules - Worked for more
than six years, how far accrue right to
hold the post - Held, the appointment of
the appellant dehors the Rules, who is not
at all eligible to be considered for
appointment, is illegal and has rightly
been set aside. (Para 32 and 36)
Appeal dismissed. (E-1)

List of cases cited :-

1. Syed Khalid Rizvi & Ors. Vs U.O.I. &
ors.;1993 Supp. (3) SCC 576

2. Management of Narendra & Company Private
Limited Vs Workmen of Narendra & Company;
(2016) 3 SCC 340

3. Special Appeal No. 562 of 2005; Devendra
Singh Vs District Administrative Committee
decided on 04.04.2019

4. Kishorilal Charmakar & anr. Vs Distt.
Education Officer & anr.; (1998) 9 SCC 395

5. St. of Madhya Pradesh & anr. Vs Dharam Bir;
JT 1998 (4) SC 363

6. St. of Karnataka & ors. Vs Gadilingappa &
ors.; (2010) 2 SCC 728

7. Basawaraj & anr.Vs Special Land Acquisition
Officer; (2013) 14 SCC 81

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

(1) The appellant herein feeling
aggrieved against the judgment dated
25.01.2024 passed by the learned Single
Judge in Writ-A No. 20207 of 2016 has
filed
the
present
intra-Court
appeal
questioning the legality of the same.

(2) Briefly stated the facts of the case
are that a post of Information Officer fell
vacant in the Secretariat of Legislative
Assembly, Uttar Pradesh in the year 2015.
An advertisement was issued for filling up
the said post on 27.05.2015, which, for
ready
reference,
to
the
extent
of
prescription
of
essential
academic
qualification and preferential, is extracted
hereunder:-

"2- 'kSf{kd ;ksX;rk ,oa vU; vgZrk;saA

1⁄4d1⁄2& vfuok;Z vgZrk

1⁄4,d1⁄2&Hkkjr esa fof/k }kjk LFkkfir fdlh
fo'ofo|ky; ls ,d fo"k; ds :i esa fgUnh ds lkFk

Lukrd mikf/k ;k ljdkj }kjk led{k
ekU;rk izkIr dksbZ mikf/k]

1⁄4nks1⁄2&i=dkfjrk esa fMIyksek ;k 5 o"kZ dk
i=dkfjrk dk vuqHkoA

1⁄4[k1⁄2&vf/kekuh vgZrk

1⁄411⁄2&lekpkj i=ksa vkSj if=dkvksa esa ys[k]
iVdFkk vkSj Qhpj fy[krs dk vuqHko

1⁄421⁄2&Hkkjr esa fof/k }kjk LFkkfir fdlh
fo'ofo|ky; ls ;k ljdkj }kjk mlds led{k
ekU;rk izkIr fdlh laLFkk ls i=dkfjrk esa Lukrd
mikf/k

1⁄431⁄2&ljdkj }kjk ekU;rk izkIr fdlh
laLFkk ls laxhr@

izdk'k&O;oLFkk@vfHkuo@funsZ'ku bR;kfn
esa fMIyksekA

ik= vH;fFkZ;ksa esa ls lk{kkRdkj ds vk/kkj
ij p;u fd;k tk;sxkA lk{kkRdkj esa lfEEkfyr gksus
gsrq vH;fFkZ;ksa dks dksbZ ;k=k HkRRkk vkfn ns; ugh
gksxkA

;fn dksbZ vH;FkhZ vius mEEkhnokjksa ds fy,
izR;{k ;k vizR;{k :i ls vFkok vU; lk/kuksa }kjk
vius i{k esa leFkZu izkIr djus dk iz;Ru djsxk rks
og vugZ dj fn;k tk;sxkA "
404 INDIAN LAW REPORTS ALLAHABAD SERIES

The process of selection was by way
of interview, besides some other norms.

