# Namit Kumar Pandey & Ors v. State of U.P. & Ors. 442 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 10 ILRA 441
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-09
- **Case number:** WRIT - A No. 10396 of 2019
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/namit-kumar-pandey-ors-v-state-of-u-p-ors-442-indian-law-reports-allahabad-45354
- **Pages:** 17

## Headnote

Sri Alok Kumar Kushwaha, Sri Akhilendra
Yadav, Sri Alok Dwivedi, Sri Anil Kumar Yadav,
Sri B.S. Pandey, Sri Hritudhwaj Pratap Sahi, Sri
Indresh Kumar Singh, Sri J.S. Baghel, Sri
Kailash Singh Kushwaha, Sri Kamlesh Kumar
Tripathi, Sri Krishna Kant Singh, Sri Mujib
Ahmad Siddiqui, Sri Prem Prakash, Sri Rajesh
Kumar Singh, Sri Samarth Singh, Sri Sanjeev
Kumar Singh, Sri Shikher Trivedi, Sri Shivendu
Ojha, Sri Siddharth Singhal, Sri Vijay Kumar, Sri
S.M.A. Abidy, Sri Santosh Yadav, Sri G.K. Singh,
Sri Radha Kant Ojha

A.
Service
Law
-
U.P.
Laboratory
Technician (Medical, Health and Family
Welfare Department) Service Rules, 1994
- Rule 8 - U.P. Procedure for Direct
Recruitment
against
Group
'C'
Post
(Outside the Purview of Public Service
Commission (Fourth Amendment) Rules,
2014 - Selection Process -

(i) Where there is a composite test consisting
of a written examination followed by a viva
voce test, the number of candidates to be
called for interview in order of the marks
obtained in the written examination, should
not exceed twice or at the highest, thrice the
number of vacancies to be filled. But,
something more than merely calling an unduly
large number of candidates for interview must
be shown in order to invalidate the selections
made - The writ petitioners have failed to show any
prejudice caused to them by including more number
of candidates in the zone of consideration for
interview by lowering cut off marks. The final list was
prepared on the basis of marks obtained in the
written examination, interview, academics and sports
and even then, final cut off marks still remained high
to be 63.5 marks for unreserved, 58.5 marks for
OBC, 55 marks for SC and 55.5 marks for ST. (Para
10.02)

(ii) The 3 time formula can be applied
uniformly to all the categories reserved as
well as unreserved. Therefore, UPSSSC has
not committed any error in lowering the cut off
marks to call 3 times candidates for interview
for all the categories. (Para 10.01)

In the present case 477 posts of General Category
were advertised, therefore, 1431 candidates were
required to be called for interview applying
principle of '3x'. Since, only 1148 candidates were
available in the said category, therefore, even the
last candidate from General Category was called
for interview. Such last candidate had obtained 0.5
marks in the written examination. In terms of ratio
of judgment passed by this Court in Lalit Kumar
Vs. State of U.P. & Ors (infra), cut off marks of
other categories were also lowered down. On the
basis of new cut off marks, the merit list was
redrawn and final merit list on 07.01.2019,
declared 3494 candidates eligible for interview. In
pursuance of a new information dated 15.01.2019,
for c

## Text

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10 All. Namit Kumar Pandey & Ors. Vs. State of U.P. & Ors.
441
different
High
Courts
there
arose
contradictions on the views of the Hon'ble
Judges and the stage of confusion started as
to which judgment be implemented for the
cause and the issue was settled by the
Hon'ble Apex Court in the case of State of
Punjab & Ors. Vs. Rafiq Masih (White
Washer) etc. 2014 8 SCC 883, and the
Hon'ble Apex Court considering all the
judgments passed earlier in this regard, was
pleased to pass the final direction and the
conclusion was given in paragraph no.12 of
the judgment, which is given as under:-

"12. It is not possible to postulate all
situations of hardship, which would govern
employees on the issue of recovery, where
payments have mistakenly been made by the
employer, in excess of their entitlement. Be that
as it may, based on the decisions referred to
herein above, we may, as a ready reference,
summarise the following few situations,
wherein recoveries by the employers, would be
impermissible in law:

(i)
Recovery
from
employees
belonging to Class-III and Class-IV service (or
Group-C and Group-D service).

(ii) Recovery from retired employees,
or employees who are due to retire within one
year, of the order of recovery.

(iii) Recovery from employees,
when the excess payment has been made
for a period in excess of five years, before
the order of recovery is issued.

