# Mashkoor Hasan v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 1276
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-02
- **Case number:** Special Appeal Defective No. 718 of 2021
- **Bench:** Rajesh Bindal, C.J. Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mashkoor-hasan-v-state-of-u-p-ors-48483
- **Pages:** 5

## Headnote

A. Service Law - Appointment/Selection -
Uttar
Pradesh
Secondary
Education
Services Selection Board Rules, 1998 -
Rule 13(4) - After a candidate from the
select list joins service, the selection
process comes to an end and the waiting
list cannot be acted upon as the post
stands filled up. (Para 10)

B. Jurisdiction - The Joint Director of
Education, even after a direction was
issued by this Court for consideration of
the representation filed by the appellant,
did not have the jurisdiction to direct for
appointment of the appellant as the same
is contrary to law. (Para 8)

In case the appointed candidate had left
service thereafter, no person from the
waiting
list
could
be
offered
appointment and that too about 18
years after the selection process was
carried out. The order passed by the Joint
Director of Education being totally illegal, the
same has rightly been stayed by learned
Single Judge. (Para 8)
The candidate at Sr. No. 1 in the merit list
namely, Dr. Dinesh Vashishth was issued
appointment letter on July 16, 2008 and he
joined as Principal of the College on July 19,

## Text

1276 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022)05ILR A1276
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 02.02.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Special Appeal Defective No. 718 of 2021

Mashkoor Hasan ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri R.K. Ojha (Senior Advocate), Sri S.B.
Singh

Counsel for the Respondents:
Sri A.K. Roy (Addl. C.S.C.), Sri Arvind
Kumar Pandey

A. Service Law - Appointment/Selection -
Uttar
Pradesh
Secondary
Education
Services Selection Board Rules, 1998 -
Rule 13(4) - After a candidate from the
select list joins service, the selection
process comes to an end and the waiting
list cannot be acted upon as the post
stands filled up. (Para 10)

B. Jurisdiction - The Joint Director of
Education, even after a direction was
issued by this Court for consideration of
the representation filed by the appellant,
did not have the jurisdiction to direct for
appointment of the appellant as the same
is contrary to law. (Para 8)

In case the appointed candidate had left
service thereafter, no person from the
waiting
list
could
be
offered
appointment and that too about 18
years after the selection process was
carried out. The order passed by the Joint
Director of Education being totally illegal, the
same has rightly been stayed by learned
Single Judge. (Para 8)
The candidate at Sr. No. 1 in the merit list
namely, Dr. Dinesh Vashishth was issued
appointment letter on July 16, 2008 and he
joined as Principal of the College on July 19,
2008. However, in the year 2011, he left the
job and had gone back to his parent
institution, where he was working prior to his
appointment and joining as Principal of the
College. He retired on July 31, 2020 after
attaining the age of superannuation. (Para 9)

In an appeal filed by Dr. Dinesh Vashishth,
against the order dated 03.09.2008, the order
passed by learned Single Judge was set aside
on 25.09.2008 with a request to the learned
Single Judge to decide the writ petition
expeditiously.
It
was
observed
in
the
aforesaid order that the life of the select list
would continue till the decision of the writ
petition. (Para 13)

There is no quarrel with the proposition
of law that with the joining of a
candidate in the select list, the process
of selection is complete and the waiting
list cannot be acted upon. No rules were
cited to show about the validity of a select
list. Only reference was made to the
observation made by the Division Bench
of this Court in Special Appeal No. 1282
of 2008, wherein it was recorded that the
select list would remain valid till the decision
of the WP filed by the Sudhir Kumar Gupta,
who was at Sr. No. 2 in the merit list
questioning the appointment of Dr. Dinesh
Vashishth who was at Sr. No. 1 in the merit
list. The present appellant was nowhere in
the picture. The aforesaid order could
have relevance to the claim of Sudhir
Kumar
Gupta,
for
appointment
as
Principal
and
not
for
any
other
candidate. (Para 7, 14)