(3) The period for submission of
application forms against the advertisement
was
specified
from
27.05.2015
to
17.06.2015. The appellant's application
itself came to be filed under surreptitious
circumstances. As per the material placed
on record that too at the appellate stage, an
application is said to have been presented
before the Hon'ble Speaker, Legislative
Assembly, U.P. on 15.06.2015 which was
registered vide Sl. No. 716 and on the same
very application, Hon'ble the Speaker
made an endorsement to the effect of
granting permission to participate in the
selection.
The
application
seeking
permission to participate in the process of
selection on the post of Information Officer
did not mention the rule under which the
same was presented. The advertisement, on
the other hand, required the eligible
candidates to submit their application forms
in the prescribed format. There is no
explanation in the counter affidavit filed by
the appellant as to when the application
form alongwith the permission was filed by
the appellant.

(4) It appears that the process of
selection i.e., interview took place on
28.12.2015 and the appellant as well as
respondent
No.
4
alongwith
other
candidates participated in the selection. The
result of the selection remained undeclared
although some complaints raising sense of
doubt regarding induction of the appellant
alone came to be made which went
unnoticed. The counter affidavits filed by
the appellant as well as Vidhan Sabha
nowhere have disclosed as to when the
result of the selection was declared. There
is also a contradiction in paras - 8 and 11
of the counter affidavit filed by the Vidhan
Sabha. In the process of scrutiny only 23
candidates were found eligible which
shows that the appellant was not inclusive.
In para - 11, it is stated that 24 candidates
were called for interview.

(5) The record reveals that an order of
appointment was issued in favour of the
appellant on 14.07.2016, whereafter, the
respondent
No.4/petitioner
feeling
aggrieved approached this Court by means
of Writ Petition No. 20207 (SB) of 2016.
The writ petition was dismissed by means
of judgment and order dated 27.02.2018 on
the ground that after participation in the
selection, the respondent No.4 (petitioner in
the writ petition) could not turn around and
challenge the selection.

(6) The judgment rendered by the
Writ Court was assailed by the respondent
No.4/petitioner
by
filing
a
Review
Application No. 64707 of 2018 and the
same, on being heard with due opportunity
to the parties, was allowed vide judgment
dated 31.08.2022. After allowing of the
review application, the writ proceedings
revived and during the interregnum period,
jurisdiction of service matters cognizable
before a division bench was reclassified.
After reclassification of the jurisdiction
under the orders of Hon'ble the Chief
Justice, the matter became cognizable by a
learned Single Judge. It is in this manner
that the matter came up before the learned
Single Judge, who in turn has decided the
same.

(7) It would be apt for this Court to
take note of the fact that while dealing with
the application for review, the issue as to
the locus of the respondent No.4/petitioner
was dealt with on the premise of settled
principles of law and the judgment so
rendered was not questioned by the present
3 All. Karmesh Pratap Singh Vs. State of U.P. & Ors.
405
appellant or the Vidhan Sabha, therefore,
the same attained finality.

(8) It is in pursuance of the above
judgment that the Writ Court proceeded
with the matter afresh and has rendered the
judgment impugned here in this appeal.
Although
the
arguments
have
been
advanced on the aspect as to the locus of
respondent No.4/petitioner to institute the
proceedings before the Writ Court, but such
a ground urged before us was open to be
raised in the review application or even
before the Writ Court, therefore, such an
argument at the first blush did not impress
us for any consideration.

(9) We may also take note of the fact
that no material whatsoever as regards the
possession
of
essential
eligibility
of
academic
qualification,
filing
of
the
application in prescribed form or disclosure
of result declaration was placed before the
Writ Court in the counter affidavit filed by
the appellant, as such, to question the locus
of respondent No.4/petitioner on the
ground
that
he
does
not
have
a
consequential right of appointment based
on the declaration of result, in our humble
view, is afterthought, misconceived and
short of a legal ground. The only stand
taken before the Writ Court in para 20 of
the counter affidavit filed by the appellant
was that the appellant was permitted to
appear by the Hon'ble Speaker who was
vested with the power to relax the rule and
the appellant having obtained more marks
was stated to have been appointed. It was
on this much of premise set-out by the
appellant before the Writ Court that he
contested the matter inclusive of the review
application. The Vidhan Sabha or the
appellant never challenged the order passed
on the review application questioning the
locus of the respondent No.4/petitioner.
The case laws cited by the learned counsel
for the appellant in absence of any
challenge to the judgment dated 31.08.2022
passed on the review application are wholly
misplaced and misconceived.

