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

- **Citation:** (2008) 3 ILRA 818
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-14
- **Case number:** Special Appeal No. 979 of 2008
- **Bench:** Ashok Bhushan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-ors-v-state-of-u-p-ors-41234
- **Pages:** 4

## Headnote

Constitution of India Art. 14 and 16Appointment on Class 4th post-in the
office
of
Advocate
General-without
advertisement at least two news paper
having
wide
circulation-selection
on
basis of vacancy notified on Notice
Board-goes in favour of close to the
official and exclusion of meritorious
candidates-cancellation
of
entire
selection-held-proper.

Held: Para 15

In our considered opinion it would be a
sad day for a democratic country like
India, which is to be governed by rule
of law, if appointments on various
posts in the office of the Advocate
General,
who
is
a
Constitutional
functionary (reference Article 165 of
the
Constitution
of
India),
are
permitted to be made through a notice
published on the notice board only,
whereby Articles 14 and 16 of the
Constitution
are
given
a
go
by.
Advocate General has to advise the
State on legal matters and to perform
such other duties of a legal character,
as may from time to time be referred or
assigned to him by the Governor, and
to discharge the functions conferred on
him by or under this Constitution or
any other law for the time being in
force. Reference Article 165 (2). The
responsibility upon the holder of such
an office, to ensure that constitutional
rights conferred by Article 14 and 16
are not infringed qua appointments
under his authority, is therefore more
stringent.
Case law discussed:
AIR 2006 SC 1165, (1994) 3 UPLBEC 1551

## Text

818 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
under sections 323, 504, 506 IPC and 3
(i) (X) SC/ST Act, pending in the court
of Judicial Magistrate-II Gorakhpur is
hereby quashed.

The office is directed to send a
copy of this order to the lower court
concerned for necessary action.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.08.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No. 979 of 2008

Tungeshwar Nath

...Appellant
Versus
The State of U.P. & another...Respondents

Counsel for the Appellant:
Sri Saroj Kumar Tiwari

Counsel for the Respondents:
S.C.

Constitution of India Art. 14 and 16Appointment on Class 4th post-in the
office
of
Advocate
General-without
advertisement at least two news paper
having
wide
circulation-selection
on
basis of vacancy notified on Notice
Board-goes in favour of close to the
official and exclusion of meritorious
candidates-cancellation
of
entire
selection-held-proper.

Held: Para 15

In our considered opinion it would be a
sad day for a democratic country like
India, which is to be governed by rule
of law, if appointments on various
posts in the office of the Advocate
General,
who
is
a
Constitutional
functionary (reference Article 165 of
the
Constitution
of
India),
are
permitted to be made through a notice
published on the notice board only,
whereby Articles 14 and 16 of the
Constitution
are
given
a
go
by.
Advocate General has to advise the
State on legal matters and to perform
such other duties of a legal character,
as may from time to time be referred or
assigned to him by the Governor, and
to discharge the functions conferred on
him by or under this Constitution or
any other law for the time being in
force. Reference Article 165 (2). The
responsibility upon the holder of such
an office, to ensure that constitutional
rights conferred by Article 14 and 16
are not infringed qua appointments
under his authority, is therefore more
stringent.
Case law discussed:
AIR 2006 SC 1165, (1994) 3 UPLBEC 1551

(Delivered by Hon'ble Ashok Bhushan, J.)

1. This is an appeal against the
judgment and order dated 29th July,
2008 passed by the learned Single Judge
dismissing the writ petition filed by the
appellant. The writ petition was directed
against the order dated 02nd July, 2008
passed by the Advocate General, by
which the selections on Class-IV posts
made in the year, 2005 have been
cancelled. Facts in brief for deciding
this special appeal are as follows:

2. In the year 2005 appointment on
vacant class IV posts in the office of
Advocate General at U.P. and in the
office of Government Advocate at
Allahabad were made in the year 2005.
Writ Petition No. 1200 of 2006; Vivek
Kumar & Ors. vs. State of U.P. & Ors.
was filed before this Court questioning
the said selections. In the writ petition a
statement was made by the learned
Advocate General that in view of the
discrepancies noticed in selections, a
3 All] Tungeshwar Nath V. The State of U.P. and another
819
decision has been taken to cancel the
selections held for Class-IV posts in the
office of Advocate General as well as of
Government
Advocate
and
suitable
orders for cancelling the selections shall
be passed within week. In view of the
aforesaid statement, the Court disposed
of the writ petition after recording the
statement
of
Additional
Advocate
General.

