# Mudita Bajpai v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 1175
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-04
- **Case number:** Writ-A No. 1797 of 2014
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mudita-bajpai-v-state-of-u-p-ors-50503
- **Pages:** 19

## Headnote

C.S.C., Ashok Shukla

The petitioner, a dependent of freedom fighter
Late Laxmi Shankar Bajpai, applied for Lecturer
posts per the advertisement dated 07.02.2014,
which did not mention age relaxation for
dependents of freedom fighters, unlike prior
advertisements (2013).Government orders (e.g.,
27.09.1972) and the 1993 Act provide for age
relaxation and reservation for dependents of
freedom fighters. The court noted that government
orders (e.g., 27.09.1972) and the 1993 Act
mandate age relaxation for dependents of freedom
fighters. The omission of this relaxation in the 2014
advertisement, unlike prior advertisements, was
deemed arbitrary and violative of Articles 14 and 16.
The court upheld the petitioner's right to be
considered under the dependents of freedom
fighters quota, rectifying the respondents' error. The
court directed the respondents to consider the
petitioner's candidature under the dependents of
freedom fighters quota against one of the vacant
posts.

The writ petition was allowed.

Precedents cited:

## Text

_Characters 0–39,967 of 65,463. This is a partial read: ask again with offset=39967 for what follows._

7 All. Mudita Bajpai Vs. State of U.P. & Ors.
1175
treated fairly in proceedings which may
culminate in imposition of punishment
including dismissal/ removal from service.

In a case where the proceedings
are completed and the order of dismissal
successfully challenged, it shall be open to
the Management to ask for the permission
of the authority again after paying or
offering to pay to the worman concerned
within a resaonable tim to be fixed by the
authority
concerned
the
arrears
of
subsistence allowance, but in the instant
case nothing has been done for payment of
subsistence allowance after expiry of one
years. The judgments relied upon by
learned counsel for the respondent-Bank
are not squarely covered to the facts and
circumstances
of
the
case
as
the
departmental enquiry has been conducted
not in accordance Circular dated 23.8.1984
issued by the Central Office of the Bank to
all its Chief Managers, which is based on
directions issued by the Government of
India
through
the
Central
Vigilance
Commission vide letter dated 3.7.1984 and
in violation of principles of natural justice.

40. In view of the above, this writ
petition is allowed. Orders dated 26.5.1997
and 23.12.1997 passed by opposite party
nos.2 and 1 respectively are quashed. The
respondents are directed to reinstate the
petitioner in service and pay him all the
wages and allowance due to him.
----------
(2023) 7 ILRA 1175
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.07.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 1797 of 2014
Mudita Bajpai ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ishita
Yadu,
Gaurav
Mehrotra,
Ravi
Shankar Tiwari

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

The petitioner, a dependent of freedom fighter
Late Laxmi Shankar Bajpai, applied for Lecturer
posts per the advertisement dated 07.02.2014,
which did not mention age relaxation for
dependents of freedom fighters, unlike prior
advertisements (2013).Government orders (e.g.,
27.09.1972) and the 1993 Act provide for age
relaxation and reservation for dependents of
freedom fighters. The court noted that government
orders (e.g., 27.09.1972) and the 1993 Act
mandate age relaxation for dependents of freedom
fighters. The omission of this relaxation in the 2014
advertisement, unlike prior advertisements, was
deemed arbitrary and violative of Articles 14 and 16.
The court upheld the petitioner's right to be
considered under the dependents of freedom
fighters quota, rectifying the respondents' error. The
court directed the respondents to consider the
petitioner's candidature under the dependents of
freedom fighters quota against one of the vacant
posts.

The writ petition was allowed.

Precedents cited:

1. Ramesh Chandra Sankla Vs Vikram Cement
[(2008) 14 SCC 58

2. Shangrila Food Products Vs LIC [(1996) 5
SCC 54]

3. Shaheen Parveen Vs St. of U.P. [(2015) SCC
OnLine All 9489]

4. St. of U.P. Vs Dr. Dina Nath Shukla [(1997) 9
SCC 662]

5. Dr. Suresh Chandra Verma Vs Nagpur
University [(1990) 4 SCC 55]
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Davesh Nagalya Vs Pradeep Kumar [(2021) 9
SCC 796] Vs Motor & General Traders [(1975) 1
SCC 770]

7. Rajesh Kumar Daria Vs Rajasthan Public
Service Commission [(2007) 8 SCC 785]
reservations.

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Gaurav Mehrotra,
learned counsel for the petitioner and
learned Standing Counsel for the Staterespondent and Sri R.K. Upadhyay, learned
counsel for the respondent-Commission.