(10) Sri Sandeep Dixit, learned Senior
Counsel assisted by Sri Ajay Singh, learned
counsel for the appellant laid emphasis on
the following case laws in particular:-

(i) Md. Zamil Ahmed v. State of
Bihar and others [(2016) 12 SCC 342]

(ii)
Ayaaaubkhan
Noorkhan
Pathan v. State of Maharasthra and others
[(2013) 4 SCC 465]

(iii) State of Uttar Pradesh v.
Karunesh Kumar and others [2022 SCC
OnLine SC 1706]

(iv) Dr. Pragya Shukla v. Union
of India and another [2022 SCC OnLine
Del 3522]

(11) Having heard learned counsel for
the appellant at length, we are not
convinced
that
the
respondent
No.4/petitioner did not have a locus for the
reason that the said question between the
parties had attained finality in terms of the
judgment
rendered
in
the
review
application. Further, for want of declaration
of result, any participant in the selection
held on 28.12.2015 was an aggrieved party
inclusive of the respondent No.4/petitioner.
We may emphasize that every selection
held for filling up the posts in public
employment is bound to be concluded in
accordance with law before it is acted
upon. Therefore,
while
rejecting the
arguments advanced on the issue of locus,
we find ourselves in agreement with the
judgment rendered on 31.08.2022 which
has attained finality.

CONSIDERATION ON MERIT
406 INDIAN LAW REPORTS ALLAHABAD SERIES

(12) Coming to the merits of the case,
it is to be noticed that the post of
Information Officer having fallen vacant
became open for being filled up in the
Secretariat of Legislative Assembly, U.P..
Any post in the Secretariat of Legislative
Assembly is to be filled up as per the Act or
Rules framed under Article 187 of the
Constitution, which, for ready reference, is
reproduced below:-

"Article 187. Secretariat of
State Legislature -- (1) The House or each
House of the Legislature of a State shall
have a separate secretarial staff:

Provided that nothing in this
clause shall, in the case of the Legislature
of a State having a Legislative Council, be
construed as preventing the creation of
posts common to both Houses of such
Legislature.

(2) The Legislature of a State
may by law regulate the recruitment, and
the conditions of service of persons
appointed, to the secretarial staff of the
House or Houses of the Legislature of the
State.

(3) Until provision is made by the
Legislature of the State under clause (2),
the Governor may, after consultation with
the Speaker of the Legislative Assembly or
the Chairman of the Legislative Council, as
the case may be, make rules regulating the
recruitment, and the conditions of service
of persons appointed, to the secretarial staff
of the Assembly or the Council, and any
rules so made shall have effect subject to
the provisions of any law made under the
said clause."

(13) The Governor in exercise of the
powers conferred under sub-Article (3) of
Article 187 had framed the Uttar Pradesh
Legislative
Assembly
Secretariat
(Recruitment and Conditions of Service)
Rules, 1974 [in brevity, it is referred to as
'Rules,
1974']
for
the
purpose
of
appointment on the posts in the Vidhan
Sabha Secretariat, whereas the post in
question was not enumerated in the said
Rules.

(14) Undisputedly, the post in
question was advertised for being filled up
as per the essential academic qualification
mentioned in the advertisement and open
competition was based on the marks
obtained in the interview. The essential
qualification in the advertisement, as noted
above, clearly prescribes that a candidate
must possess a degree of graduation with
Hindi as a subject. Prescription for such a
qualification was in consonance with the
Rules applicable by reference under Rule
50 of Rules, 1974.