(iv) Recovery in cases where an
employee has wrongfully been required to
discharge duties of a higher post, and has
been paid accordingly, even though he
should have rightfully been required to
work against an inferior post.

(v) In any other case, where the
Court arrives at the conclusion, that
recovery if made from the employees,
would be iniquitous or harsh or arbitrary
to such an extent, as would far outweigh
the equitable balance of the employer's
right to recover."

10. From the perusal of the proposition of
law laid down in the above mentioned
judgment of the Hon'ble Apex Court as well as
of this Court, established that the case of the
petitioner clearly fall in that category and is not
liable to refund any amount in pursuance of the
impugned orders passed by the respondent
authorities.
As
there
has
been
no
misrepresentation or fraud on the part of the
petitioner and petitioner could not be asked by
respondent to return the same, the recovery of
the amount would cause great hardship to the
petitioner.

11. Accordingly, the impugned orders of
recovery dated 03.01.2019 and 09.05.2019
passed by the respondent nos. 1 and 2 cannot be
sustained and are liable to be quashed.

12. With the aforesaid observations, the
writ petition is allowed and the impugned
orders dated 03.01.2019 and 09.05.2019 are
quashed.

13. No order as to costs.
----------
(2020)10ILR A441
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2020

BEFORE
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

WRIT - A No. 10396 of 2019
with
WRIT - A No. 10448 of 2019
&
other connected cases

Namit Kumar Pandey & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
442 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Sri Seemant Singh, Sri Santosh Yadav, Sri
Ashok Khare

Counsel for the Respondents:
Sri Alok Kumar Kushwaha, Sri Akhilendra
Yadav, Sri Alok Dwivedi, Sri Anil Kumar Yadav,
Sri B.S. Pandey, Sri Hritudhwaj Pratap Sahi, Sri
Indresh Kumar Singh, Sri J.S. Baghel, Sri
Kailash Singh Kushwaha, Sri Kamlesh Kumar
Tripathi, Sri Krishna Kant Singh, Sri Mujib
Ahmad Siddiqui, Sri Prem Prakash, Sri Rajesh
Kumar Singh, Sri Samarth Singh, Sri Sanjeev
Kumar Singh, Sri Shikher Trivedi, Sri Shivendu
Ojha, Sri Siddharth Singhal, Sri Vijay Kumar, Sri
S.M.A. Abidy, Sri Santosh Yadav, Sri G.K. Singh,
Sri Radha Kant Ojha

A.
Service
Law
-
U.P.
Laboratory
Technician (Medical, Health and Family
Welfare Department) Service Rules, 1994
- Rule 8 - U.P. Procedure for Direct
Recruitment
against
Group
'C'
Post
(Outside the Purview of Public Service
Commission (Fourth Amendment) Rules,
2014 - Selection Process -

(i) Where there is a composite test consisting
of a written examination followed by a viva
voce test, the number of candidates to be
called for interview in order of the marks
obtained in the written examination, should
not exceed twice or at the highest, thrice the
number of vacancies to be filled. But,
something more than merely calling an unduly
large number of candidates for interview must
be shown in order to invalidate the selections
made - The writ petitioners have failed to show any
prejudice caused to them by including more number
of candidates in the zone of consideration for
interview by lowering cut off marks. The final list was
prepared on the basis of marks obtained in the
written examination, interview, academics and sports
and even then, final cut off marks still remained high
to be 63.5 marks for unreserved, 58.5 marks for
OBC, 55 marks for SC and 55.5 marks for ST. (Para
10.02)

(ii) The 3 time formula can be applied
uniformly to all the categories reserved as
well as unreserved. Therefore, UPSSSC has
not committed any error in lowering the cut off
marks to call 3 times candidates for interview
for all the categories. (Para 10.01)

In the present case 477 posts of General Category
were advertised, therefore, 1431 candidates were
required to be called for interview applying
principle of '3x'. Since, only 1148 candidates were
available in the said category, therefore, even the
last candidate from General Category was called
for interview. Such last candidate had obtained 0.5
marks in the written examination. In terms of ratio
of judgment passed by this Court in Lalit Kumar
Vs. State of U.P. & Ors (infra), cut off marks of
other categories were also lowered down. On the
basis of new cut off marks, the merit list was
redrawn and final merit list on 07.01.2019,
declared 3494 candidates eligible for interview. In
pursuance of a new information dated 15.01.2019,
for candidates who had participated in the written
examination to submit their self attested copy of
the registration certificate issued by the U.P. State
Medical Faculty, 278 candidates submitted their
certificates
and
were
declared
eligible
to
participate in the interview. Thus, total number of
candidates to appear in the interview became
3772. The final result was declared on 15.06.2019
against 921 posts of Lab Technician. (Para 3.13)

