# Lallu Ram and others v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 253
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008
- **Case number:** Civil Misc. Writ Petition No. 13141 of 2007
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lallu-ram-and-others-v-state-of-u-p-and-others-41029
- **Pages:** 5

## Headnote

Group D Service Rules 1985-Rule 16
readwith U.P. Direct Recruitment to
Group D post (inclusion of members
nomination by the D.M. in the Selection
Committee)
Rules
2006-selection
of
group-D employee-on direction of High
Court
director
of
Higher
Education
found-nominee of District Magistrate not
participated
in
selection
committee
which
is
must
w.e.f.
3.3.06-while
interview held on 27/28/29.8.06-heldRules
relating
to
constitution
of
committee mandatory-non complianceselection illegal.

Held: Para 14 & 15

In
the
present
case,
the
selection
committee
was
constituted
in
accordance with rule 16 of the Rules of
1985, which did not include a nominee of
the District Magistrate. In my opinion,
the rules relating to the constitution of
the selection committee is mandatory,
and non-compliance of this mandatory
provision invalidates the entire selection
process vis-a-vis the recommendations
made by the selection committee and,
consequently, the appointment orders.

Consequently, this Court is of the opinion
that
the
selection
committee
was
illegally constituted in violation of the
mandatory provision of the rules of 3rd
March, 2006. Non-compliance of the
amended rules vitiated the selection
process. Consequently, the petitioners'
appointment as Class IV posts became
invalid and illegal.
Case law discussed:
(1990) 1 SCC-411, 1990 SCC (L&S)-446,
(1999) 1 SCC-544

## Text

1 All] Lallu Ram and others V. State of U.P. and others
253
served upon the petitioner, therefore, a
clear inference can be drawn that the
Committee of Management has taken a
decision without affording an opportunity
to the petitioner. The procedure adopted
by the Committee of Management was in
contravention of the statutory provision of
Regulations 36 and 37, which rendered
the decisions of the Committee of
Management as illegal.

20. Further it has also to be noted
from the record and as submitted by the
counsel for the respondent that the
punishment to the petitioner has been
recommended by the enquiry officer only
on the basis of the preliminary enquiry
report dated 2.4.1995 and that was the
basis of punishment awarded by the
Committee of Management. The Apex
Court in AIR 1960 Supreme Court, 992,
Amlendu Ghosh Vs. District Traffic
Superintendent, N.E. Railway, A.I.R.
1964, Supreme Court, 1854 Champak Lal
Shah Vs. Union of India, A.I.R. 1971
Supreme Court, 823, Government of
India Vs. Tarak Nath, A.I.R. 1971
Supreme
Court,
2148
Narayan
Dattatraya Ramteerathakar Vs. State of
Maharastra, has held that preliminary
enquiry cannot be a basis of punishment
against a charged employee. From the
record it is clear that the enquiry officer
has
recommended
punishment
of
termination against the petitioner only on
the basis of preliminary enquiry. In view
of the aforesaid fact also the decision
rendered
by
the
Committee
of
Management only on the basis of the
report of the preliminary enquiry can
safely be held to be illegal.

21. Further it is also to be noted that
in such type of cases where the mandatory
provision has not been complied with, the
matter can safely be remanded back to the
competent authority to take a fresh
decision according to law but as the
petitioner has already died on 28.10.2003,
therefore, in facts and circumstances of
the present case it will not be appropriate
in the interest of justice to re-open the
matter again. But as the mandatory
provision of Regulations 36 and 37 has
not been complied with, therefore, in my
view, the decision rendered by the
Committee of Management can safely be
held to be invalid.

22. In view of the aforesaid fact, the
writ petition is allowed and the orders
dated 11.12.1995 (Annexure I to the writ
petition) and order of approval dated
10.11.1996 (Annexure 5 to the writ
petition)
and
appellate
order
dated
10.2.1998 (Annexure 7 to the writ
petition) passed by the respondent Nos. 3,
2 and 1 respectively, are hereby quashed
and the petitioner will be treated to be in
service till the date when he attend the age
of superannuation and will be entitled for
the benefits for which he is entitled
according to law. No order as to costs.
Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 13141 of 2007

Lallu Ram and others
 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri Sunil Kumar Srivastava
254 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Counsel for the Respondents:
Sri M.C. Chaturvedi
S.C.

Group D Service Rules 1985-Rule 16
readwith U.P. Direct Recruitment to
Group D post (inclusion of members
nomination by the D.M. in the Selection
Committee)
Rules
2006-selection
of
group-D employee-on direction of High
Court
director
of
Higher
Education
found-nominee of District Magistrate not
participated
in
selection
committee
which
is
must
w.e.f.
3.3.06-while
interview held on 27/28/29.8.06-heldRules
relating
to
constitution
of
committee mandatory-non complianceselection illegal.

Held: Para 14 & 15

In
the
present
case,
the
selection
committee
was
constituted
in
accordance with rule 16 of the Rules of
1985, which did not include a nominee of
the District Magistrate. In my opinion,
the rules relating to the constitution of
the selection committee is mandatory,
and non-compliance of this mandatory
provision invalidates the entire selection
process vis-a-vis the recommendations
made by the selection committee and,
consequently, the appointment orders.

