# Lucknow Nagar Nigam v. State Public Service Tribunal & Anr

- **Citation:** (2024) 3 ILRA 741
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-15
- **Case number:** Writ A No. 28394 of 2021
- **Bench:** Attau Rahman Masoodi, Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lucknow-nagar-nigam-v-state-public-service-tribunal-anr-51641
- **Pages:** 20

## Headnote

Service Law - Validity of Appointment and
Cancellation - Fraudulent Appointment
Letters - The answering opposite parties no.2
(Rajesh Kumar and Sachin Kumar) challenged
the cancellation of their appointment letters
dated 27.08.2016, confirmed on 08.09.2017 and
27.11.2019, alleging wrongful termination -
Held, the appointment letters were fraudulent,
issued in connivance with Municipal Corporation
officials, as the opposite parties did not figure in
the final select list, having scored below the cutoff marks of 32 (24.14 and 30.86 respectively) -
The
cancellation
was
upheld
after
due
opportunity
of
hearing,
as
fraudulent
appointments confer no right to continue in
service, supported by an FIR lodged against
involved employees. (Paras 2, 3, 7, 18, 35,
41(1))

Service Law - Selection Process and
Statutory Compliance - The opposite parties
argued that the selection should have followed
the U.P. Procedure for Direct Recruitment for
Group 'C' Post Rules, 2002 - Held, the selection
was governed by the Uttar Pradesh Municipal
Corporation Act, 1959, and Uttar Pradesh Nagar
Mahapalika Sewa Niyamavali, 1962, as the
Municipal
Corporation
is
an
autonomous
statutory body - The selection process complied
with Section 107(3) and Rule 17 of the 1962
Rules, and the opposite parties' reliance on the
2002 Rules was misplaced, as these apply to St.
Government
employees,
not
Municipal
Corporation employees. (Paras 8, 9, 19, 23, 30,
32, 41(4))

Service Law - Limitation on Appointments
Beyond Advertised Vacancies - The
opposite parties claimed a right to continue
based on their appointment letters and over five
years of service - Held, appointments beyond
the advertised 72 backlog vacancies (40 OBC,
27 SC, 5 ST) are impermissible under Articles 14
and 16(1) of the Constitution, as established in
Vivek Kaisth , Rakhi Ray , and Mukul Saikia -
The select list was exhausted upon filling the
advertised vacancies, and the opposite parties,
not being in the final select list, had no right to
claim appointment. (Paras 7, 9, 20, 21, 22, 31,
41(2))

Service Law - Estoppel in Challenging
Selection Process - The opposite parties,
having participated in the selection process
without protest, challenged it after failing to
secure appointment - Held, as per Karunesh
Kumar , candidates who participate in a validly
conducted selection process are estopped from
challenging
it
after
being
unsuccessful,
reinforcing that the opposite parties had no
right
to
claim
appointment
beyond
the
advertised vacancies. (Paras 27, 41(3))

Judicial Review - Tribunal's Overreach
Beyond Pleadings - The Tribunal allowed the
claim petitions, relying on the 2002 Rules,
despite no such pleading by the opposite parties
- Held, the Tribunal erred in granting relief
beyond the pleadings, violating settled law in
Mrs. Akella Lalitha and Messrs. Trojan & Co.
Ltd. , as courts cannot grant relief not prayed
for, leading to a miscarriage of justice - The
Tribunal's orders were set aside. (Paras 24, 25,
26, 42)

Writ Petitions Allowed.

Tribunal's Orders Dated 16.08.2021 Quashed -
Claim Petitions Dismissed.

List of Cases Cited :

## Text

_Characters 0–39,611 of 66,255. This is a partial read: ask again with offset=39611 for what follows._

3 All. Lucknow Nagar Nigam Vs. State Public Service Tribunal & Anr.
741
discretion under Article 226 of the
Constitution of India and interfere with the
order of termination.

9. Replying to the aforesaid
submissions,
Sri
Pandey
for
the
Management, submits that this is a case
where the charges are serious enough that
warrant the dismissal of the petitioner. The
charges were inquired into in accordance
with the procedure prescribed but the
petitioner failed to cooperate with the
inquiry and, therefore, the impugned order
is justified. He submits that the reply, which
was given by the petitioner, was absolutely
unsatisfactory and not only this, his
conduct in the institution is such that it is
not desirable to continue him further in
service. Sri Pandey, therefore, submits that
the impugned order does not require any
interference and the findings of fact
recorded cannot be a subject matter of
appeal before this Court under Article 226
of the Constitution of India.

10. Having heard learned counsel
for the parties and having considered the
decisions that have been cited at the bar,
the interference in service matters relating
to employees of minority institutions is
limited to the extent of violation of
procedure
prescribed
under
the
Regulations, provided they are regulatory
in nature, and do not impinge upon the
fundamental
rights
guaranteed
under
Article 30 of the Constitution of India. The
judgments, which have been relied upon by
the learned counsel for the petitioner,
permits such interference and in the instant
case the stand taken by the petitioner is
that the inquiry is vitiated for noncompliance of Regulations 35 to 37 of
Chapter III of the 1921 Act.