B. The UPSSSC has not committed any
fault by granting opportunity to all the
candidates to apply for registration with
the U.P. State Medical Faculty and submit
their registration certificates prior to the
prescribed date and in order to include
names of such candidates, the UPSSSC has
rightly redrawn the merit list - The case set
up by the petitioners in the writ petitions is
mainly on the ground that under the garb of
redrawing of the merit list, large number of
candidates who were not able to qualify earlier
in the written examination, are now declared to
be qualified and made eligible for interview.
Even the candidates who did not possess the
requisite qualification of Diploma before the cut
off date were also declared eligible for interview
and finally some meritorious candidates were
left out and less meritorious candidates got
selected and therefore merit was compromised.
(Para 3.15)

Court observed that directions issued by the
Division Bench vide judgment and order dated
10 All. Namit Kumar Pandey & Ors. Vs. State of U.P. & Ors.
443
04.04.2017 (while deciding an appeal against
judicial
pronouncement
dated
25.11.2013,
rendering decision in a challenge to the
advertisement dated 09.09.2016, issued for
conducting Combined Laboratory Technician
General Recruitment Competitive Examination,
2016 (examination for selection in question)),
for permitting candidates who had passed the
diploma course before the cut off date, to get
themselves registered before U.P. State Medical
Faculty and to present certificates before the
Commission for consideration of their names,
could be implemented only when merit list was
redrawn. (Para 6.06, 8.03, 8.05, 8.06)

C. Constitution of India: Article 14 - The
Division Bench directed the candidates to apply
for registration certificates from U.P. State
Medical Faculty on the ground that the said
eligibility condition was not mentioned in the
advertisement, therefore, all the candidates who
were selected or not selected in the first select
list were entitled to rectify it by getting
themselves registered with the U.P. State
Medical Faculty. The said direction is based on
the well recognised principle of Article 14 of the
Constitution of India. (Para 3.01- 3.03, 9)

D. Principle of Estoppel - It is well settled
that petitioners who have consciously
taken part in selection process cannot
turn
around
and
question
the
very
selection process - The petitioners neither
challenged
the
redrawn
merit
list
dated
07.01.2019, nor arrayed selected candidates as
respondents, this aspect goes against the
petitioners. Petitioners have not alleged any
malafide or favourism in the entire selection
process. (Para 13)

Writ petition dismissed. (E-4)

Precedent followed:

1. Lalit Kumar Vs St. of U.P. & ors, Writ Petition
No. 68706 of 2015, decided on 11.01.2016
(Para 3.13)

2. Ashok Kumar Yadav & ors Vs St. of Hary. &
ors, (1985) 4 SCC 417 (Para 10)

3. Nitin Kumar & ors. Vs St. of U.P. & ors., 2015
(4) ADJ 701 (Para 10.01)
4. Km. Rashmi Mishra Vs M.P. Public Service
Commission & ors. (2006) 12 SCC 724) (Para
13)

5. Ramesh Chandra Shah & ors. Vs Anil Joshi &
Ors, (2013) 11 SCC 309 & paras 14, 15, 16, 17
and 18 of Madras Institute of Development
Studies & anr. Vs. K. Sivasubramaniyan & ors.
(2016) 1 SCC 45 (Para 13)

Present petition challenges final result
dated 15.06.2019 of Combined Laboratory
Technician
General
Recruitment
Competitive Examination, 2016, held for
selection for posts of Lab Technician.

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

1. Heard Seemant Singh, Mahendra
Singh, Jitendra Kumar, Chandra Dutt and
Ajay
Kumar
Sharma,
Advocates
for
petitioners;
Neeraj
Tripathi,
Senior
Advocate, Additional Advocate General for
State; Siddharth Singhal, Advocate for U.P.
Subordinate
Service
Selection
Commission, Radha Kant Ojha, Mujib
Ahhmad Siddiqui, B.S. Pandey, Sanjeev
Kumar Singh, J. S. Baghel, Kailash Singh
Kushwaha and Vijay Kumar Singh, Senior
Advocate for private respondents.