3. On 10.04.2006 the Advocate
General is stated to have passed the order
cancelling
the
selections
so
made.
Another writ petition, being Writ Petition
No. 24620 of 2006; Km. Hemlata & Ors.
vs. State of U.P. & Ors., was decided vide
judgment and order dated 31.05.2007,
whereby the order dated 10.04.2006,
terminating the services of the selected
candidates, was set aside only on the
ground of violation of principles of
natural justice. However, liberty was
given to learned Advocate General to
examine the matter and to take fresh
decision.

4. In view of the liberty given under
the order dated 31st May, 2007, the
learned Advocate General re-examined
the matter and by means of the order
dated 02nd July, 2007 took a view that
entire selections deserve to be cancelled
since the selections had been made
without
any
advertisement
being
published in any newspaper.

5. The said order was subjected to
challenge in Writ Petition No. 37188 of
2008 by the appellant. Learned Single
Judge by means of the impugned
judgment and order has dismissed the writ
petition
after
recording
that
any
appointment on a post in public office
without advertisement being published in
newspaper would be violative of Article
14 and 16 of the Constitution of India.

6. Learned counsel for the appellant
contends that earlier also when the issue
of selection was raised in earlier writ
petitions,
no
such
objection
qua
advertisement was raised. It was only in
the order dated 02nd July, 2007 such an
objection has been raised for the first
time. The same office of Advocate
General
had
earlier
defended
the
selections made. Respondents cannot now
be permitted to turn around and assert that
the selections were illegal for want of
advertisement. Details of number of
persons who actually applied for the post
have also been referred to for contending
that selections were fair.

7. We have heard learned counsel
for the appellant and learned Standing
Counsel.

8. In the order of the learned Single
Judge as well as in the order of the
Advocate General dated 2/3.07.2007 it
has been specifically recorded that no
advertisement was published in any
newspaper qua the posts in question and
that selections were made on the basis of
notice, which was pasted on the notice
board of the office concerned.

9. The selections on Class-IV posts
were in the office of Advocate General
and Government Advocate are against the
posts which were sanctioned by the State
Government, salary whereof is paid
through public exchequer, and are in the
nature of public employment.

10. The Hon'ble Supreme Court time
and again has reiterated that selection on
any public post musts be held after due
820 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
publication of advertisement in newspaper
so that eligible candidates have an
opportunity to participate in the selection.

11. In Secretary, State of Karnataka
& Ors. Vs. Umadevi & Ors., (2006) 4
SCC 1, a Constitution Bench of the
Hon'ble Supreme Court came to the
conclusion
that
adherence
to
the
provisions of Articles 14 and 16 of the
Constitution of India is a must in the
process of public employment and an
employee
who
has
been
appointed
without
following
the
procedure
prescribed by law, is not entitled for any
relief, whatsoever, including the salary.

12. In Union Public Service
Commission
Vs.
Girish
Jayantilal
Vaghela & Ors., AIR 2006 SC 1165, the
Hon'ble Supreme Court held that the
appointment to any post under the State
can only be made after a proper
advertisement has been issued inviting
applications from eligible candidates and
holding of selection by a Body of Experts,
and any appointment made without
following the procedure, would be in
violation of the mandate of Article 16 of
the Constitution of India.

13. There being a categorical
finding that the entire selections were
conducted without there being any
advertisement in the newspaper, no
error has been committed by the learned
Single Judge in dismissing the writ
petition filed by the appellant. A Full
Bench of this Court in the case of Radha
Raizada & Ors. vs. Committee of
Management & Ors, reported in (1994)
3 UPLBEC 1551 has held that notice of
the vacancy on the notice board is no
advertisement in the eyes of law.