11. I have perused the impugned
order and the opening part thereof clearly
recites
the
manner
in
which
the
Management has proceeded to consider the
non-cooperation of the petitioner as one of
the grounds for proceeding to pass the
termination
order.
Regulation
37
of
Chapter III categorically requires that after
the inquiry is concluded, the report of the
Enquiry Officer shall be considered by the
Committee of Management and then the
Committee shall offer an opportunity to the
delinquent employee to give his explanation
and hear him before passing the order of
termination. There is no material discussed
by the District Inspector of Schools to
enable this Court to infer that the
Committee had ever complied with the said
provision. The order impugned dated
15.4.2013 is clearly deficient on this
aspect. Learned counsel for the respondent
- Committee of Management, therefore,
could not support the order on this ground.
The impugned order, therefore, being in
violation of Regulation 37 of Chapter-III of
1921 Act cannot be sustained."

12. In view of the above, this writ
petition succeeds and is allowed.

13. The order of termination of
service of the petitioner dated 17.09.2018
and the enquiry report dated 15.09.2018
are, accordingly, hereby quashed. The
petitioner shall be reinstated in service and
shall be paid salary. It is however, left open
for the respondents to proceed afresh in
accordance with law, if so desire.
----------
(2024) 3 ILRA 741
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.03.2024
BEFORE
THE HON'BLE ATTAU RAHMAN MASOODI,
J.
HON'BLE BRIJ RAJ SINGH, J.

Writ A No. 28394 of 2021
connected with
742 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ A No. 28396 of 2021

Lucknow Nagar Nigam ...Petitioner
Versus
State Public Service Tribunal & Anr.
 ...Respondents

Counsel for the Petitioner:
Vishal Kumar Upadhyay, Namit Sharma

Counsel for the Respondents:
Shikhar Anand, Amit Kumar, Birendra
Kumar Yadav, Lalta Prasad Misra, M.K.
Yadav, Satendra Jaiswal

Service Law - Validity of Appointment and
Cancellation - Fraudulent Appointment
Letters - The answering opposite parties no.2
(Rajesh Kumar and Sachin Kumar) challenged
the cancellation of their appointment letters
dated 27.08.2016, confirmed on 08.09.2017 and
27.11.2019, alleging wrongful termination -
Held, the appointment letters were fraudulent,
issued in connivance with Municipal Corporation
officials, as the opposite parties did not figure in
the final select list, having scored below the cutoff marks of 32 (24.14 and 30.86 respectively) -
The
cancellation
was
upheld
after
due
opportunity
of
hearing,
as
fraudulent
appointments confer no right to continue in
service, supported by an FIR lodged against
involved employees. (Paras 2, 3, 7, 18, 35,
41(1))

Service Law - Selection Process and
Statutory Compliance - The opposite parties
argued that the selection should have followed
the U.P. Procedure for Direct Recruitment for
Group 'C' Post Rules, 2002 - Held, the selection
was governed by the Uttar Pradesh Municipal
Corporation Act, 1959, and Uttar Pradesh Nagar
Mahapalika Sewa Niyamavali, 1962, as the
Municipal
Corporation
is
an
autonomous
statutory body - The selection process complied
with Section 107(3) and Rule 17 of the 1962
Rules, and the opposite parties' reliance on the
2002 Rules was misplaced, as these apply to St.
Government
employees,
not
Municipal
Corporation employees. (Paras 8, 9, 19, 23, 30,
32, 41(4))

Service Law - Limitation on Appointments
Beyond Advertised Vacancies - The
opposite parties claimed a right to continue
based on their appointment letters and over five
years of service - Held, appointments beyond
the advertised 72 backlog vacancies (40 OBC,
27 SC, 5 ST) are impermissible under Articles 14
and 16(1) of the Constitution, as established in
Vivek Kaisth , Rakhi Ray , and Mukul Saikia -
The select list was exhausted upon filling the
advertised vacancies, and the opposite parties,
not being in the final select list, had no right to
claim appointment. (Paras 7, 9, 20, 21, 22, 31,
41(2))

Service Law - Estoppel in Challenging
Selection Process - The opposite parties,
having participated in the selection process
without protest, challenged it after failing to
secure appointment - Held, as per Karunesh
Kumar , candidates who participate in a validly
conducted selection process are estopped from
challenging
it
after
being
unsuccessful,
reinforcing that the opposite parties had no
right
to
claim
appointment
beyond
the
advertised vacancies. (Paras 27, 41(3))

Judicial Review - Tribunal's Overreach
Beyond Pleadings - The Tribunal allowed the
claim petitions, relying on the 2002 Rules,
despite no such pleading by the opposite parties
- Held, the Tribunal erred in granting relief
beyond the pleadings, violating settled law in
Mrs. Akella Lalitha and Messrs. Trojan & Co.
Ltd. , as courts cannot grant relief not prayed
for, leading to a miscarriage of justice - The
Tribunal's orders were set aside. (Paras 24, 25,
26, 42)

Writ Petitions Allowed.

Tribunal's Orders Dated 16.08.2021 Quashed -
Claim Petitions Dismissed.