Even otherwise, in the case in hand, the select
list was notified on September 29, 2003 and
appointment on the post was sought and
offered to the appellant in the year 2020-21.
The claim made by the appellant to the post, in
the aforesaid
factual matrix
by filing a
representation and then a WP in the year 2020,
was otherwise also highly belated. The post in
question was vacated by Dr. Dinesh Vashishth in
the year 2011. (Para 15)
5 All. Mashkoor Hasan Vs. State of U.P. & Ors.
1277
Special appeal dismissed. (E-4)

Precedent followed:

1. Har Nath Singh Vs St. of U.P. & ors., Special
Appeal No. 1115 of 2019, dated 01.11.2019
(Para 2)

2. Chandresh Nath Singh Baghel Vs Bhagwan
Singh Sisodia & ors., 2008 (1) ESC 428 (All.)
(Para 8)

Precedent cited:

1. Ashutosh Shrotriya & ors. Vs Vice -
Chancellor, Dr. Ambedkar University & ors.,
2015 (8) ADJ 248 (Para 6)

Earlier litigation in the present Special
Appeal:

1. Sudhir Kumar Gupta Vs St. of U.P. & ors.,
Writ-A No. 45747 of 2008 (Para 4)

2. Dr. Dinesh Vashishth Vs St. of U.P. & ors.,
Special Appeal No. 1282 of 2008 (Para 4)

Present
special
appeal
assails
the
judgment and order dated 11.08.2021,
passed
by
Hon'ble
Justice
Yashwant
Verma, J. in Writ-A No. 9776 of 2021.

(Delivered by Hon'ble Rajesh Bindal, C. J.)

1. The present intra-court appeal has
been filed impugning the interim order
dated August 11, 2021 passed by learned
Single Judge of this Court in a writ
petition filed by respondent No.7.

2. Mr. Arvind Kumar Pandey,
learned counsel appearing for respondent
No.7 raised a preliminary objection
regarding maintainability of the present
appeal against the interim order passed by
learned Single Judge. In support of his
arguments, he relied upon a Division
Bench judgment of this Court in Special
Appeal No. 1115 of 2019 (Har Nath
Singh Vs. State of U.P. and others),
dated November 1, 2019.

3. Mr. Radha Kant Ojha, learned
Senior
Counsel
appearing
for
the
appellant submitted that an advertisement
was issued for selection and appointment
to the post of Principal in various
institutions including Rani Avanti Bai
Inter College, Marhara, District Etah
(hereinafter referred to as the ''College')
in the year 2002. Select list was notified
on September 29, 2003. So far as the
select list of the College is concerned, Dr.
Dinesh Vashishth was at Sr. No.1
whereas Sudhir Kumar Gupta was at Sr.
No. 2 and the appellant was at Sr. No. 3
in the merit list.

4. A writ petition was filed by
Sudhir Kumar Gupta, the candidate at Sr.
No.2 in the merit list, with reference to
the said selection and appointment,
bearing Writ-A No. 45747 of 2008
(Sudhir Kumar Gupta Vs. State of U.P.
and others). In the said writ petition,
vide order dated September 3, 2008,
operation of the orders impugned therein
dated July 31, 2008 and August 12, 2008,
was
stayed.
The
said
order
was
challenged by Dr. Dinesh Vashishth by
filing Special Appeal No. 1282 of 2008
(Dr. Dinesh Vashishth Vs. State of U.P.
and others), which was allowed on
September 25, 2008. While setting aside
the order dated September 3, 2008 passed
by learned Single Judge, a request was
made to the learned Single Judge for
deciding the writ petition expeditiously.
The aforesaid writ petition is stated to be
still pending.