2. By means of the present writ
petition, the petitioner has prayed for the
following reliefs :-

"i) to issue a writ, order or
direction in the nature of Mandamus
commanding
the
opposite
parties
to
provide the relaxation in maximum age and
consider the application form/ candidature
of the petitioner for the post for which the
petitioner has applied in pursuance of the
advertisement dated 07.02.2014 (Annexure
No.3 to the writ petition).

1)(a) to issue a writ, order or
direction in the nature of certiorari
quashing the Government orders dated
14.11.1985, 03.09.1992 and 31.10.2013.

ii) to pass any other suitable
order or direction which is deemed just and
proper in the circumstances of the case
may also be passed.

iii) to allow the writ petition with
costs.

iv) Issue a writ order or direction
in the nature of certiorari, quashing the
final result declared by the Respondents on
30.10.2018 (Annexure No. 11) to the extent
that the candidate placed at serial no. 47
has been given benefit of reservation under
the
Dependents
of
Freedom
fighters
category;

v) Issue a writ, order or direction
in the nature of mandamus commanding
the respondents to consider the candidature
of the petitioner against the vacancy
reserved
for
category
of
candidates
belonging
to
dependents
of
freedom
fighters in the selections at hand;"

3. Brief fact of the case is that the
State Government issued a government
order dated 27.9.1972, providing age
relaxation to the dependent of freedom
fighters. In addition to the aforesaid
government order, the State Government
issued government orders dated 1.11.1947,
31.1.1957.
14.8.1972,
19.2.1977,
14.11.1985, 3.9.1992 and 31.10.2013 on
the issue involved in the present writ
petition.

Prior to government order dated
14.8.1972, the exemption/ relaxation in age
limit was four years and vide government
order dated 14.8.1972, the same was of five
years and the government orders are
beneficial in nature and by the said
government orders, relaxation was given to
the freedom fighters, the dependent/ family
members of freedom fighters, as defined
from time to time and in the said
government orders, no time limit is
prescribed in relation to the benefit
provided.

4. In the year 1993, the State
Government promulgated the U.P. Public
Services
(Reservation
for
Physically
Handicapped, Dependents of Freedom
Fighters and Ex-Servicemen) Act, 1993 (in
short, 'the Act, 1993) and the Act was lastly
amended in the year 2009 and as per the
Act, the petitioner is dependent of freedom
7 All. Mudita Bajpai Vs. State of U.P. & Ors.
1177
fighter namely, Late Laxmi Shankar
Bajpai, the grandfather of the petitioner.

5. The petitioner was appointed as
Assistant
Teacher
in
Basic
Shiksha
Parishad in the year 1999. The respondent
No.2 published an advertisement for
appointment/ recruitment dated 7.2.2014 on
the post of Lecturers in the State Council
for Education Research and Training
(S.C.E.R.T.). In the said advertisement, it
has not been mentioned that relaxation in
age will be given to the dependents of
freedom fighters. The petitioner has applied
in
pursuance
to
the
aforesaid
advertisement.

6. The respondent No.2 had also
issued
advertisement
No.A-1/E-1/2-13
dated
23.3.2013,
A-2/E-1/2013
dated
23.5.2013 and advertisement No.A-3/E1/2013 dated 14.6.2013 and in the said
notifications, age relaxation of five years is
provided to the dependents of freedom
fighters.

7. During the pendency of the writ
petition, the petitioner had been permitted
to appear in the selection process and
having been declared successful in the
written examination, she was called for
interview which was held on 12.10.2018
only for the post of Lecturer in Social
Work.

Final result of the selection has
been declared, subject to the final outcome
of the instant writ petition. However, the
name of the petitioner did not find place in
the final result declared for appointments
made on the post of Lecturer in Social
Work.

8. During the pendency of the instant
writ petition, the petitioner has been
provided
certain
information
by
the
respondent No.3 under the Right to
Information Act, pertaining to the category
wise cut-off marks obtained by the selected
candidates in the selection in question as
well as copy of the final result.

9. Submission of learned counsel for
the petitioner is that from perusal of the
information provided by the respondent
No.3, it is evident that the respondents have
adopted a pick and choose policy while
selecting candidates in the selections at
hand which has not been made in fair and
transparent manner, thereby violating the
fundamental right enshrined under Articles
14 and 16 of the Constitution of India.

10. It is submitted that the petitioner
is the dependent of freedom fighter as
defined in Section 2(b) (ii) of the Act, 1993
and is entitled to age relaxation in the light
of the government order dated 27.9.1972 in
the process of recruitment initiated by the
respondent No.2 for the post of Lecturers
under
the
U.P.
Teachers
Education
(Lecturers Cadre) Service Rules, 2010 and
in the advertisement dated 7.2.2014, the
relaxation of age has not been mentioned to
the dependents of freedom fighters.