List of Cases Cited :

1. Vivek Kaisth & anr.Vs St. of H.P. & ors. ,
(2023) SCC

2. Rakhi Ray & ors. Vs High Court of Delhi &
ors. , (2010) 2 SCC 637
3 All. Lucknow Nagar Nigam Vs. State Public Service Tribunal & Anr.
743
3. Mukul Saikia & ors. Vs St. of Assam & ors. ,
(2009) 1 SCC 386

4. The St. of Uttar Pradesh Vs Karunesh Kumar
& ors. , (2022) SCC Online SC 1706

5. Anmol Kumar Tiwari & ors. Vs The St. of
Jharkhand & ors. , Civil Appeal Nos. 429-430 of
2021, decided on 18.02.2021

6. Vikas Pratap Singh & ors. Vs The St. of
Chhattisgarh & ors. , Civil Appeal Nos. 53185319 of 2023, decided on 09.07.2013

7. Md. Zamil Ahmed Vs St. of Bihar & ors. ,
2016 (34) LCD 3085

8. Mrs. Akella Lalitha Vs Sri Konda Hanumantha
Rao & anr. , (2022) Live Law (SC) 638

9. Messrs. Trojan & Co. Ltd. Vs Rm.N.N.
Nagappa Chettiar , AIR 1953 SC 235

10. Bharat Amratlal Kothari & anr.Vs Dosukhan
Samadkhan Sindhi & ors. , AIR 2010 SC 475

11. U.O.I. & ors. Vs Ishwar Singh Khatri & ors. ,
(1992) Supp 3 SCC 84

12. Gujarat St. Deputy Executive Engineers'
Association Vs St. of Gujarat & ors. , (1994)
Supp 2 SCC 591

13. St. of Bihar & ors. Vs The Secretariat
Assistant S.E. Union 1986 & ors. , AIR 1994 SC
736

14. Prem Singh & ors. Vs Haryana St. Electricity
Board & ors. , (1996) 4 SCC 319

15. Ashok Kumar & ors. Vs Chairman, Banking
Service Recruitment Board & ors. , AIR 1996 SC
976

16. St. of Punjab Vs Raghbir Chand Sharma &
ors. , AIR 2001 SC 2900

17. Anupal Singh , (referred in Karunesh Kumar
)

18. Madan Lal Vs St. of J&K , (1995) 3 SCC 486

19. K.H. Siraj Vs High Court of Kerala , (2006) 6
SCC 395

20. U.O.I. Vs S. Vinodh Kumar , (2007) 8 SCC
100

21. Chandra Prakash Tiwari Vs Shakuntala
Shukla , (2002) 6 SCC 127

22. Sadananda Halo Vs Momtaz Ali Sheikh ,
(2008) 4 SCC 619

23. Om Prakash Shukla Vs Akhilesh Kumar
Shukla , 1986 Supp SCC 285

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Both the writ petitions under
Article 226 of the Constitution of India
have been filed seeking quashing of the
impugned judgement and orders dated
16.08.2021 passed by the State Public
Services Tribunal (for short "the Tribunal"),
whereby the claim petitions filed by Rajesh
Kumar and Sachin Kumar (hereinafter
referred to as "the answering opposite
parties no.2") impugning the orders dated
27.08.2016 along with consequential orders
dated
08.09.2017
and
27.11.2019
cancelling their appointment letters, have
been allowed.

Brief Facts:-

2. Nagar Nigam, Lucknow issued an
advertisement to fill up 72 backlog posts
for clerical cadre under Other Backward
Class, Scheduled Caste and Scheduled
Tribe categories, which includes 40 posts
for Other Backward Class category, 27
posts for Scheduled Caste category and 5
posts for Scheduled Tribe category. In the
advertisement, the requisite qualification
has been prescribed that the candidate
should
have
possessed
Intermediate
qualification with 25 words per minute
Hindi typing speed. In pursuance of the
744 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid
advertisement,
answering
opposite parties no.2 applied from Other
Backward Class and Scheduled Caste
category
and
cleared
the
written
examination. Thereafter, call letters were
issued to the answering opposite parties
no.2 for typing test vide letter dated
13.10.2009. Answering opposite parties
no.2 were successful in typing test and,
therefore, they were called for interview on
12.4.2010 and 24.4.2010 respectively.
Thereafter, select list was prepared by the
selection committee and the cut off marks
for selection was 32 for Other Backward
Class and Scheduled Caste categories,
whereas answering opposite parties no.2
had secured 24.14 and 30.86 marks
respectively, therefore, they were not
selected. However, surprisingly answering
opposite
parties
no.2
were
issued
appointment letters on 26.2.2011 in spite of
the fact that they were not selected and they
were given the joining on 9.8.2011 and
6.9.2011 respectively.

3. An FIR at Case Crime No.588 of
2013, under Section 408 IPC, Police
Station Hazratganj, District Lucknow came
to be lodged on 28.12.2013 against the
employees of the Nagar Nigam, who were
involved in committing the fraud in issuing
fake appointment letters to the answering
opposite parties no.2 and others. On
coming to know the factual situation that
answering opposite parties no.2 were
working though they were not selected, but
their appointment letters were cancelled by
the competent authority vide order dated
27.8.2016.