(15) The case set-up by the
respondent No.4 (petitioner) before the
Writ Court was to the effect that as per the
advertisement issued on 28.05.2015, the
essential
qualification
for
Information
Officer is Graduation with one subject as
Hindi alongwith Diploma in Journalism or
5 years experience in the field of
Journalism. The preferential qualifications
were also prescribed. The respondent
No.4/petitioner possessed the requisite
qualification of B.A. and was rather M.A.
in Hindi with Post-Graduate Diploma in
Journalism and Mass Communication. The
appellant on the other hand was stated not
to have the requisite qualification of
Graduation with one subject as Hindi, yet
he participated in the interview held on
28.12.2015 and without declaration of
result, the post of Information Officer was
filled up by the appellant. Such an
appointment became known from the
website of Vidhan Sabha, U.P. It was also
pleaded that when the result for the post of
3 All. Karmesh Pratap Singh Vs. State of U.P. & Ors.
407
Information Officer was not declared, the
respondent No.4/petitioner had moved an
application under Right to Information Act,
but of no avail. Again he had moved
applications
dated
05.08.2016
and
16.08.2016 under Right to Information Act
for providing the appointment letter of
appellant which evoked no response. A
complaint was moved on 23.12.2015 by a
public spirited person to His Excellency the
Governor of of U.P. stating therein that the
entire
selection
procedure
has
been
influenced
just
to
accommodate
the
appellant/respondent No.3 who did not
possess the essential qualification required
for the post in question. Further, it was
averred in the writ petition that though
Hon'ble the Speaker was not vested with
any power to relax the essential educational
qualification, but even then on relaxing the
essential qualification for the appellant, the
solitary post of Information Officer which
fell vacant in the Vidhan Sabha Secretariat
was filled up without declaration of the
result of the selection held on 28.12.2015.
In these circumstances, the respondent
No.4/petitioner prayed for quashing of the
selection/
appointment
of
the
appellant/opposite party No.3 and for
declaration of the result of selection held on
28.12.2015.

(16) In the counter affidavit filed by
the Vidhan Sabha before the Writ Court, it
was stated that under relevant Rules,
neither there is any prescription or mode of
recruitment nor the source of recruitment
for the post of Information Officer in the
Secretariat of Legislative Assembly, U.P.
Accordingly,
an
advertisement
dated
25.05.2015 was said to have been issued
inviting applications from the eligible
candidates for filling up the post of
Information Officer. In response to the
advertisement issued by the Legislative
Assembly, 254 applications were received,
however, 23 applicants were found eligible
and rest of 231 applications were rejected
being ineligible. Further, it has been
averred in the counter affidavit that on the
application
moved
by
the
appellant/opposite
party
No.3
to
the
Hon'ble
Speaker,
he
was
granted
permission to appear in the interview. It has
been emphasized in the counter affidavit
that in terms of the provisions contained in
Rule 49 of the Rules, 1974, the Hon'ble
Speaker is vested with the power to relax
rules.

(17) It is further averred in the
counter affidavit that in terms of the
provisions contained in Rule 6 (ii) of 1974
Rules,
the
selection
committee
was
constituted and 24 incumbents including
appellant/opposite
party
No.3
were
intimated about the date of interview as
28.12.2015. Out of 24, 20 candidates
appeared in the interview on 28.12.2015
and
after
considering
the
academic
qualifications, experience and performance
of the candidates, appellant/opposite praty
No.3 was awarded 35 marks, whereas
respondent No.4/petitioner was awarded 27
marks. On this basis, appellant/opposite
party No.3 was issued appointment order
dated 14.07.2016. It has been stated in the
counter
affidavit
that
since
the
appellant/opposite
party
No.3
was
permitted to participate in the interview on
the basis of the application moved by him
before the Hon'ble Speaker, who is vested
with the power to relax rules and the post
of Information Officer is an important post,
the discretion of Hon'ble Speaker has to be
given due weightage. Lastly, it has been
stated in the counter affidavit that requisite
reply was sent to the application dated
08.08.2016 preferred by the writ petitioner
under Right to Information Act through
408 INDIAN LAW REPORTS ALLAHABAD SERIES
post on 11.08.2016, but it was returned
undelivered with the noting that the
applicant does not reside at the given
address.