11. He submits that for the purposes
of carrying out the functions of S.C.E.R.T.
including recruitment on the post of
Lecturers, guidelines were framed by the
Central Government and in the year 2010,
on the issue of recruitment of Lecturer, the
State Government framed the Rules of
2010 under the proviso Article 309 of the
Constitution of India.

As per Rule 2 of the Rules of
2010, the Lecturers cadre service is
Subordinate Non Gazette Service i.e.
Group-C
post.
As
per
Rule
3(d),
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
Commission means U.P. Public Services
Commission. Rule 5 of the Rules of 2010
says that recruitment to the various
categories of post in the service, as defined
under rule 2(j), shall be made by direct
recruitment through the Commission. Rule
6 of the Rules of 2010 relates to giving
reservation to certain class such as
scheduled caste, scheduled tribe including
the persons covered under the Act of 1993.
Rule 10, as amended vide Notification
dated 22.08.2013, relates to age of a
candidate
for
direct
recruitment
and
according to the same, a candidate for
direct recruitment must have attained the
age of 21 years and must not have attained
the age of more than 40 years on the first
day of July of the calendar year in which
vacancies are advertised and proviso of
Rule 10 says that the upper age limit in the
case of candidates belonging to Scheduled
Castes, Scheduled Tribes and such other
categories as may be notified by the
Government from time to time shall be
greater by such number of years as may be
specified. Rule 24 of the Rules of 2010
gives power of relaxation to the State
Government and rule 25 specifically says
that
nothing
in
these
rules
affect
reservations and other concessions required
to be provided for the candidates belonging
to Scheduled Caste, Scheduled Tribe and
other special categories of persons in
accordance
with
the
orders
of
the
Government issued from time to time in
this regard.

12. He submits that the government
order dated 27.09.1972 relates to relaxation
of upper age limit and reservation in
government services to the dependants of
freedom fighters and as per the same five
years relaxation in upper age limit in the
recruitment process has to be given to the
dependants of freedom fighters and in the
year 1993 the Act of 1993 was promulgated
to provide reservation to certain classes
mentioned in the Act of 1993.

13. It is further submitted that the
petitioner has a good academic record and
she was appointed as Assistant Teacher in
Basic Shiksha Parishad on 11.12.1999 and
at that point of time the petitioner was
M.Sc. (Botany) and B.Ed. and thereafter in
the year 2002, she obtained the certificate
of computer and in the year 2010, she
passed M.A. (Education) and got 68%
marks and thereafter, in the year 2012 she
passed M.A. (Social Work) with 72.4%. It
is also pointed out that the petitioner passed
High School with 60%, Intermediate with
53%, B.Sc. with 59%, M.Sc. with 60% and
B.Ed. with 58% in the year 1986, 1988,
1991, 1993 and 1997 respectively.

14. It is also submitted that the
present is presently holding the post of
Assistant Teacher in Junior High School, as
she has been promoted from the post of
Assistant Teacher (Primary School) and has
also performed the duties in the District
Institute
of
Education
and
Training
(D.I.E.T.), District Raebareli as Teacher
Educator.
He
further
submitted
that
selection/recruitment on the posts of
Lecturers
under
the
Rule
of
2010,
advertisement
No.
5/2013-2014
dated
07.02.2014 was issued by opposite party
No.2 and as per the said advertisement the
last date of submitting the application form
was
11.03.2014
and
submitting
the
documents was 21.03.2014 and as per the
said advertisement, the minimum age for
the post advertised is 21 years and
maximum is 40 years and the said
advertisement in regard to the relaxation of
age only says "relaxation on age, as per
rules" and as per condition No.4, the age
aforesaid
has
to
be
calculated
on
7 All. Mudita Bajpai Vs. State of U.P. & Ors.
1179
01.07.2014.
The
said
condition
also
prescribed relaxation in to certain classes of
person. In the said age condition there is no
mention about providing relaxation of age
to the dependants of freedom fighters and
the said act of the opposite parties is
arbitrary and illegal and is unsustainable.