4. Aggrieved by the aforesaid orders,
answering opposite parties no.2 filed Writ
Petition Nos.21568 (SS) of 2016 and 22118
(SS) of 2016 respectively before this Court.
The said writ petitions were disposed of by
this Court vide order dated 28.9.2016 with
the direction that answering opposite
parties
no.2
would
be
afforded
an
opportunity of hearing by issuing a show
cause notice along with a copy of the select
list and, thereafter, appropriate order would
be passed. In compliance of the order dated
28.9.2016, show cause notices were issued
to answering opposite parties no.2 on
27.10.2016, to which they filed reply on
13.12.2016 and 19.12.2016 respectively.
After considering the reply and affording
opportunity
of
hearing
to
answering
opposite parties no.2, the competent
authority passed the order on 8.9.2017, by
which
the
order
of
cancellation
of
appointment letters of answering opposite
parties no.2 were confirmed.

5. Feeling aggrieved against the
orders passed by the competent authority,
answering opposite parties no.2 preferred
departmental
appeals
before
the
Commissioner,
Lucknow
Division,
Lucknow, which too were rejected vide
order
dated
27.11.2019.
Answering
opposite
parties
no.2 challenged
the
respective orders i.e. 27.8.2016, 8.9.2017
and 27.11.2019 before the Tribunal by way
of Claim Petition Nos.2174 of 2019 and
2199 of 2019 respectively.

6. The Nagar Nigam filed written
statement in the claim petitions by giving
para-wise reply and after hearing the
parties and perusing the material on record,
the Tribunal allowed both the claim
petitions by means of the impugned
judgement/orders. Hence the present writ
petitions have been filed by the petitioner.

Submissions
on
behalf
of
the
petitioner

7. Sri S.C. Mishra, learned Senior
Advocate assisted by Sri Namit Sharma,
3 All. Lucknow Nagar Nigam Vs. State Public Service Tribunal & Anr.
745
learned counsel for the petitioner has
submitted that an advertisement was issued
on 13.11.2008 for filling up 72 backlog
posts of clerical cadre (40 for OBC
category, 27 for SC category and 5 for ST
category). He has further submitted that for
Other Backward Class category, 4368
candidates appeared at the time of typing
test, out of which 939 candidates were
declared successful for interview. The
interview was held and the names of 40
candidates figured in the select list
prepared by the selection committee and
the opposite party no.2 (Rajesh Kumar)
was not selected as he scored 24.14 marks,
which was below the cut off marks i.e. 32
marks. Similarly, 4701 candidates applied
in the category of Scheduled Caste, out of
which 1173 candidates were declared
successful for interview, including opposite
party no.2. However, after completion of
interview process, the final select list was
prepared and 27 candidates were selected
under the Scheduled Caste category and
opposite party no.2 (Sachin Kumar) was
not selected as he scored 30.86 marks,
which was below the cut off marks i.e. 32
marks. It has further been submitted that
average marks were awarded by calculating
the marks given by all members of the
committee.

8. Learned counsel for the petitioner
has further submitted that answering
opposite
parties
no.2
managed
their
appointment letters by playing fraud in
connivance with certain employees of the
department, against whom an FIR was also
lodged. The appointment letters obtained
by the answering opposite parties no.2 are
fraudulent papers and on the basis of which
they cannot claim any right to continue in
service because they were not selected in
the merit list. It has also been submitted
that learned counsel for the answering
opposite parties no.2 has wrongly relied
upon the U.P. Procedure for Direct
Recruitment for Group 'C' Post (Outside the
Purview of the U.P. Public Service
Commission) Rules, 2002 and amended in
2003 (hereinafter referred to as "the Rules,
2002") for the present recruitment as the
Municipal Corporation is an autonomous
statutory body having its own Act i.e. Uttar
Pradesh Municipal Corporation Act, 1959
(for short "the Act, 1959") and the Rules
i.e. Uttar Pradesh Nagar Mahapalika Sewa
Niyamavali, 1962 (for short "the Rules,
1962"), which are holding the field for
selection.

9. Lastly, it has been submitted by the
learned counsel for the petitioner that 72
backlog vacancies have been filled up in
pursuance of the procedure envisaged
under Section 107(3) of the Act, 1959 read
with Rule 17 of Rules, 1962. The selection
is based on the basis of transparent open
procedure as per statutory requirement and
standard. The answering opposite parties
no.2 were not successful in the selection
and their names do not find place in the
select list, therefore, their appointment de
hors the Rules and they cannot claim any
right to continue in the department in
absence of valid appointment letters.