(18) In the counter affidavit filed by
appellant/opposite party No.3 before the
Writ Court, it has been stated that he is a
Graduate and he was engaged as Assistant
Review Officer (Sessional) in 2004-05,
2005-06 and 2006-07. Thereafter, he
performed on the post of Review Officer on
contract basis since 13.04.2012 and he
continued to work on the said post till
14.07.2016, as he was appointed on the
post of Information Officer in the month of
July, 2016. Since he had worked in the field
of
journalism
from
01.01.2007
to
31.03.2012 in a Hindi Daily newspaper
Tarun Mitra and he became a Member of
the Press Club from the year 2011 to 2016,
he has vast experience in writing news in
vernacular language and during this period,
he discharged his duties for covering the
proceedings of Legislative Assembly.

(19) Sri Sandeep Dixit, learned Senior
Advocate for the appellant has argued that
once a candidate has participated in the
selection and found unsuccessful, he has no
right to question the selection proceedings
of a successful candidate. The argument on
locus we have already dealt with in the first
part.

(20) Besides this, all the arguments
made on behalf of the appellant and
employer are more or less the same with
the distinguishing feature that U.P. Vidhan
Sabha has not filed any intra-Court appeal
against the impugned judgment.

(21) In the light of the factual position
narrated above, the submission putforth on
merit by the learned counsel for the
appellant is to the effect that once
relaxation/concession as to the essential
academic qualification was granted by the
competent authority, his selection based on
the merit ought not to have been interfered
with
at
the
instance
of
respondent
No.4/petitioner who, even in the event of
writ petition having been allowed, does not
reap the consequences of the declaration of
result, if any.

(22) In order to make out a case for
interference, some additional documents
have come to be filed before us at the
appellate stage which deserve a deeper
scrutiny. The selection based on the
interview took place on 28.12.2015 and
interestingly, the material placed on record
indicates that the office noting in relation
thereto was only prepared on 05.06.2016
and was placed before the Hon'ble Speaker
on 14.07.2016.

(23) Prior to the approval of
competent authority, the office note does
not indicate as to when the result of the
selection was declared. The only fact which
the office note indicates is regarding the
merit of the 20 candidates that too without
mention of their application numbers.
Holding of the interview on 28.12.2015 is
mentioned. The office note evidently shows
that the same is silent about the declaration
of the result of selection held on
28.12.2015. Surprisingly, even without
declaration of the result until 14.07.2016,
no appointments could be made. The order
of appointment issued in favour of the
appellant was itself issued on 14.07.2016
vide letter No. 1231/fi0l0/vf/k0/94/97. Not
only that the permission to participate in
the selection was highly objectionable and
beyond the scope of Rules but the very
appointment of the appellant benefiting the
result in a clandestine manner brought the
3 All. Karmesh Pratap Singh Vs. State of U.P. & Ors.
409
controversy before this Court through Writ
Petition No. 20207 (SB) of 2016 which has
finally been allowed by means of the
judgment dated 25.01.2024 for the reasons
recorded therein.

(24) The counter affidavits filed
before the Writ Court by the Vidhan Sabha
as well as by the appellant for the purposes
of
relaxation
of
essential
academic
qualification have banked upon Rule 49 of
1974 Rules, which for ready reference is
extracted below:-

"49. Power of the Speaker to
relax Rules - The Speaker may, in
exceptional circumstances, relax the age
limit and other qualifications, other than
educational qualification, prescribed for
any post in these rules."

(25) Having heard the arguments
putforth by learned counsel for the parties,
the
first
question
that
arises
for
consideration is as to whether the
competent authority was well within his
jurisdiction to have relaxed the essential
conditions of recruitment or the same as
per the Rules applicable in this behalf
was permissible or not; and secondly, as
to whether appointment of an ineligible
candidate dehors the rules has a right to
continue in blatant disregard of Articles
14 and 16 of the Constitution of India
read with the Rules applicable.