15. He further submitted that the
respondent
No.2
had
also
issued
advertisement
No.A-1/E-1/2013
dated
23.03.2013,
A-2/E-1/2013
dated
23.05.2013 and advertisement No.A-3/E1/2013 dated 14.06.2013, copies whereof
have been filed herewith as Annexure
No.5, 6 and 7 to the writ petition
respectively, and a bare perusal of the
condition No.14 (1), 12 and 14 (2)
respectively of the above mentioned
advertisements would show that the age
relaxation of 5 year is provided to the
dependents of freedom fighters but in the
present case the said benefit has not been
extended to the dependents of freedom
fighters including the petitioner and as per
Rules of 1993 as amended in 2009 vide
notification dated 20.08.2009, the petitioner
is dependent of freedom fighter namely
Late Laxmi Shankar Bajpai, the grandfather of the petitioner and as such the
petitioner has suffered irreparable loss and
injury. Copy of the certificate dated
26.12.1997 has been filed as Annexure
No.8 to the writ petition.

16. In pursuance of the advertisement
dated 07.02.2014 the petitioner has applied
for the post of Lecturer (Biology), Lecturer
(Education) and Lecturer (Social Work) for
which she is fully eligible and qualified.

The
advertisement
dated
07.02.2014 is silent on the issue of
providing the relaxation in maximum age
to the dependents of freedom fighters and it
is a possibility that the respondent No.2
will reject the application form of the
petitioner on the ground of maximum age
and due to the same, the petitioner has
approached this Hon'ble Court for a
direction to the opposite parties to provide
age relaxation to the petitioner.

It is next submitted that the
opposite parties are not extending the
benefit of age relaxation to the dependent
of freedom fighters in clear terms as would
appear from the advertisement dated
07.02.2014 and, thus, the action of the
opposite parties is arbitrary and illegal and
liable to be interfered by this Hon'ble
Court.

17. It is also argued that the opposite
parties are providing the age relaxation to
the dependents of freedom fighters, as
would appear from the advertisement dated
23.03.2013 and 14.06.2013 mentioned
hereinabove, but on the other hand are not
providing the same in the advertisement
dated 07.02.2014 and, thus, the action of
the respondents is contrary to the spirit of
Article 14 of the Constitution of India. It is
also pertinent to mention that in view of
Government Order dated 27.09.1972 and
aforesaid facts and circumstances, the
petitioner is entitled to relaxation in age of
5 years. The Act of 1993 and Government
Order dated 27.09.1972 are relevant and
are applicable to the case of the petitioner
and
the
opposite
parties
are
under
obligation to extend the benefits of the
same in reasonable and fair manner.

18. It is submitted by learned counsel
for the petitioner that from a perusal of the
final result, it is evident that out of the 70
total vacancies for the post of Lecturer
(Social Work), 35 seats have been allotted
for candidates belonging to unreserved
category, 15 seats for scheduled castes
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
category candidates, one seat for scheduled
tribes category candidate and 19 seats have
been allotted for candidates belonging to
other backward classes. In the horizontal
category of reservation, one seat has been
allotted
for
candidates
belonging
to
dependents of freedom fighters (related to
the instant matter), 3 seats for exservicemen, 14 seats for women candidates
and three seats have been allotted to
candidates belonging to disability quota.

19. During the pendency of the
present writ petition, the petitioner had
applied under the Right to Information Act
vide
letters
dated
02.02.2019
and
20.04.2019, seeking certain information
pertaining to the category wise cut off
marks obtained by the selected candidates
in the selection in question. In response
thereto, vide office memorandum dated
02.05.2019
issued
by
the
Public
Information officer of respondent No.2, the
petitioner has been provided the the
following category wise cut off marks:

Unreserved category- 56

Other Backward Classes- 50

Scheduled Castes- 45

Scheduled
Castes/Scheduled
Tribes- 45

Women- 53

Dependents
Of
Freedom
Fighters/O.B.C.- 52

Ex-servicemen- not available

Disability (locomotor)- 42

Disability (auditory)- 42

Disability
(blindness)-
not
available

Copy
of
the
said
office
memorandum dated 02.05.2019 has been
annexed herewith as Annexure No.12 to the
writ petition.

20. He submits that moreover vide
office memorandum dated 17.01.2019
issued by the Public Information Officer of
respondent No.3 whereby the petitioner
was provided a copy of the final result,
copy whereof is annexed as Annexure no.
11 to the writ petition, the petitioner has
also
been
provided
the
following
information:

"1. The petitioner has been
awarded 50 marks in the interview.

2. The cut-off marks of the last
selected candidate belonging to unreserved
category is 56 marks."

Copy of the office memorandum
dated 17.01.2019 has been annexed as
Annexure No.13 to the writ petition.