Consequently, this Court is of the opinion
that
the
selection
committee
was
illegally constituted in violation of the
mandatory provision of the rules of 3rd
March, 2006. Non-compliance of the
amended rules vitiated the selection
process. Consequently, the petitioners'
appointment as Class IV posts became
invalid and illegal.
Case law discussed:
(1990) 1 SCC-411, 1990 SCC (L&S)-446,
(1999) 1 SCC-544

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri Ashok Khare, the
learned Senior Counsel appearing for the
petitioner and the learned Standing
Counsel for the respondents.

2. The petitioners are aggrieved by
the orders dated 08.09.2006 and 29th
January, 2007, passed by the Director of
Education
(Higher
Education)
Uttar
Pradesh, Allahabad, by which their
representation has been rejected and their
appointment as Class IV employees has
been held to be illegal and void.

3. The brief facts leading to the
filing of the writ petition is, that there
exists a government degree college
known as Smt. Indira Gandhi Government
Degree College in Lalganj in the district
of Mirzapur (hereinafter referred to as the
college), in which the service conditions
of the teachers along with non-teaching
staff are governed by the provisions of the
Uttar Pradesh Higher Education Services
Commission Rules and the Act. It
transpires that the Government of Uttar
Pradesh issued an order dated 18th March,
2005 taking a policy decision to recruit
class III and class IV employees in all the
departments of the State Government,
except the Medical, Health and Family
Welfare Department as per the situation
prevailing prior to the issuance of the
Government Order dated 12th March,
2005.

4. Pursuant to the aforesaid
Government Order, the Director Higher
Education, Allahabad communicated to
all the Principals of the institution by a
letter dated 21st November, 2005, to
undertake the recruitment process to fill
up the class III and class IV posts, after
taking into consideration the reservation
policy. The Regional Higher Education
Officer,
Varanasi,
in
turn,
also
communicated the same to all the
1 All] Lallu Ram and others V. State of U.P. and others
255
Principals of his region, and further,
directed the Principals to advertise the
posts between the 20th June, 2006 to 30th
June, 2006, and that the last date for
inviting the applications was fixed as 31st
July,
2006.
The
Regional
Higher
Education Officer further directed that the
process of interview should be completed
by August, 2006.

5. Based on the aforesaid directions,
the
Principal
of
the
college
duly
advertised the vacancies on 25th of June
and 27th June, 2006 inviting applications
for four posts of Class IV employees in
two daily newspapers, namely, Amar
Ujala and the Dainik Jagaran, both,
published from Varansi. In terms of Rule
16 of Group-D Service Rules, 1985, the
Principal constituted a three-member
selection committee. The interviews were
held on 27, 28 and 29th of August, 2006,
and the petitioners were selected for the
Class IV posts, and appointment letters
were issued to them by the Principal on
29th August, 2006 itself.

6. Based on certain complaints, the
Director Higher Education issued an order
dated 8th September, 2006 directing for
stoppage of the salary of the petitioners
on the ground that some complaints were
received with regard to their illegal
appointments. The petitioners, being
aggrieved, filed Writ Petition No. 62629
of 2006, which was disposed of by a
judgment dated 16.11.2006 directing the
Director of Education to examine the
legality of the appointment of the
petitioners.
Based
on
the
aforesaid
directions, the impugned order was
passed, after hearing the petitioners,
holding that the appointment of the
petitioners was invalid and consequently
cancelled
the
appointment
of
the
petitioners.
The
petitioners,
being
aggrieved by the aforesaid decision, have
filed the present writ petition.

7. In the impugned order, the
petitioners'
appointment
has
been
cancelled on a variety of grounds. The
main ground which has engaged the
attention of the Court is, that the selection
committee was constituted in violation of
the Government Order dated 3rd March,
2006, and therefore, the entire selection
process held by the selection committee
was
wholly
illegal,
invalid,
and
consequently, the appointment of the
petitioners was void ab initio.

8. Under Rule 16 of the Group-D
Service Rules, 1985, a three-member
selection committee is required to be
constituted by the Principal, in which one
member is required to be appointed from
the backward class, the second member
from a scheduled caste category, and the
third member is the appointing authority
himself. A Government Order dated 3rd
March, 2006 was issued known as the
Uttar Pradesh Direct Recruitment to
Group-D Posts (inclusion of Members
nominated by the District Magistrate in
the Selection Committee) Rules, 2006,
amending the constitution of the Selection
Committee directing that w.e.f. 3rd March,
2006 a nominee of the District Magistrate
will also be a member of the selection
committee.
Consequently,
for
appointments of Group-D posts, the
selection committee was required to
include a nominee of the District
Magistrate. The Director of Education
found that the selection committee taking
the interviews held on 27, 28 and 29th
August, 2006, did not include a nominee
of the District Magistrate, and therefore,
256 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
an invalid selection committee took the
interview and selected the candidates.