5. The learned Senior Counsel further
submitted that Dr. Dinesh Vashishth, who
was at Sr. No. 1 in the merit list has since
1278 INDIAN LAW REPORTS ALLAHABAD SERIES
retired
after
attaining
the
age
of
superannuation, he is no more a candidate.
The candidate at Sr. No. 2 in the merit list
namely, Sudhir Kumar Gupta has also left
service and hence no more interested to be
appointed as Principal of the College.
Hence, the appellant was the only candidate
available from the select list for being
offered appointment as Principal of the
College. As his claim was not being
considered, he filed Writ-A No. 8770 of
2020 before this Court. The said writ
petition was disposed of on November 11,
2020 with a direction to the Joint Director
of Education, Aligarh Region, Aligarh to
consider and decide the representation filed
by the appellant. Pursuant to the aforesaid
order, the claim of the appellant was
considered and vide order dated June 26,
2021,
a
direction
was
issued
for
appointment of the appellant as Principal of
the College. As far as competence of the
Joint Director of Education to direct for
appointment of the appellant as Principal is
concerned, reference was made to Rule
13(4) of the Uttar Pradesh Secondary
Education Services Selection Board Rules,
1998 (hereinafter referred to as ''the Rules').
It was further argued that in the Rules,
there is no time limit prescribed for the life
of a select list. However, in the case in
hand, the same is still alive, for the reason
that the Division Bench of this Court while
disposing of Special Appeal No. 1282 of
2008 filed by Dr. Dinesh Vashishth, had
directed that the life of the select list would
continue till the decision of the writ petition
by the learned Single Judge. As the writ
petition is still pending, the select list is
valid. In pursuance of the aforesaid order
passed by the Joint Director of Education,
an appointment letter was issued in favour
of the appellant on July 26, 2021. He joined
service and his signatures were also
attested. With the passing of the impugned
interim order, prejudice has been caused to
the appellant as he has been deprived of to
serve as Principal of the College, though
validly selected.

6. In response to the arguments raised
by learned counsel for respondent No.7
regarding maintainability of the present
appeal while referring to a Full Bench
judgment of this Court in Ashutosh
Shrotriya
and
others
Vs.
ViceChancellor,
Dr.
B.R.
Ambedkar
University and others, 2015 (8) ADJ 248,
it was submitted by the learned Senior
Counsel that the interim order in the case in
hand being in the nature of final order,
intra-court appeal is maintainable. Prayer
for setting aside the aforesaid order has also
been made so as to enable the appellant to
continue to serve as Principal of the
College.

7. In response, learned counsel for
respondent No.7/writ petitioner submitted
that, undisputedly, the select list, on the
basis of which the appellant is seeking
appointment, was notified on September
29, 2003. The appellant was at Sr. No. 3 in
the merit list. He was never a party in any
litigation pending before the Court as it was
a lis between the candidates at Sr. Nos. 1
and 2, which is still pending in this Court.
Though the litigation was pending, still,
undisputedly, the candidate at Sr. No. 1 in
the merit list namely Dr. Dinesh Vashishth
was issued appointment letter on July 16,
2008 and he had even submitted his joining
on July 19, 2008. As a consequence, the
post for which the selection was carried
out, stood filled up and there was no
question of operation of any waiting list
even if the select list can be said to be still
alive, though the same had outlived its life,
as far as the appellant is concerned. The
observation made by the Division Bench of
5 All. Mashkoor Hasan Vs. State of U.P. & Ors.
1279
this Court while deciding Special Appeal
No. 1282 of 2008 was only with reference
to a litigation between the candidates at Sr.
Nos. 1 and 2 in the merit list, it was not an
order in rem rather in personam.

8. The Joint Director of Education,
even after a direction was issued by this
Court
for
consideration
of
the
representation filed by the appellant, did
not have the jurisdiction to direct for
appointment of the appellant as the same is
contrary to law laid down by this Court in
Chandresh Nath Singh Baghel Vs.
Bhagwan Singh Sisodia and others, 2008
(1) ESC 428 (All), as the post in question
stood already filled up with reference to the
advertisement issued. In case the appointed
candidate had left service thereafter, no
person from the waiting list could be
offered appointment and that too about 18
years after the selection process was carried
out. The order passed by the Joint Director
of Education being totally illegal, the same
has rightly been stayed by learned Single
Judge.

9. Learned counsel for the State
submitted that the candidate at Sr. No. 1 in
the merit list namely, Dr. Dinesh Vashishth
was issued appointment letter on July 16,
2008 and he joined as Principal of the
College on July 19, 2008. However, in the
year 2011, he left the job and had gone
back to his parent institution, where he was
working prior to his appointment and
joining as Principal of the College. He
retired on July 31, 2020 after attaining the
age of superannuation.