21. Learned counsel for the petitioner
submits that it is relevant to note that under
the category of candidates belonging to
dependents of freedom fighters, three
candidates had been invited for appearing
in the interview, namely Sri Shrayas
Yadav, Sri Rajnish Kumar and the
petitioner. To the best knowledge of the
petitioner, out of the aforesaid three
candidates, Sri Rajnish Kumar obtained
less than 50 marks, because of which he
was not selected in either category of OBC
or dependents of freedom fighter, to which
he belonged. The petitioner has obtained 50
marks and Sri Shrayas Yadav has obtained
52 marks, thus, Sri Shrayas Yadav
consequently got selected on the single post
which
was
reserved
for
candidates
belonging to category of dependents of
freedom fighters. Copy of the relevant
extract of the list of candidates who were
called for interview in the selection,
wherein name of Sri Rajnish Kumar finds
at serial No.14 has been annexed as
Annexure no. 14 to the writ petition.
7 All. Mudita Bajpai Vs. State of U.P. & Ors.
1181

22. It is further submitted that name
of Sri Shrayas Yadav finds mention at
serial No.47 of the final select list, wherein
it has been also clearly mentioned that Sri
Shrayas Yadav belongs to both categories
of other backward classes as well as
dependent of freedom fighters, however,
since the cut-off marks of the of the
candidates belonging to other backward
classes is 50 marks, whereas as per the
information provided to the petitioner
under the Right to Information Act, the cutoff marks of the candidates belonging to
the category of dependents of freedom
fighters is 52 marks, which appear to be the
marks obtained by Sri Shrayas Yadav, it is
evident that Sri Shrayas Yadav has been
selected on the single post reserved for
candidates
belonging
to
category
of
dependents of freedom fighters, even
though Sri Shrayas Yadav ought to have
been selected on one of the posts reserved
for candidates belonging to other backward
caste, since he obtained more marks than
the last selected candidate belonging to
other backward caste (i.e. more than 50
marks).

It is also pertinent to draw
attention
to
clause
13.6
of
the
advertisement dated 11.03.2014 on the
basis of which the selection at hand took
place. In clause 13.6 of the advertisement
dated 11.03.2014, it has been categorically
mentioned that those candidates who are
seeking reservation under two different
categories, shall be given and be eligible
for reservation under only one category,
being
that
category
which
is
more
beneficial for such candidate. Therefore,
Sri Shrayas Yadav ought to have been
selected under the category of other
backward caste and not on the single post
which
was
reserved
for
candidates
belonging to dependents of freedom
fighters, meaning thereby that the single
post reserved for candidates belonging to
category of dependents of freedom fighters
ought to have been filled by the petitioner,
who was next in line after Shri Shrayas
Yadav in order of merit.

23. He submitted that the impugned
action of the respondents in granting
benefit of double reservation to certain
candidates while depriving the petitioner of
benefit of reservation under the category of
dependents of freedom fighters does not
withstand the litmus test of reasonableness,
fairness and equality, which are the
necessary
ingredients
of
every
administrative action and are not only
illegal and arbitrary but also unsustainable
in the eyes of the law.

24. In support of his submission,
learned counsel for the petitioner placed
reliance upon the following judgments :-

(i) Ramesh Chandra Sankla &
Others Vs. Vikram Cement & Others
[(2008) 14 SCC 58]; paragraphs 97 and
98

(ii) Shangrila Food Products &
Another Vs. Life Insurance Corporation
of India & Another [(1996) 5 SCC 54];
paragraph 11

(iii)
Shaheen
Parveen
&
Another Vs. State of U.P. & Others
[(2015)
SCC
OnLine
All
9489];
paragraph 17

(iv) State of U.P. Vs. Dr. Dina
Nath Shukla & Another [(1997) 9 SCC
662]; paragraphs 11 and 13

(v) Dr. Suresh Chandra Verma
& Others Vs. The Chancellor, Nagpur
University & Others [(1990) 4 SCC 55];
paragraphs 10 and 11

(vi) Davesh Nagalya (Dead) &
Others Vs. Pradeep Kumar (Dead)
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
through Legal Representatives & Others
[(2021) 9 SCC 796]; paragraph 12

(vii)
Pasupuleti
Venkateshwarlu Vs. The Motor and
General Traders [(1975) 1 SCC 770];
paragraph 4

25. On the other hand, learned
counsel for the respondent-Commission
submits that the Commission had issued an
advertisement
No.5/2013-14
dated
7.2.2014 for the post of Lecturer in State
Council for Education Research and
Training. In pursuance of government order
No.724/dk-2013 dated 31.10.2023 in the
advertisement, no relaxation in the upper
age limit to the Dependents of Freedom
Fighters was provided. It is submitted that
the petitioner's claim of relaxation in the
upper age limit in the aforesaid category in
view of the government order No.7/2/72Niyukti-4 dated 27.9.1972 is misconceived
as the said government order is not
applicable
as
is
evident
from
the
government order No.724/dk-2013 dated
31.10.2023. However, the petitioner was
allowed relaxation in upper age limit on
account of being a government servant and
her online application was accepted and she
was allowed to participate in the selection
process.

