# Mahesh Chand & Anr v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 2054
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-19
- **Case number:** Writ A No. 46317 of 2005
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-chand-anr-v-state-of-u-p-ors-44695
- **Pages:** 5

## Headnote

A. Employees Services Rules, 1985 -
Rules
16,
19-When
the
procedure
undertaken for recruitment was not
correct- no illegality whereby financial
approval was not granted -Petitioners
have sought a writ of certiorari for
quashing
order
dated
19.05.2005,
passed by District Inspector of Schools,
whereby
financial
approval
to
the
appointment of petitioners was declined.
Dismissing this petition, the High Court
held - The procedure undertaken for
recruitment was defective - No record to
show how the Selection Committee was
formed. Provisions of Rules of 1985 were
not strictly complied with. (Para 10 & 12)

Writ
petition
challenges
order
dated
05.05.2005, passed by the District Inspector of
Schools, Mainpuri.

Writ Petition dismissed (E-4)

## Text

2054 INDIAN LAW REPORTS ALLAHABAD SERIES
that the procedure offered under the 1955
Rules adopted by the Government or the
Committee as well as the action take by the
Government are not correct in law."

(emphasis supplied)

122. On specific query, learned
Additional Advocate General submits that all
the petitioners herein who obtained 50%
minimum marks (qualifying marks) were
allowed to participate in the subsequent stages
of selection i.e. physical standard test,
document verification and physical efficiency
test. It is, therefore, urged that the Selection
Board would not be required to undertake any
fresh exercise of selection/recrutiment in
preparation of the select list in order to merit.

123. Having due regard to the facts
and circumstances of the case and the
provisions mandated by the Recruitment
Rules, the writ petition is allowed by
passing the following orders:

i) the select list dated 28
February, 2019 is set aside and quashed;

ii) the candidates having failed to
obtain 50% marks (raw marks) in each subject
are
declared
ineligible
for
recruitment/selection;

iii) the Selection Board shall
prepare the select list in order to merit on
normalized score, derived by Standardized
Equi-Percentile Method;

iv) Selection Board to comply the
order within six weeks from the date of filing
of certified copy of this order and the selected
candidates shall be sent for training.

124. No order as to costs.
----------

(2019)10ILR A 2054

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2019
BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ A No. 46317 of 2005

Mahesh Chand & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri P.K. Singh, Sri A.K. Dixit, Sri A. Kumar
Singh, Sri N.K. Maurya, Sri V.K. Singh.

Counsel for the Respondents:
C.S.C., S.C.

A. Employees Services Rules, 1985 -
Rules
16,
19-When
the
procedure
undertaken for recruitment was not
correct- no illegality whereby financial
approval was not granted -Petitioners
have sought a writ of certiorari for
quashing
order
dated
19.05.2005,
passed by District Inspector of Schools,
whereby
financial
approval
to
the
appointment of petitioners was declined.
Dismissing this petition, the High Court
held - The procedure undertaken for
recruitment was defective - No record to
show how the Selection Committee was
formed. Provisions of Rules of 1985 were
not strictly complied with. (Para 10 & 12)

Writ
petition
challenges
order
dated
05.05.2005, passed by the District Inspector of
Schools, Mainpuri.

Writ Petition dismissed (E-4)

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Petitioners have approached this
Court by way of filing present writ
petition seeking a writ of certiorari for
quashing the order dated 19.5.2005
passed by the District Inspector of
2 All. Mahesh Chand & Anr. Vs State of U.P. & Ors.
2055
Schools, Mainpuri, whereby financial
approval to the appointment of the
petitioners on Class IV posts in the
Government Girls Inter College Mainpuri
was declined.

2. A co-ordinate Bench of this
Court,
vide
order
dated
18.4.2014,
allowed the present writ petition and set
aside
the
impugned
order
dated
19.5.2005,
with
the
direction
to
respondent nos.2 and 3 to pay the salary
and
arrears
of
the
petitioners,
in
accordance with law.

3. State of U.P. being aggrieved,
preferred
Special
Appeal
Defective
No.177 of 2015 before the Division
Bench of this Court and the said appeal
was allowed, vide order dated 28.4.2017
wherein the order dated 18.4.2014 passed
by the co-ordinate Bench of this Court
was set aside and writ petition was
restored to decide afresh in the light of the
observations made in the order. The order
dated 28.4.2017 is mentioned hereinafter
:-

"Heard learned counsel for the
parties.

Cause shown for the delay of
277 days in filing of the instant appeal is
to the satisfaction of the Court.

Delay is condoned. The delay
condonation application stands allowed.

Heard learned counsel for the
parties.