10. In support of his contentions,
learned counsel for the petitioner has
placed
reliance
on
the
following
judgements:-

1. Vivek Kaisth and another
vs. State of Himachal Pradesh and others,
reported in (2023) SCC;

2. Rakhi Ray and others vs. High
Court of Delhi and others, reported in
(2010) 2 SCC 637;

3. Mukul Saikia and others vs.
State of Assam and others, reported in
(2009) 1 SCC 386; and
746 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The State of Uttar Pradesh vs.
Karunesh Kumar and others, reported in
(2022) SCC Online SC 1706

Rival submissions on behalf of
opposite parties no.2

11. Dr. L.P. Misra, learned counsel for
opposite parties no.2 has submitted that
answering opposite parties no.2 have not
committed any fraud or misrepresentation,
rather they were issued the appointment
letters and thereafter they joined their
services. Their names also figured in the
seniority list and they had worked for more
than five years in the department. Services
of answering opposite parties no.2 have
been dispensed with on the ground that
they were not selected and their names do
not find place in the select list though
answering
opposite
parties
no.2
had
appeared in interview after passing out the
written examination and they were also
issued the appointment letters.

12. Learned counsel for opposite
parties no.2 has further submitted that the
Tribunal has passed well reasoned orders
after summoning the records of the
selection committee and the Tribunal found
that answering opposite parties no.2 were
appointed as per the terms and conditions
enumerated in the advertisement and as per
the provisions of the Rules, 2002. Learned
counsel has also submitted that the
selection was held as per the Rules, 2002
and as per the terms and conditions
mentioned in the advertisement.

13. Learned counsel for answering
opposite parties no.2 by placing reliance on
the advertisement dated 13.11.2008, has
submitted that in the advertisement itself, it
is mentioned that the selection will be made
in accordance with Rules, 2002. He has
further
submitted
that
procedure
for
selection by the petitioner was adopted
under Rules, 2002 and the petitioner has
not produced any relevant record indicating
that any selection had taken place as per the
Rules, 2002.

14. The other argument advanced by
the learned counsel for the opposite parties
no.2 is that the opposite parties no.2 had
worked for more than five years in the
department and they did not play any fraud,
therefore, they are entitled to continue their
services. The appointment letters were
issued and the opposite parties no.2 were
placed in the tentative seniority list.

15. In support of his contention,
learned counsel for the opposite parties
no.2 has placed reliance on the following
judgements:-

1. Civil Appeal Nos.429-430 of
2021, Anmol Kumar Tiwari and others Vs.
The State of Jharkhand and others,
decided on 18.02.2021;

2. Civil Appeal Nos.5318-5319 of
2023, Vikas Pratap Singh and others Vs.
The State of Chhattisgarh and others,
decided on 9.7.2013;

3. Md. Zamil Ahmed Vs. State of
Bihar and others, 2016 (34) LCD 3085

16. We have heard learned counsel for
the petitioner and the learned counsel for
the opposite parties no.2.

17. For ascertaining the correct facts
and proper decision of the cases, we have
summoned the original record pertaining to
the selection in question and the same has
been perused.

Analysis on the submissions of
the learned counsel for the petitioner
3 All. Lucknow Nagar Nigam Vs. State Public Service Tribunal & Anr.
747

18. The argument of learned counsel
for the petitioner that the answering
opposite parties no.2 have no right to
continue in the department as they were not
selected, has force for the reason that after
perusing the original record, we noticed
that in the final select list, 40 candidates
were
recommended
from
the
Other
Backward Class category and 27 candidates
from the Scheduled Caste category, in
which names of answering opposite parties
no.2 did not figure. The appointment letters
issued to the opposite parties no.2 are
fictitious documents and the same were
obtained in connivance with the officials of
the Municipal Corporation. Once opposite
parties no.2 were not selected and their
names did not find place in the final select
list, there was no occasion to issue the
appointment letters to continue them in the
department for more than five years.

19. The argument of learned counsel
for the petitioner that the selection has been
held in pursuance of the provisions
contained in Section 107 of the Act, 1959
read with Rule 17 of Rules, 1962, has also
force as the law is settled that a thing
should be done in a manner it is provided to
be done under law and no other manner.
The Municipal Corporation is a legal entity
and has got its own Act and the Rules,
wherein the procedure for selection is
envisaged leaving no scope to opposite
parties no.2 to claim that the selection was
required to be done in consonance with
Rules, 2002.

20. In the case of Vivek Kaisth
(supra), which has been relied upon by the
learned counsel for the petitioner, it is
provided that the appointment can only be
made against the vacancies which have
been
advertised
and
not
beyond.
Paragraphs 32, 33 and 34 of the aforesaid
case are extracted herein-below:-

"32. In Rakhi Ray & Ors. v. High
Court of Delhi & Ors. (2010) 2 SCC 637,
the practice of making appointments on
future vacancies from the waiting list was
held to be wrong. "In case the vacancies
notified stand filled up, the process of
selection comes to an end. Waiting list, etc.
cannot be used as a reservoir, to fill up the
vacancy which comes into existence after
the issuance of notification/advertisement.
The unexhausted select list/ waiting list
becomes meaningless and cannot be
pressed in service any more"3.