14. We are of the view that for
holding selection against a public post,
it is but necessary to publish an
advertisement in the newspaper so that
all eligible candidates may participate.
Non-publication of the advertisement in
newspaper
is
a
denial
of
equal
opportunity to all the eligible candidates
qua participation in the selection and
therefore violative of Article 14 and 16
of the Constitution of India rendering
the selections a nullity.

15. In our considered opinion it
would be a sad day for a democratic
country like India, which is to be
governed
by
rule
of
law,
if
appointments on various posts in the
office of the Advocate General, who is a
Constitutional
functionary
(reference
Article 165 of the Constitution of India),
are permitted to be made through a
notice published on the notice board
only, whereby Articles 14 and 16 of the
Constitution
are
given
a
go
by.
Advocate General has to advise the
State on legal matters and to perform
such other duties of a legal character, as
may from time to time be referred or
assigned to him by the Governor, and to
discharge the functions conferred on
him by or under this Constitution or any
other law for the time being in force.
Reference
Article
165(2).
The
responsibility upon the holder of such
an office, to ensure that constitutional
rights conferred by Article 14 and 16
are not infringed qua appointments
under his authority, is therefore more
stringent.

16. Notice published on the notice
board of the office has the consequence
creating
a
situation
where
only
candidates close to the office goers or
3 All] Baleshwar and others V. State of U.P.
821
their well wishers are made aware of the
vacancies to the exclusion of other
eligible candidates. Thus a situation is
created
whereby
the
field
of
consideration is restricted to chosen few
only.

We record that the learned Single
Judge has rightly dismissed the writ
petition vide his order dated 29.07.2008.
Any interference in the matter would
have only perpetuated an illegality.
Appeal is, accordingly, dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.08.2008

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Application No. 67 of 2005

Baleshwar and others
...Applicants
Versus
State of U.P.

...Opposite party

Counsel for the Applicants:
Sri Manoj Vashisth

Counsel for the Respondent:
A.G.A.

Code of Criminal Procedure-Section-111,
114-Notice by S.D.M. to execute personal
bond of Rs.30,000/- without specify the
cases number offence and Section-heldwholly
illegal-without
application
of
judicial
mind-contrary
to
statutory
provisions-can not sustain.

Held: Para 11

In view of the observations made in the
cases
mentioned
herein-above,
the
impugned notice being wholly illegal and
void is liable to be set-aside.

Case law discussed:
2002(45) ACC 627, 1975ALR 627, 1971 Cr. L.J.
1720, 1977 ACC 333

(Delivered by Hon'ble Vijay Kumar Verma, J.)

By means of this application under
section 482 of the code of Criminal
Procedure (in short the 'Cr.P.C.'), the
applicants have challenged the validity
of impugned notice dated 02.11.2004
purporting to be issued under section
111 Cr.P.C. by the S.D.M. Mawana,
District Meerut.

2. From the impugned notice
(Annexure 1), it transpires that being
satisfied
with
the
report
dated
02.11.2004 of S.O. P.S. Mawana, the
S.D.M. Mawana District Meerut passed
an order under section 111 Cr.P.C. in
the proceedings under section 107/116
Cr.P.C. in Case No. 943/9 of 2004
(State vs. Baleshwar and others) and in
pursuance of that order impugned notice
was issued to the applicants to show
cause as to why they be not ordered to
execute a personal bond for Rs. 30,000/-
and furnish two sureties each in the like
amount to keep peace for a period of
one year.

3. Heard Sri Manoj Vashisth
learned counsel for the applicants and
learned AGA for the State.

4. It was contended by the learned
counsel for the applicants that the
impugned notice purported to be issued
under section 111 Cr.P.C. is void, as full
substance of the police report has not
been mentioned in the notice. For this
contention, reliance has been placed on
the case of Ranjeet Kumar & others vs.
State of U.P.[2002(45) ACC 627] and