10. Learned counsel for the appellant
and the State do not dispute the proposition
of law that after a candidate from the select
list joins service, the selection process
comes to an end and the waiting list cannot
be acted upon as the post stands filled up.

11. Heard learned counsel for the
parties
and
perused
the
documents
available on record.

12. Certain basic facts, which are not
in dispute, are that an advertisement was
issued for selection and appointment on the
post of Principal of the College in the year
2002. The select list was notified on
September 29, 2003 in the following order
of merit:

1. Dr. Dinesh Vashishth

2. Sudhir Kumar Gupta

3. Mashkoor Hasan

13. As is evident from the select list,
the appellant was at Sr. No. 3 in the merit
list. From the order dated September 3,
2008 passed by learned Single Judge in
Writ-A No. 45747 of 2008 filed by Sudhir
Kumar Gupta, the candidate at Sr. No.2 in
the merit list, it is evident that there was
some litigation pending in the Court with
reference to the selection in question.
Finally, it was upheld by Hon'ble Supreme
Court in the year 2008. It was a dispute
between the candidates at Sr. Nos. 1 and 2
in the merit list namely, Dr. Dinesh
Vashishth and Sudhir Kumar Gupta. Vide
order dated September 3, 2008, the learned
Single Judge of this Court had stayed
operation of the orders impugned therein,
dated July 31, 2008 and August 12, 2008.
In an appeal filed against the aforesaid
order by Dr. Dinesh Vashishth, the
aforesaid order passed by learned Single
Judge was set aside on September 25, 2008
with a request to the learned Single Judge
to decide the writ petition expeditiously. It
was observed in the aforesaid order that the
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
life of the select list would continue till the
decision of the writ petition.

14. Further, the undisputed facts
which
emerge
from
the
documents
available on record are that in pursuance of
the selection process, the candidate at Sr.
No. 1 in the merit list namely, Dr. Dinesh
Vashishth was issued appointment letter on
July 16, 2008. In pursuance thereto, he
submitted his joining report and was
permitted to join as Principal of the College
on July 19, 2008. He continued to work as
such till the year 2011, as submitted by
learned counsel for the State. There is no
quarrel with the proposition of law that
with the joining of a candidate in the select
list, the process of selection is complete
and the waiting list cannot be acted upon.
Even if, for the time being, we do not opine
on the issue regarding life of a select list
herein, no rules were cited to show about
the validity of a select list. Only reference
was made to the observation made by the
Division Bench of this Court in Special
Appeal No. 1282 of 2008, wherein it was
recorded that the select list would remain
valid till the decision of the writ petition
filed by the Sudhir Kumar Gupta, who was
at Sr. No.2 in the merit list questioning the
appointment of Dr. Dinesh Vashishth who
was at Sr. No. 1 in the merit list. The
present appellant was nowhere in the
picture. The aforesaid order could have
relevance to the claim of Sudhir Kumar
Gupta, for appointment as Principal and not
for any other candidate.

15. Even otherwise, in the case in
hand, the select list was notified on
September 29, 2003 and appointment on
the post was sought and offered to the
appellant in the year 2020-21. The claim
made by the appellant to the post, in the
aforesaid factual matrix by filing a
representation and then a writ petition in
the year 2020, was otherwise also highly
belated. The post in question was vacated
by Dr. Dinesh Vashishth in the year 2011.

16. For the reasons mentioned above,
we do not find any reason to interfere in the
present appeal. The same is, accordingly,
dismissed.
----------
(2022)05ILR A1280
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.04.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Criminal Misc. Bail Application No. 12419 of
2021

Ram Prakash ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Ashish Kumar Rastogi, Anita Singh

Counsel for the Opposite Party:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 45A- Polygraph Test- admissibility
of- Section 141- Leading Questions- The
perusal of polygraph test reveals that the
investigating officer has asked a pin-point
question-
Instead
of
asking
leading
question
from
the
eye-witness
the
prosecution should have asked as to who
were those persons who have attacked on
him and victim. However, even such
question could not have been asked while
conducting the polygraph test inasmuch
as such test has been disapproved by the
Hon'ble Apex Court in re: Selvi and others
(supra)- When such eye witness and the
informant who is wife of deceased had not
alleged anything against the present
applicant while recording their statement