The judgement and order under
appeal is liable to be set aside on a short
ground i.e. the learned Single Judge has
not examined as to what was the
constitution of the Selection Committee,
which had recommended the petitioners
for appointment on Class-IV posts in
Government
Girls
Inter
College,
Mainpuri
and
whether
procedure
prescribed has been followed or not.
Selection has to be in conformity with the
provision of 'Group D' Employees Service
(U.P.) Rules, 1985.

It has also to be ascertained as
to
whether
there
has
been
strict
compliance of the 'Group D' Employees
Service Rules, 1985, both in the matter of
publication of advertisement, invitation
for calling of name from employment
exchange
constitution
of
selection
committee and the procedure of selection
thereto. Since the aforesaid aspect of the
matter has escaped the attention of
learned Single Judge the judgement and
order dated 18.4.2014 is hereby set aside.

Mere deposit of the money with
the
advertisers
cannot
lead
to
a
presumption that advertisement infact had
been published in the news paper. The
petitioner had obliged to produce the
news paper in support of his contention
that there has been due advertisement. We
further find that learned Single Judge has
also not adverted to the issue of ban
imposed on Class-IV appointment, which
aspect in our opinion is also crucial
before any mandamus can be issued for
payment of salary mere information of the
vacancies / advertisement to the higher
authorities will not lead to presume that
the ban imposed by the State Government
has been diluted.
For all the aforesaid reasons, judgement
and order dated 18.4.2014 is hereby set
aside. The writ petition is restored to its
original number. Let the same be decided
in
light
of
the
observation
made
hereinabove .

With the aforesaid observations,
the appeal is allowed."

For all the aforesaid reasons,
judgement and order dated 18.4.2014 is
hereby set aside. The writ petition is
2056 INDIAN LAW REPORTS ALLAHABAD SERIES
restored to its original number. Let the
same
be
decided
in
light
of
the
observation made hereinabove .

With the aforesaid observations,
the appeal is allowed."

4. In this background, this writ
petition is now being heard. On the basis
of order dated 28.4.2017, passed by a
Division Bench, following are the issues
for consideration of the Court :-

(a) Whether strict compliance of
procedure prescribed in Section 19 of the
'Group D' Employees Services (U.P.)
Rules, 1985 (hereinafter referred as 'the
Rules of 1985') such as valid constitution
of the Selection Committee, proper
publication of advertisement, invitation
for calling names from employment
exchange
etc.
for
appointment
of
petitioners on Class IV were followed or
not ?

(b) What is the effect of ban
imposed by State of U.P. on Class IV
appointment under Government Order
dated 3.11.1997 ?

5. It has not been disputed by
learned counsel appearing on behalf of
rival parties that appointment of Class IV
employees in respondent college are
governed by
'Group
D' Employees
Services (U.P.) Rules, 1985 (hereinafter
referred as 'Rules of 1985'). For the
purpose of proper adjudication of present
writ petition, it is essential to quote Rule
19 of the Rules of 1985, which prescribed
'Procedure for Selection' :-

"19. Procedure for Selection.-
(1)
The
appointing
authority
shall
determine the number of vacancies to be
filled during the course of the year as also
the number of the vacancies to be
reserved for the candidates belonging to
the Scheduled Castes, Scheduled Tribes
and other categories. The vacancies shall
be notified to the Employment Exchange.
The appointing authority may also invite
application directly from the persons who
have their names registered in the
Employment Exchange. For this purpose,
the appointing authority shall issue an
advertisement in a local daily newspaper
besides pasting the notice for the same on
the notice board. All such applications
shall be placed before the Selection
Committee.

(2) When the names of the
General
candidates
and
Reserve
Candidates (for whom vacancies are
required to be reserved under the orders
of the Government) have been received by
the Selection Committee it shall inter view
and select the candidate for the various
posts.

(3) In making selection the
Selection Committee shall give weightage
to the retrenched employees awarding
marks in the following manner:

(i) For the first complete year: 5
marks

(ii) For the next and every
completed year of service: 5 marks

Provided that the maximum
marks awarded to a retrenched employee
under this sub-rule shall not exceed : 15
marks

(4) The number of the candidates to
be selected will be larger (but not larger by
more than 25 per cent ) than the number of
vacancies for which the selection has been
made. The names in the select list shall be
arranged according to the marks awarded at
the interview."

6. The procedure prescribed in Rule
19 of the Rules of 1985 could be
summarized as follows :-
2 All. Mahesh Chand & Anr. Vs State of U.P. & Ors.
2057

(i) Determination of vacancies
by the appointment authority and also
number of vacancies to be reserved for
the candidates belonging to the Schedule
Caste and Schedule Tribes.

(ii) Determined vacancies shall
be notified to the Employment Exchange.

(iii) Appointing Authority may
also invite applications directly from the
persons who are registered in the
Employment Exchange.

(iv) Appointing Authority shall
issue an advertisement in a local daily
newspaper and also paste notice of the
same on the notice board.