26. He submits that the petitioner was
called for an interview for the post of
Lecturer, Social Work. The interview of the
petitioner was conducted on 12.10.2018.
The result for all 70 posts of Lecturer, Social
Work was declared on 30.10.2018 but the
petitioner could not succeed. Thereafter, the
petitioner has challenged the result by
making an amendment to the prayer clause of
the writ petition. The claim of the petitioner is
mainly based on the point that she belongs to
the category of dependents of freedom
fighters and instead of declaring her
successful against one vacancy reserved for
dependents of freedom fighters another
person namely Shreyas Yadav has wrongly
been selected against one vacancy reserved
for dependents of freedom fighters whereas
he was already selected against the vacancy
of OBC. Thus, she has been allowed the
reservation under two categories i.e. OBC
and dependents of freedom fighters category.

27. It is further submitted by learned
counsel for the respondent that Shreyas Yadav
is an OBC candidate and also belongs to
dependents of freedom fighters, got 52 marks,
therefore, he was selected under the OBC quota
(cut-off marks for OBC is 50). Since he also
belongs to the dependents of freedom fighters
category, therefore, he has been adjusted against
the quota of dependents of freedom fighters.
The horizontal reservations are made in
accordance with the provisions contained in the
Uttar Pradesh Public Service (Reservation for
Physically
Handicapped,
Dependents
of
Freedom Fighters and Ex-Servicemen) Act,
1993, which is in consonance with the law laid
down in respect of horizontal reservations in the
case of Indra Sawhney Vs. Union of India
[1992 Supp (3) SCC 217], paragraph 812,
which has further been reiterated in the case of
Anil Kumar Gupta Vs. State of U.P. &
Others [(1995) 5 SCC 173], paragraph 18 and
Rajesh Kumar Daria Vs. Rajasthan Public
Service Commission and others [(2007) 8
SCC 785], paragraph 6.

28. After having heard the rival
submission advanced by learned counsel
for the parties, I perused the material on
record.

29. Learned counsel for the petitioner
relied upon a judgment in the case of
Ramesh
Chandra
Sankla
(Supra),
relevant paragraphs 97 and 98 are being
quoted below :-
7 All. Mudita Bajpai Vs. State of U.P. & Ors.
1183

"97. The learned counsel for the
Company
placed
heavy
reliance
on
Shangrilla Food Products Ltd. v. Life
Insurance Corporation of India, (1996) 5
SCC 54. In a suit by A, an order was
passed by the Estate Officer against B
holding that it was in unauthorized
occupation and was liable to be evicted
under the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971. He
also ordered B to pay damages of Rs. 12
lakhs. An appeal was filed by B against the
order
and
the
Appellate
Authority
confirmed the order of eviction. The High
Court, however, felt that an opportunity
ought to have been afforded to B to prove
that it was a lawful sub-tenant. The matter,
therefore, required remand. At that stage, A
prayed that in that case, the matter be
remanded as a whole to be decided afresh
considering the question of payment of
rent/damages also. The High Court upheld
the plea, negativing the contention of B that
A had never challenged the order setting
aside the direction as to payment of
damages.
B
approached
this
Court.
Dismissing the appeal, confirming the
order of the High Court and adverting to
substantial justice, this Court stated :

"""It is well-settled that the High
Court in exercise of its jurisdiction under
Article 226 of the Constitution can take
cognizance
of
the
entire
facts
and
circumstances of the case and pass
appropriate orders to give the parties
complete and substantial justice. This
jurisdiction of the High Court, being
extraordinary, is normally exercisable
keeping in mind the principles of equity.
One of the ends of the equity is to promote
honesty and fair play. If there be any unfair
advantage gained by a party priorly, before
invoking the jurisdiction of the High Court,
the court can take into account the unfair
advantage gained and can require the
party to shed the unfair gain before
granting relief. What precisely has been
done by the learned Single Judge, is clear
from the above emphasised words which be
re-read with advantage. The question of
claim to damages and their ascertainment
would only arise in the event of the Life
Insurance
Corporation,
respondent,
succeeding to prove that the appellant
Company was an unlawful sub-tenant and
therefore in unauthorised occupation of
public premises. If the finding were to go in
favour of the appellant Company and it is
proved to be a lawful sub-tenant and hence
not an unauthorised occupant, the direction
to adjudge the claim for damages would be
rendered sterile and otiose. It is only in the
event of the appellant Company being held
to be an unlawful sub-tenant and hence an
unauthorised occupant that the claim for
damages would be determinable. We see
therefore no fault in the High Court
adopting such course in order to balance
the
equities
between
the
contestants
especially when it otherwise had power of
superintendence under Article 227 of the
Constitution in addition. We cannot be
oblivious to the fact that when the
occupation of the premises in question was
a factor in continuation the liability to pay
for the use and occupation thereof, be it in
the form of rent or damages, was also a
continuing factor. The cause of justice, as
viewed by the High Court, did clearly
warrant that both these questions be
viewed inter-dependently. For those who
seek equity must bow to equity". (emphasis
supplied)""