33. We are referring to the
position of law on "waiting list" because
one of the arguments of the appellants (in
connected appeals) before us is that, since
in any case there was a direction in Malik
Mazhar-2 for having a "waiting list",
therefore the names of those two appellants
ought to have been considered as names
from the "waiting list". In our opinion, this
cannot be done, as the question would still
remain whether selection/appointment can
be made on vacancies, which were never
advertised, apart from the fact that this
would in any case go against the very
concept of a 'waiting list' that we have
explained above. The vacancies on which
the appointments have been made could not
be anticipated Para 12 at the time of
advertisement (February 1st, 2013), and
hence these vacancies were not advertised.
These two vacancies were in fact, created
on 18.03.2013 i.e., after the notification of
vacancies on 01.02.2013. These were the
"future vacancies", which earlier could fall
under the "C" category given in Malik
Mazhar but were deleted in Malik Mazhar2. These vacancies technically could only
be filled next year and should have been
notified by January 15th, 2014 as per the
directions in Malik Mazhar. The argument
of the appellants (in connected appeals),
particularly against the present appellants,
748 INDIAN LAW REPORTS ALLAHABAD SERIES
that had there been a waiting list they could
have been considered for appointment in
that category for these vacancies, in our
opinion, is a complete misunderstanding of
the concept of a "waiting list".

34. To sum up the position of law
as it stands, once clear and anticipated
vacancies
have
been
advertised,
appointments can only be made on these
vacancies. Vacancies which could not be
anticipated
before
the
date
of
advertisement, or the vacancies which did
not exist at the time of advertisement, are
the vacancies for the future i.e., next
selection process. Malik Mazhar mandates
yearly selection/appointment on the post of
Civil Judge (Junior Division). There is a
time line fixed, and 'vacancies' have to be
declared on January 15th of each year. The
process has to be completed by October of
the same year. Once this is followed, as it
ought to be, the object sought to be
achieved (under the guidelines given in
Malik Mazhar), of timely filling of judicial
vacancies is achieved."

21. The second case which has been
relied upon by the learned counsel for the
petitioner is Rakhi Ray (supra), in which it
is held that any appointment made beyond
the number of vacancies advertised, is
without jurisdiction. Paragraphs 7, 10, 11,
12 and 13 of the aforesaid case are
extracted herein below:-

"7. It is a settled legal proposition
that vacancies cannot be filled up over and
above the number of vacancies advertised
as "the recruitment of the candidates in
excess of the notified vacancies is a denial
and deprivation of the constitutional right
under Article 14 read with Article 16(1) of
the Constitution", of those persons who
acquired eligibility for the post in question
in accordance with the statutory rules
subsequent to the date of notification of
vacancies. Filling up the vacancies over the
notified vacancies is neither permissible
nor desirable, for the reason, that it
amounts to "improper exercise of power
and only in a rare and exceptional
circumstance and in emergent situation,
such a rule can be deviated and such a
deviation is permissible only after adopting
policy decision based on some rational",
otherwise the exercise would be arbitrary.
Filling up of vacancies over the notified
vacancies amounts to filling up of future
vacancies and thus, not permissible in law.
(Vide Union of India & Ors. v. Ishwar
Singh Khatri & Ors. (1992) Supp 3 SCC
84;
Gujarat
State
Deputy
Executive
Engineers' Association v. State of Gujarat
& Ors. (1994) Supp 2 SCC 591; State of
Bihar & Ors. v. The Secretariat Assistant
S.E. Union 1986 & Ors AIR 1994 SC 736;
Prem Singh & Ors. v. Haryana State
Electricity Board & Ors. (1996) 4 SCC
319; and Ashok Kumar & Ors. v.
Chairman, Banking Service Recruitment
Board & Ors. AIR 1996 SC 976).

10. In State of Punjab v. Raghbir
Chand Sharma & Ors. AIR 2001 SC 2900,
this Court examined the case where only
one post was advertised and the candidate
whose name appeared at Serial No. 1 in the
select list joined the post, but subsequently
resigned. The Court rejected the contention
that post can be filled up offering the
appointment to the next candidate in the
select list observing as under:- "With the
appointment of the first candidate for the
only post in respect of which the
consideration came to be made and select
list prepared, the panel ceased to exist and
has outlived its utility and at any rate, no
one else in the panel can legitimately
contend that he should have been offered
appointment either in the vacancy arising
on account of the subsequent resignation of
3 All. Lucknow Nagar Nigam Vs. State Public Service Tribunal & Anr.
749
the person appointed from the panel or any
other vacancies arising subsequently."

11. In Mukul Saikia & Ors. v.
State of Assam & Ors. AIR 2009 SC 747,
this Court dealt with a similar issue and
held
that
"if
the
requisition
and
advertisement was only for 27 posts, the
State cannot appoint more than the number
of posts advertised". The Select List "got
exhausted when all the 27 posts were
filled". Thereafter, the candidates below the
27 appointed candidates have no right to
claim appointment to any vacancy in
regard to which selection was not held. The
"currency of Select List had expired as
soon as the number of posts advertised are
filled up, therefore, the appointments
beyond the number of posts advertised
would
amount
to
filling
up
future
vacancies"
and
said
course
is
impermissible in law.