DISCUSSION ON FINDINGS

(26) Recruitment in the matter of
public employment is founded on two basic
principles. Firstly that the recruitment
agency must have credibility of the highest
order in executing the principle of open
competition
and
secondly,
the
implementation of rules applicable insofar
as the process is concerned must equally
stand the tests of Article 14 of the
Constitution of India. It is a foundational
principle of recruitment as laid down in
Syed Khalid Rizvi & Ors. vs. Union of
India & Ors. [1993 Supp.(3) SCC 576] that
the essential conditions of recruitment
cannot be relaxed. In the context of
principle as laid down by the Hon'ble Apex
Court, we may profitably refer to Rule - 49
of the Rules, 1974 as has been placed
reliance upon. It is true that in exceptional
circumstances, Hon'ble the Speaker can
relax Rules pertaining to age limit and
other qualifications, but not educational
qualifications, prescribed for any post
mentioned
in
the
Rules,
1974.
Undisputedly, the Rules framed under
Article 187 of the Constitution of India,
i.e., 1974 Rules did not enumerate the post
of Information Officer. It is strange that
against the advertised post of Information
Officer, which is not enumerated in the
Rules,
1974,
on
the
application
of
appellant/opposite party No.3, the Hon'ble
Speaker
has
relaxed
the
educational
qualification,
which
is
not
at
all
permissible. Thus, the appointing authority
under these circumstances for the purpose
of recruitment was firstly bound by the
terms of the advertisement and secondly
the power of relaxation available, if any,
could not be exercised beyond the scope of
rules as applicable to the service in
question.

(27) Learned counsel for the appellant
in order to defend the appointment made
has argued that once the permission to
participate in the selection was granted by
the competent authority, it clearly would
signify that an exemption pertaining to the
possession
of
essential
academic
qualification was implied to have been
granted by the competent authority. The
410 INDIAN LAW REPORTS ALLAHABAD SERIES
submission
putforth
before
us
is
unconvincing and does not impress us for
the reason that the permission as available
on record was firstly not weighed in the
light
of
the
academic
qualifications
possessed by the appellant and secondly,
there was no exercise. The reference to
Rule 49 of the 1974 Rules as has been
placed reliance upon in the counter
affidavit filed by the Vidhan Sabha is
merely an eyewash. The appellant's further
contention that the appointment made by
the competent authority in view of the
relaxation having been granted was fully in
consonance with law and the appellant
having rendered more than 7 years and at
this stage having become overage, would
face uncertainty in his career is again an
argument which essentially is, more an
emotional argument than legal. Legally in
absence of declaration of result of a
selection, it cannot be said to have been
done culminating into the rights of
appointment in favour of a meritorious
candidate and in the present case, no stand
was adopted in the counter affidavits filed
before the Writ Court that the result of
selection, prior to the date of appointment
of the appellant, was ever declared by the
competent authority. Even the office note
based on the selection held on 28.12.2015
was drawn nearly six months later. There is
no reference to the declaration of result
prior or after the approval of such a
selection by the competent authority. In
these
circumstances,
the
appointment
termed to have been made validly though
based on an unauthorized relaxation is a
far-fetched argument which has no sanctity
in the eyes of law.

(28) Per contra, learned counsel
appearing
for
the
respondent
No.4/petitioner taking us through the
material available on record has, at the first
instance, argued that the question of
relaxation in the present case, when
analyzed from the plain reading of
application
made
on
15.06.2015
is
purposely
silent
on
the
academic
qualification possessed by the appellant
and secondly, even if there was a disclosure
on the part of appellant for not being
possessed with the subject of Hindi at the
level of graduation as required in the
advertisement, yet the exercise of power
within the scope of Rule 49 of 1974 Rules
firstly not being applicable in the present
case was wrongly availed of by the
competent authority and secondly, even if
the said Rule was available, yet the same
does not permit relaxation of the essential
academic qualification as is evident from
the plain reading of the Rule itself. Once
the rule itself forbids the relaxation of
essential
academic
qualification,
no
question of relaxation in the present case
could arise. There did not exist any special
circumstances too as has rightly been
observed by the learned Single Judge.