98. From the above cases, it
clearly transpires that powers under
Articles 226 and 227 are discretionary and
equitable and are required to be exercised
in the larger interest of justice. While
granting relief in favour of the applicant,
the Court must take into account balancing
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
interests and equities. It can mould relief
considering the facts of the case. It can
pass an appropriate order which justice
may demand and equities may project. As
observed by this Court in Shiv Shankar Dal
Mills v. State of Haryana, (1980) 1 SCR
1170, Courts of equity should go much
further both to give and refuse relief in
furtherance of public interest. Granting or
withholding of relief may properly be
dependent upon considerations of justice,
equity and good conscience."

30. He relied upon a judgment in the
case of Shangrila Food Products (Supra),
relevant paragraph 11 is being quoted
below :-

"11. It is well-settled that the
High Court in exercise of its jurisdiction
under Article 226 of the Constitution can
take cognisance of the entire facts and
circumstances of the case and pass
appropriate orders to give the parties
complete and substantial justice. This
jurisdiction of the High Court, being
extraordinary, is normally exercisable
keeping in mind the principles of equity.
One of the ends of the equity is to promote
honesty and fair play. If there be any unfair
advantage gained by a party priorty, before
invoking the jurisdiction of the High Court,
the court can take into account the unfair
advantage gained and can require the
party to shed the unfair gain before
granting relief. What precisely has been
done by the learned Single Judge, is clear
from the above emphasised words which be
re- read with advantage. The question of
claim to damages and their ascertainment
would only arise in the event of the Life
Insurance
Corporation,
respondent,
succeeding to prove that the appellant
Company was an unlawful sub-tenant and
therefore in unauthorised occupation of
public premises. If the finding were to go in
favour of the appellant Company and it is
proved to be a lawful sub-tenant and hence
not an unauthorised occupant, the direction
to adjudge the claim for damages would be
rendered sterile and otiose. It is only in the
event of the appellant Company being held
to be an unlawful sub-tenant and hence an
unauthorised occupant that the claim for
damages would be determinable. We see
therefore no fault in the High Court
adopting such course in order to balance
the
equities
between
the
contestants
especially when it otherwise had power of
superintendance under Article 227 of the
Constitution in addition. We cannot be
oblivious to the fact that when the
occupation of the premises in question was
a factor in continuation the liability to pay
for the use and occupation thereof, be it in
the form of rent or damages, was also a
continuing factor. The cause of justice, as
viewed by the High Court, did clearly
warrant that both these questions be
viewed inter-dependently. For those who
seek equity must bow to equity."

31. He relied upon a judgment in the
case of Shaheen Parveen (Supra), relevant
paragraph 17 is being quoted below :-

"17. The writ court, being a court
of equity, must take into consideration all
relevant factors brought before it to deliver
substantial justice. Equity justifies bending
the rules, where fair play is not violated,
with a view to promote substantial justice.
A writ court cannot contemplate any
limitation
on
its
power
to
deliver
substantial justice. It has to be ensured that
a consumer of justice gets complete justice,
instead of going into the nicety of law.
Under the circumstances, the court cannot
be a mere onlooker if injustice is likely to
be caused."
7 All. Mudita Bajpai Vs. State of U.P. & Ors.
1185

32. He relied upon a judgment in the
case of State of U.P. Vs. Dr. Dina Nath
Shukla & Another (Supra), relevant
paragraphs 11 and 13 are being quoted
below :-

"11. In Dr. Suresh Chandra
Verma & Ors. vs. The Chancellor, Nagpur
University & Ors. [(1990) 4 SCC 55]
instead of making subjectwise recruitment,
an advertisement in respect of total of 77
posts including 13 posts of Professors, 29
posts of Readers and 35 posts of Lecturers
were issued and recruitment was sought to
be made. When it was questioned, this
Court tested the principle on the anvil of
equality and fairness of procedure posing
the question thus:

"""Is non-reserving the posts of
University teachers subjectwise in the
employment notice a breach of letter and
spirit of reservation policy contained in
Section 77-C read with Section 57 of the
Act?""