12. In view of above, the law can
be summarised to the effect that any
appointment made beyond the number of
vacancies
advertised
is
without
jurisdiction, being violative of Articles 14
and 16(1) of the Constitution of India, thus,
a nullity, inexecutable and unenforceable in
law. In case the vacancies notified stand
filled up, process of selection comes to an
end. Waiting list etc. cannot be used as a
reservoir, to fill up the vacancy which
comes into existence after the issuance of
notification/
advertisement.
The
unexhausted select list/waiting list becomes
meaningless and cannot be pressed in
service any more.

13. In the instant case, as 13
vacancies of the General Category had
been advertised and filled up, the selection
process so far as the General Category
candidates is concerned, stood exhausted
and the unexhausted select list is meant
only to be consigned to record room."

22. Similar view has been taken in the
case of Mukul Saikia (supra), in which the
Supreme Court has reiterated the legal
position to the extent that the State cannot
appoint more persons than the number of
vacancies advertised. Paragraphs 33, 43
and 44 of the aforesaid case are extracted
herein-below:-

"33.At the outset it should be
noticed that the select list prepared by
APSC could be used to fill the notified
vacancies and not future vacancies. If the
requisition and advertisement was only for
27 posts, the State cannot appoint more
than the number of posts advertised, even
though APSC had prepared a select list of
64 candidates. The selection list got
exhausted when all the 27 posts were filled.
Thereafter, the candidates below the 27
appointed candidates have no right to
claim appointment to any vacancy in
regard to which selection was not held. The
fact that evidently and admittedly the
names of the appellants appeared in the
select list dated 17.07.2000 below the
persons who have been appointed on merit
against the said 27 vacancies, and as such
they could not have been appointed in
excess of the number of posts advertised as
the currency of select list had expired as
soon as the number of posts advertised are
filled up, therefore, appointments beyond
the number of posts advertised would
amount to filling up future vacancies meant
for direct candidates in violation of quota
rules. Therefore, the appellants are not
entitled to claim any relief for themselves.
The question that remains for consideration
is whether there is any ground for
challenging the regularization of the
private respondents.

"43. Annexure-1 attached
to
Service Order, 1994 contains class of posts,
cadre of posts, cadre strength, scale of pay
750 INDIAN LAW REPORTS ALLAHABAD SERIES
and qualifications & experience for the
service. At serial No. 3, in Class II the total
cadre strength of CDPOs has been shown
as 68 in the pay scale of Rs.1635-3950/-.
Column 6 of Annexure I prescribes that 40
per cent of the posts of CDPOs have to be
filled up by promotion from amongst the
persons who have rendered 10 years of
continuous
service
in
the
cadre
of
ACDPOs/Assistant Superintendent Homes
and Allied Cadre and 60 per cent by direct
recruitment. The private respondents, no
doubt, were appointed on ad hoc basis and
admittedly they have not completed 10
years of continuous service in the cadre of
ACDPOs, but the State of Assam, with the
approval of the Cabinet, decided to
regularize the services of the appellants as
a special case by giving relaxation under
para 11 of the Service Order. Therefore, the
decision of the Cabinet pursuant whereof
the State Government issued Notification
cannot be held to be arbitrary and
irrational. The appellants fall in different
categories and they have no enforceable
right to challenge the regularization of the
private
respondents
who
have
been
regularized against the vacancies meant for
promotional quota. In their writ petition,
they have prayed for their appointment
because their names were included in the
select list by the APSC against the direct
quota. The State Government appointed 27
persons in order of merits out of the select
list prepared by the APSC, as such the
appellants being selectees cannot claim
appointment as a matter of right in excess
to the advertised vacancies.

44. It is well settled law that
filling up of the vacancies over and above
the number of vacancies advertised would
be violative of Articles 14 and 16 of the
Constitution of India. Mere inclusion of the
appellants in the select list of the direct
appointees does not confer any right on
them to be appointed against the vacancies
reserved for promotees."

23. The argument advanced by the
learned counsel for the petitioner that the
Tribunal travelled beyond the pleadings of
the claim petitions filed by opposite parties
no.2 as there was no pleading in the claim
petitions that the selection ought to have
been done in consonance with Rules, 2002,
is also acceptable as we have already
discussed
above
that
the
Municipal
Corporation has got its own enacted
provisions,
in
which
the
selection
procedure for appointment is provided; thus
there is no reason to subscribe to the view
that the selection ought to have been held
in accordance with the provisions of Rules,
2002,
which
are
applicable
to
the
employees of the State Government.

24.

So
far
the
impugned
judgement/order passed by the Tribunal in
regard to exercise of its jurisdiction is
concerned, we find that the Tribunal
travelled beyond the pleadings of the claim
petitions filed by opposite parties no.2 as
there was no pleading in the claim petitions
that the selection ought to have been done
in consonance with Rules, 2002. It is
settled law that relief should be based on
pleadings. If a Court considers or grants a
relief for which no prayer or pleadings was
made depriving the other party of an
opportunity to oppose or resist such relief,
it would lead to miscarriage of justice.