(29) The argument putforth by the
learned
counsel
for
the
respondent
No.4/petitioner is sought to be fortified on
the strength of case laws for which ready
reference, we may refer to, as under:-

(i) Management of Narendra &
Company Private Limited vs. Workmen of
Narendra & Company [(2016) 3 SCC 340];

(ii) Judgment dated 04.04.2019
passed in Special Appeal No. 562 of 2005,
Devendra Singh vs. District Administrative
Committee

(iii) Kishorilal Charmakar and
another v. Distt. Education Officer and
another [(1998) 9 SCC 395]

(iv) State of Madhya Pradesh &
another v. Dharam Bir [JT 1998 (4) SC
363]
3 All. Karmesh Pratap Singh Vs. State of U.P. & Ors.
411

(v) State of Karnataka and others
v. Gadilingappa and others [(2010) 2 SCC
728]

(vi) Basawaraj and another v.
Special Land Acquisition Officer [(2013)
14 SCC 81]

(30) Dr. Misra, learned counsel has
heavily come down on the aspect of nondeclaration of result. It is argued that no
stand whatsoever was adopted before the
Writ Court, therefore, all the factual pleas
taken at the appellate stage are of no
consequence.

(31) Having regard to the arguments
and observations made above, even if the
documents which are additionally filed
alongwith the appeal are taken into
consideration, the same lead us to a strong
conviction that the manner in which the
relaxation of academic qualification for
appointment was granted by the competent
authority, the same was clearly indicative
of nothing but nepotism besides it being in
blatant
disregard
of
the
well-settled
principles of recruitment. The appointment
of an ineligible person that too without
declaration of result, was clearly dehors the
rules and has rightly been set aside as held
by the learned Writ Court. The modus
operandi of the competent authority being
writ large on the face of record was rightly
interfered by the learned Single Judge. In
the interest of justice, we caution the
Recruitment
Agencies
and
competent
authorities not to practice nepotism and
favouritism in the matter of public
employment as it would shake the very
confidence and foundation of public faith
in the rule of law.

(32) Now coming to the ground of
equity as raised on the basis of working for
about more than six years, learned counsel
for the respondent No.4/petitioner has
relied upon the judgment passed by the
Apex Court in State of Madhya Pradesh
and another v. Dharam Bir (supra),
wherein it has been observed that the plea
that a person appointed illegally is working
on the post for more than a decade, his
appointment should not be disturbed,
cannot be accepted. Relevant paragraph
Nos. 32 and 33 of the judgment are
reproduced as under:-

"32. "Experience" gained by the
respondent on account of his working on
the post in question for over a decade
cannot
be
equated
with
Educational
Qualifications required to be possessed by
a candidate as a condition of eligibility for
promotion
to
higher
posts.
If
the
Government, in exercise of its executive
power, has created certain posts, it is for
it to prescribe the mode of appointment
or the qualifications which have to be
possessed by the candidates before they
are appointed on those posts. The
qualifications would naturally vary with
the nature of posts or the service created
by the Government.

33. The post in question is the
post of Principal of the Industrial Training
Institute. The Government has prescribed
a Degree or Diploma in Engineering as
the essential qualification of this post. No
one
who
does
not
possess
this
qualification can be appointed on this
post. The educational qualification has
direct nexus with the nature of the post.
The principal may also have an occasion
to take classes and teach the students. A
person who does not hold either a Degree
or Diploma in Engineering cannot
possibly teach the students of Industrial
Training Institute the technicalities of
the subject of Engineering and its
various branches."
412 INDIAN LAW REPORTS ALLAHABAD SERIES

(33) The appointment of persons who
do not possess the minimum prescribed
qualification, are illegal. In State of
Karnataka v. Gadilingappa & others
(supra), the Apex Court in paragraph Nos.
6 and 7 observed as under:-

6. Admittedly, the respondents
herein were working as Primary School
Teachers for a long period of time and
they had rendered service as such
continuously without any break. However,
after perusing the relevant documents on
record what comes to light is the fact that
none of the respondents had undergone
the
T.C.H.
course,
which
was
the
minimum prescribed qualification at the
relevant time for being appointed to the
post of a teacher. Since the respondents
did not possess the minimum prescribed
qualification and because of which their
appointment was in contravention of the
Cadre and recruitment Rules, we are of
the
considered
view
that
their
appointments were illegal appointments.