(v) All the applications received
shall
be
placed
before
Selection
Committee.

(vi) Selection Committee shall
take interview and select the candidates
and prepare select list according to marks
awarded in the interview for making
selection. The Selection Committee shall
give
weightage
to
the
retrenched
employees
by
awarding
marks
as
prescribed in Rule 19(3).

7.

Constitution
of
Selection
Committee is prescribed in Rule 16 of the
Rules
of
1985,
which
is
quoted
hereinafter :-

"16. Constitution of Selection
Committee.-
For
the
purpose
of
recruitment to any post, there shall be
constituted a Selection Committee as
follows:

1.Appointing Authority;

2.An
officer
belonging
to
Scheduled
Castes/Scheduled
Tribes,
nominated by the District Magistrate if
the appointing authority does not belong
to Scheduled Castes/Scheduled Tribes. If
the appointing authority belongs to
Scheduled Castes/Scheduled Tribes, an
officer other than belonging to Scheduled
Castes/Scheduled
Tribes,
Minority
Community and Backward Class to be
nominated by the District Magistrate;

3.Two officers nominated by the
appointing authority, one or whom shall
be an officer belonging to Minority
Community and the other to Backward
Class. If such suitable officers are not
available
in
his
department
or
organisation, such officers shall on the
request of the appointing authority, be
nominated by the District Magistrate and
on his failure to do so, by reason of nonavailability of suitable officer, such
officers shall be nominated by the
Divisional Commissioner."

8.

Constitution
of
Selection
Committee could be summarized as
follows :-

a. Appointing Authority.

b. An officer belonging to
S.C./S.T. nominated by Magistrate.

c. Two Officers nominated by
Appointing Authority, one from Minority
Community and other from Backward
Class
from
the
department
in
organisation.

d.
Some
provisions
are
mentioned,
in
case,
members
as
mentioned above are not available.

9. From the record available,
following procedure was adopted for the
selection of the petitioners :-

(i) Advertisement for the post of
Class IV, (one for OBC and other for
B.C.) was published on 27.3.2001 and
25.3.2001 in a newspaper namely 'Danik
Sach Kya Hai' and 'Danik Jantantra'
respectively, which is on record of the
writ petition.
2058 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Vacancies were not notified
to the Employment Exchange, however,
selected candidates (petitioners) were
registered at Employment Exchange.

(iii) No record or detail of
Constitution of Selection Committee is
available on record.

(iv) 7 candidates appeared for
interview.

(v) A letter dated 8.4.2001 was
issued under the signature of Principal,
Government Girls' Inter College, Mainpuri,
Principal Government Girls' Inter College,
Karhet Mainupri and Assistant Basic Shiksha
Adhikari, Mainpuri (member of Selection
Committee) declaring the petitioners as
selected as Class IV employee in pursuance of
interview.

(vi) Appointment letters were
issued to the petitioners and the same has
been placed on record to show the
numbers
given
by
the
Selection
Committee to the candidates.

10. From the above, it is clear that
procedure adopted was defective so much as
no record is submitted to show how the
Selection Committee was formed as per Rule
16 of the Rule of 1985. Only document to
show composition of Selection Committee is
a letter communicating about selection of
petitioners which is signed by three persons,
however, there is no nomination on behalf of
District Magistrate regarding persons from
S.C./S.T., Minority and B.C. Commonly as
prescribed in Rule 16 of the Rules of 1985.
Vacancies
were
not
notified
from
Employment
Exchange,
therefore,
the
provisions of the Rules of 1985 were not
strictly complied with for the selection process
under taken for appointment of petitioners.

11. Next issue which require
consideration is regarding ban imposed on
recruitment by Government Order dated
3.11.1997, the said G.O. had imposed ban
on
fresh
recruitment,
however,
by
subsequent G.O. dated 6.9.2000, said ban
was removed sofar as appointment on the
posts which are reserved for Schedule
Castes/Schedule Tribes, specifically in
Class III and Class IV. Therefore, the
recruitment of petitioners was not barred
according to G.O. dated 3.11.1997 as
petitioners were appointed in the year
2001
when
subsequent
G.O.
dated
6.9.2000 has lifted the ban.

12. As discussed above, the
procedure undertaken for the recruitment
of petitioners was not correct and there
was no strict compliance of provisions of
the Rules of 1985. The entire impugned
selection is irregular, and therefore, there
is no illegality in the impugned order
whereby financial approval was not
granted. Accordingly, the writ petition
lacks merit, hence dismissed.
----------

(2019)10ILR A 2058

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2019

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.

Writ A No. 68295 of 2009

Shri Satish Chandra & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri A.B. Singh, Sri Anand Prakash Pandey,
Sri Manish Singh.

Counsel for the Respondents:
C.S.C.