9. Shri Ashok Khare, the learned
Senior
Counsel
submitted
that
the
amended Rules as per the Government
Order dated 3rd March, 2006 could not be
made
applicable
inasmuch
as
the
vacancies were required to be filled up as
per the existing orders as on the date of
the issuance of the letter dated 21st
November, 2006, by which, the Director,
Higher
Education
had
directed
the
authorities to undertake the recruitment
process of Class III and Class IV posts.
The learned counsel submitted that since
the selection process had started on 21st
November, 2005, the amended Rules of
3rd March, 2006 had not come into
existence. Consequently, the vacancies
were required to be filled up as per the
Rules and Regulations and Government
Circulars existing as on 21st of November,
2005. The learned counsel submitted that
the amended Rules of 3rd March, 2006
was clearly prospective in nature and
could not apply retrospectively to the
vacancy which was notified on 21st
November, 2005, and in which, the
selection process had been initiated.

10. In support of his submission the
learned counsel for the petitioners placed
reliance upon the decisions of the
Supreme Court, namely, P. Mahendran
& Ors. Vs. State of Karnataka & Ors.,
(1990) 1 SCC 411; N.T. Devin Katti &
Ors. Vs. Karnataka Public Service
Commission & Ors., 1990 SCC (L&S)
446; and Gopal Krushna Rath Vs.
M.A.A. Baig (Dead) By L.Rs. & Ors.,
(1999) 1 SCC 544, in which it has been
held that the Rules or Orders prevailing
on the date when the selection process
was initiated by the issuance of the
advertisement would apply to such
vacancies,
and
that
subsequent
amendments made in the existing Rules or
Orders would not affect the selection
process, unless a contrary intention was
expressed or impliedly indicated in the
amended Rules.

11. The learned counsel for the
petitioner further submitted that in any
case the amended Rules of 3rd March,
2006 were not known to the department,
namely, the Educational Department, nor
was it known to the Principal (the
appointing authority) and since there was
no allegation of mala fides in the selection
process,
consequently,
the
selection
process, having been conducted in a fair
manner, the appointments should be
validated even if the Court found that the
selection committee was not properly
constituted.

12. On the other hand, the learned
Standing Counsel, Shri Mohan Yadav,
submitted that the selection committee
was not properly constituted and was
against the Rules of 3rd March, 2006.,
which was mandatory in nature and non-
compliance of the mandatory rules was
fatal to the entire selection process. The
petitioners were selected by an invalid
selection
committee
and
their
appointments cannot be validated under
any circumstances.

13.

Having
considered
the
submissions of the learned counsel for the
parties, this Court is of the opinion that
the petitioners cannot be granted any
relief. The order of the Director of
Education dated 21st November, 2005
only issued a direction to the authorities
to initiate the recruitment process. The
selection process had not started by that
1 All] Neetu Devi Singh V. High Court of Judicature at Allahabad and another
257
order. In my opinion, the selection
process starts from the date of the
issuance of the advertisement. In the
present case the advertisement was issued
on 25 and 27th of June, 2006 and prior to
the issuance of the advertisement the
amended rules were gazetted on 3rd
March, 2006 which became applicable.
The selection committee was required to
be constituted in accordance with the
amended rules of 3rd March, 2006.

14. In the present case, the selection
committee was constituted in accordance
with rule 16 of the Rules of 1985, which
did not include a nominee of the District
Magistrate. In my opinion, the rules
relating to the constitution of the selection
committee
is
mandatory,
and
noncompliance of this mandatory provision
invalidates the entire selection process
vis-a-vis the recommendations made by
the
selection
committee
and,
consequently, the appointment orders.

15. Consequently, this Court is of
the opinion that the selection committee
was illegally constituted in violation of
the mandatory provision of the rules of 3rd
March, 2006. Non-compliance of the
amended rules vitiated the selection
process. Consequently, the petitioners'
appointment as Class IV posts became
invalid and illegal.

16. The submissions of the learned
counsel for the petitioner that the
amended rules of 3rd March, 2006 were
not known either to the department or to
the appointing authority is patently
erroneous. The moment the rules are
gazetted, it is deemed to be in the
knowledge to all the authorities. Since I
have already held that the constitution of
the selection committee is mandatory and
that there cannot be any variation in the
constitution of its members, the deviation
made by the appointing authority was
fatal to the selection process.

17. In view of the aforesaid, there is
no infirmity in the impugned order. The
writ petition fails and is dismissed. Since I
have held that the selection committee
was wrongly constituted, consequently, I
direct
the
appointing
authority
to
reconstitute the selection committee in the
light of the amended rules of 3rd March,
2006 and hold a fresh interview from all
the candidates who had appeared pursuant
to the advertisement dated 25 and 26th of
June, 2006. The petitioners would also be
called for the interview along with other
candidates and selection would be made
in accordance with law. The entire
process shall be completed by the
appointing authority within three months
from the date of the production of a
certified copy of this order.

18. Shri Mohan Yadav, the learned
Standing Counsel will ensure that a
certified copy of this order is sent to the
appointing authority within three weeks
from today.
 Petition dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN. J.
THE HON'BLE ARUN TANDON. J.

Special Appeal No. 129 of 2008

Neetu Devi Singh ...Appellant/Petitioner
Versus
High Court of Judicature at Allahabad
and another

...Respondents