25. Hon'ble Supreme Court in the
case of Mrs. Akella Lalitha Vs. Sri Konda
Hanumantha Rao and another, (2022)
Live
Law
(SC)
638
(Civil Appeal
Nos.6325-6326
of
2015,
decided
on
28.07.2022),
while
dealing
with
the
question
of
jurisdiction
and
while
considering the judgements of the Supreme
3 All. Lucknow Nagar Nigam Vs. State Public Service Tribunal & Anr.
751
Court in regard to question of jurisdiction,
held as under:-

"................. It is settled law that
relief not found on pleadings should not be
granted. If a Court considers or grants a
relief for which no prayer or pleading was
made depriving the respondent of an
opportunity to oppose or resist such relief,
it would lead to miscarriage of justice.

16. In the case of Messrs. Trojan
& Co. Ltd. Vs. Rm.N.N. Nagappa Chettiar,
AIT 1953 SC 235, this Court considered the
issue as to whether relief not asked for by a
party could be granted and that too without
having proper pleadings. The Court held as
under:-

"It is well settled that the decision
of a case cannot be based on grounds
outside the pleadings of the parties and it is
the case pleaded that has to be found.
Without an amendment of the plaint, the
Court was not entitled to grant the relief
not asked for and no prayer was ever made
to amend the plaint so as to incorporate in
it an alternative case."

17. In the case of Bharat
Amratlal Kothari & Anr. Vs. Dosukhan
Samadkhan Sindhi & Ors., AIR 2010 SC
475 held:

"Though the Court has very wide
discretion in granting relief, the Court,
however, cannot, ignoring and keeping
aside the norms and principles governing
grant of relief, grant a relief not even
prayed for by the petitioner."

26. In view of the aforesaid settled
legal position, we find that the Tribunal has
erred in traversing beyond the pleadings
though the Court has very wide discretion
in granting relief, which does not imply,
that it can grant a relief beyond what was
prayed by the party before it ignoring and
keeping aside the norms and principles
governing grant of relief. Therefore, to that
extent also, the impugned judgement/order
passed by the Tribunal is liable to be set
aside.

27. The last argument advanced by
the learned counsel for the petitioner that
answering
opposite
parties
no.2
had
participated in the selection, therefore, they
cannot be allowed to challenge the
selection proceedings, seems to have force
as the case set up before us is not a case
that the conditions of recruitment were in
any manner violated or there was any thing
wrong with the selection or the eligibility
of any candidate. It is settled principle that
a person should be estopped to challenge
the selection proceedings in case he
participated in the selection held validly.
The said view has been expressed by the
Supreme Court in the case of Karunesh
Kumar (supra). Paragraph 21 of the
aforesaid case is extracted herein below:-

"21.
A
candidate
who
has
participated in the selection process
adopted under the 2015 Rules is estopped
and
has
acquiesced
himself
from
questioning it thereafter, as held by this
Court in the case of Anupal Singh (supra):

"55. Having participated in the
interview, the private respondents cannot
challenge the Office Memorandum dated
12-10-2014 and the selection. On behalf of
the appellants, it was contended that after
the revised Notification dated 12-10-2014,
the private respondents participated in the
interview without protest and only after the
result was announced and finding that they
were not selected, the private respondents
chose to challenge the revised Notification
dated 12-10- 2014 and the private
respondents are estopped from challenging
the selection process. It is a settled law that
a person having consciously participated in
752 INDIAN LAW REPORTS ALLAHABAD SERIES
the interview cannot turn around and
challenge the selection process.

56. Observing that the result of
the interview cannot be challenged by a
candidate who has participated in the
interview and has taken the chance to get
selected
at
the
said
interview
and
ultimately, finds himself to be unsuccessful,
in Madan Lal v. State of J&K [(1995) 3
SCC 486 : 1995 SCC (L&S) 712], it was
held as under : (SCC p. 493, para 9) "9. ...
The petitioners also appeared at the oral
interview conducted by the Members
concerned
of
the
Commission
who
interviewed the petitioners as well as the
contesting respondents concerned. Thus the
petitioners took a chance to get themselves
selected at the said oral interview. Only
because they did not find themselves to
have emerged successful as a result of their
combined performance both at written test
and oral interview, they have filed this
petition. It is now well settled that if a
candidate takes a calculated chance and
appears at the interview, then, only because
the result of the interview is not palatable
to him, he cannot turn round and
subsequently contend that the process of
interview was unfair or the Selection
Committee was not properly constituted."

57. In K.H. Siraj v. High Court of
Kerala [(2006) 6 SCC 395 : 2006 SCC
(L&S) 1345], it was held as under : (SCC
p. 426, para 73) "73. The appellantpetitioners having participated in the
interview in this background, it is not open
to the appellant-petitioners to turn round
thereafter when they failed at the interview
and contend that the provision of a
minimum mark for the interview was not
proper."

58. In Union of India v. S. Vinodh
Kumar [(2007) 8 SCC 100 : (2007) 2 SCC
(L&S) 792], it was held as under : (SCC p.
107, para 19) "19. In Chandra Prakash
Tiwari v. Shakuntala Shukla [(2002) 6 SCC
127 : 2002 SCC (L&S) 830] ....

xxx xxx xxx It was further
observed : (SCC p.