7. Furthermore, neither has it
been brought to our notice nor was it
specifically stated before the High Court by
the respondents in the Writ Petition Nos.
45859-891 of 2003 that the respondents
belonged to the Scheduled Castes or
Scheduled Tribes category, which was the
case of the petitioners in Writ Petitions
Nos. 33173-33220 of 2003 (S-KAT) as well
the main factor taken into consideration by
the High Court of Karnataka while
allowing the claims of the petitioners
therein for regularization of their services.
Besides, the Constitutional Bench had, in
Secretary, State of Karnataka and Others v.
Umadevi(3) and Others reported in (2006)
4 SCC 1, clarified in explicit terms that the
decisions which run counter to the
principles settled and the directions given
in the Uma Devi's (supra) case will stand
denuded of their status as precedents. Here,
we also wish to point out that it is a well
settled principle of law that even if a wrong
committed in an earlier case, the same
cannot be allowed to be perpetuated."

(34) In the cases of State of Madhya
Pradesh and another v. Dharam Bir
(supra) and State of Karnataka v.
Gadilingappa & others (supra), the facts
of both cases are more or less similar. In
the former case, the minimum essential
qualification prescribed for the the post of
Principal of Industrial Training Institute is
Diploma in Engineering, whereas in the
later
case,
the
minim
prescribed
qualification is T.C.H. and they had worked
for a long period of time. In both cases,
since they were not having the minimum
prescribed qualification, the Apex Court
opined that their appointments were illegal
appointments. Here in this case, since the
appellant did not possess the minimum
qualification prescribed for appointment on
the post of Information Officer, the
appointment offered to him on the basis of
invalid relaxation is dehors the Rules and
illegal.

(35) Having considered the arguments
putforth by learned counsel for the parties
as well as the observations made by the
Writ Court in its judgment, there is no
escape to conclude that the opinion
recorded by the learned Single Judge is the
only view possible in the facts and
circumstances of the case which deserves
to be affirmed for all the more reasons
recorded above.

(36) For the aforesaid reasons, the
answer to both questions is in negative as
the power does not vest in the Hon'ble
Speaker to relax the essential qualification
and consequently, the appointment of the
3 All. Vishwash Kanaujia Vs. Dr. Ram Chandra Pathak & Ors.
413
appellant de hors the Rules who is not at all
eligible to be considered for appointment is
illegal and has rightly been set aside.

(37) In the result, the Special Appeal
filed by the appellant fails and is dismissed
accordingly.
----------
(2024) 3 ILRA 413
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.03.2024
BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI,
J.
HON'BLE BRIJ RAJ SINGH J.

Special Appeal No. 537 of 2023
along with
Special Appeal Defective No. 930 of 2023

Vishwash Kanaujia ...Appellant
Versus
Dr. Ram Chandra Pathak & Ors.
 ...Respondents

Counsel for the Appellant:
Utsav Mishra, Abhineet Jaiswal, Gaurav
Mehrotra

Counsel for the Respondents:
Raj Kumar Pandey, C.S.C.

A. Service Law - Constitution of India -
Article 14 & 15 - Hostile discrimination -
U.P. Government Servants (Disciplinary &
Appeal)
Rules,
1999
-
Rule
14
-
Disciplinary proceeding - Punishment -
Charge of allotting marks to the candidate
whimsically, while acting as the Subject
expert
member
in
the
Selection
Committee - Chairman of Committee was
exonerated from the charges - Effect -
Held, since the allegations have been
levelled mainly against the Chairman,
against whom exoneration order has been
passed by the Central Government, as to
how and under what circumstances, the
respondent
No.1/
petitioner
being
a
Member of Selection Committee, that too
in the capacity of Subject Expert can be
penalized
-
The
Chairman
who
is
responsible for all misdeeds has been
exonerated by the Government of India,
but a person who has been nominated as
subject expert has been punished for the
mistake committed
by
the
Chairman
which amounts to hostile discrimination
and violation of Articles 14 and 15 of the
Constitution - Since there is no role of the
respondent No.1/petitioner to appoint the
candidates and the inquiry conducted by
the department is wholly unfounded, we
are of the firm opinion that setting aside
of the impugned punishment order by the
learned
Single
Judge
is
wholly
in
consonance with law. (Para 63, 64 and
69)

B.