This Court had laid down in
paras 10 to 12 thus:

As regards the first question, we
have narrated earlier the method which
was adopted by the University for reserving
the
posts.
It
announced
the
posts
categorywise as professors, Readers and
Lecturers in different subjects and made a
blanket declaration that 6 of the posts of
Professors, 12 of the posts of Readers and
16 of the posts of Lecturers would be
reserved for backward casts. Neither the
University nor the candidates knew at that
time as to for which of the subjects and in
what number the said posts were reserved.
The result was that the candidates
belonging to the reserved category in
particular, who wanted to apply for the
reserved posts did not know for which of
the posts they could apply and whether they
could apply at all for the posts in the
subjects in which they were qualified. That
this could be the expected consequence of
such an employment notice can legitimately
be inferred and need not be and indeed
cannot be, demonstrated by evidence of
what actually happened, for there may be a
number of candidates who on account of
the said uncertainty might to take a chance.
What is further, the selection committees
which were appointed to interview that
candidates for the respective posts did not
also know whether they were interviewing
the candidates for reserved posts or not,
and to assess merits of the candidates from
the reserved category as such candidates.
The contention advanced on behalf of the
appellants that the selection committee
even without knowing to the candidates
from the reserved category and, therefore,
it cannot be said that any injustice had
resulted to them is without merit. In the
first instance, the contention proceeds on
the footing that all those belonging to the
reserved category who wanted to apply for
all the said posts had done so even without
knowing that the concerned posts were
reserved. Secondly, it also presumes that
all eligible candidates from unreserved
category had applied for the posts without
knowing whether the posts were reserved
or not. The possibility that many eligible
candidates belonging to both reserved and
unreserved categories might not have taken
the risk and chosen to gamble cannot be
ruled out. This argument further ignores
the fact, that the suitability of a candidate
from a reserved category to the particular
post has to be adjudged by taking into
consideration various factors and the
desired result cannot be obtained by merely
giving uniform weightage marks to the
candidates concerned which was the only
method
followed
by
the
selection
committees while selecting the candidates.
Further, there is nothing on record to show
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
that this method of giving weightage to the
candidate was not followed in respect of
reserved category candidates even if they
had not applied for the post in the reserved
seats. What is more, there is also nothing
on record to show whether any candidate
belonging to the reserved category had
applied for a particular post in a reserved
seat, without the prior knowledge that the
post was reserved. It is, therefore, difficult
to understand as to how the selection
committees proceeded to give weightage to
the candidates without knowing whether
they had applied for reserved or nonreserved seats. What is more objectionable
in the procedure was that its Executive
Council proceeded to classify the posts in
different subjects between reserved and
non-reserved posts after the lists of selected
candidates were received from different
selection committees. This method was
open to an obvious objection since it gave a
scope to eliminate unwanted selected
candidates at that stage. Whether it
occurred in the present case or not is
immaterial for testing the validity and the
propriety of the method followed by the
university. As has been stated earlier, in
fact, after the receipt of the list of selected
candidates not only the Executive Council
constituted yet another committee to decide
which of the subjectwise posts should be
reserved or not but the Executive Council
also decided that although candidates for
47 posts were selected only 30 of the posts
were set apart although the candidates
were selected for them, and they were so
set apart for being filled in afresh by
candidates belonging tot he reserved
category.
Interestingly,
however,
the
employment notice issued subsequently for
these
posts
mentioned
reservations
postwise (subjectwise).

According to us, the word "post"
used in the context has a relation to the
faculty, discipline, or the subject for which
it is created. When, therefore, reservations
are required to be made "in posts", the
reservations have to be postwise, i.e.
subjectwise. The mere announcement of the
number of reserved posts is no better than
inviting applications for posts without
mentioning the subjects for which the posts
are advertised. When, therefore, Section
57(4)(a) requires that the advertisement or
the employment notice would indicate the
number of reserved posts, if any, it implies
that the employment notice cannot be
vague and has to indicate the specific post,
i.e., the subject in which the post is vacant
and for which the applications are invited
from the candidates belonging to the
reserved class. A non-indication of the post
in this manner itself defeats the purpose for
which the applications are invited from the
reserved
category
candidates
and
consequently negates the object of the
reservation policy. That this is also the
intention of the legislature is made clear by
Section
57(4)(d)
which
requires
the
selection committees to interview and
adjudge the merits of each candidate and
recommend him or her for appointment to
"the general posts" and "the reserved
posts", if any, advertised.