2. In all the writ petitions similar
relief has been sought, hence they are being
decided by this common judgment.

3. Facts of the present case.

3.01 The present set of writ
petitions are in regard to selection for the
post of Lab Assistant namely: Combined
Laboratory
Technician
General
Recruitment
Competitive
Examination,
2016
(hereinafter
referred
to
as
"Examination
2016").
The
essential
qualifications for the post concerned are
prescribed in Rule 8 of the U.P. Laboratory
444 INDIAN LAW REPORTS ALLAHABAD SERIES
Technician (Medical, Health and Family
Welfare Department) Service Rules, 1994
(hereinafter referred to as the "Rules,
1994") which reads as under:

"8. प्रयोगशाला तकिीमशयि के पद
पर सीधी भती के मलये आवश्यक है मक अभ्यथी
िे िाध्यमिक मशक्षा पररर्द उत्तर प्रदेश की
मवज्ञाि के साथ इण्टरिीमडयट परीक्षा या सरकार
द्वारा उसके सिकक्ष िान्यता प्राप्त कोई परीक्षा
उत्तीणष की हो और उत्तर प्रदेश स्ट्ेट िेमडकल
फेकल्टी, लखिऊ द्वारा मदया गया प्रयोगशाला
तकिीमशयि मडप्लोिा या मकसी िान्यता प्राप्त
संस्था से उसके सिकक्ष कोई मडप्लोिा रखता
हो। "

"8. For direct recruitment to the
post of Laboratory Technician, applicant
must
have
passed
Intermediate
Examination conducted by the Uttar
Pradesh Board of High School and
Intermediate Education with science or any
examination recognized by the government
as equivalent thereto and must posses
Laboratory Technician diploma awarded
by the Uttar Pradesh State Medical
Faculty,
Lucknow
or any
equivalent
diploma from any recognized institution."
(English translation by the Court).

3.02
The
State
Government
issued
a
Government
Order
dated
20.12.2003, in compliance of common
judgment and order dated 23.5.2003 passed
by Lucknow Bench, leading writ petition
being Writ Petition No.7001 S/S of 2001,
Atul Kumar Bhardwaj & Ors. Vs. State of
U.P. & Anr., wherein it is provided in
paragraph 11 that the candidates in
possession of Diploma in Lab Technician
trade shall be required to be registered with
the U.P. State Medical Faculty and only
such candidates shall be eligible for
appointment/selection to the post of Lab
Technician.

3.03 The aforesaid Government
Order was subject matter of challenge in
Writ Petition No.64102 of 2013, (Shailesh
Kumar Vs. State of U.P. & Ors), wherein
the co-ordinate bench of this court vide
judgment and order dated 25.11.2013
rejected the writ petition and refused to
interfere with the said government order.

3.04 The selection process was
required to be conducted as per the
procedure prescribed in U.P. Procedure for
Direct Recruitment against Group ''C' Post
(Outside the Purview of Public Service
Commission (Fourth Amendment) Rules,
2014 notified on 29.1.2014 (to be referred
as Rules 2002 as amended).

3.05 Initially, U.P. Subordinate
Services Selection Commission (hereinafter
referred
to
as
"UPSSSC")
issued
advertisements dated 16.6.2016 and 16.8.2016
for recruitment/appointment on the post of Lab
Technician. However, it was challenged and
quashed by a co-ordinate bench at Lucknow
Bench with the direction to UPSSSC to issue
fresh notifications strictly in accordance with
the provisions contained in ''Rules, 2002 as
amended' in the case of Keshv Pal & 2 Ors. Vs.
State of U.P. through Principal Secretary,
Medical and Health Lucknow & Ors; Service
Single No.18077/2016 decided on 19.8.2016.

3.06
In
compliance
of
the
abovementioned
directions,
UPSSSC
issued
fresh
advertisement
No.17/Examination/2016 dated 09.9.2016
for conducting Combined Lab Technician
Examination, 2016 in accordance with
Rules, 2002 as amended by Fourth
Amendment Rule 2014. Break up of
vacancies is as follows:

General Category - 477

Other Backward Class Category225

Scheduled
Caste
Category-
205
10 All. Namit Kumar Pandey & Ors. Vs. State of U.P. & Ors.
445

Scheduled
Tribe
Category-
14

Total 1431.

3.07
In
pursuance
of
the
abovementioned
advertisement,
written
examination was conducted on 20.11.2016,
result thereof was declared on 19.12.2016.
The UPSSSC declared cut off marks of all
the categories, by office memorandum
dated 3.2.2017, which is as follows:

"उत्तर प्रदेश अधीिस्थ सेवा र्यि आयोग
मपकप भवि, तृतीय तल, गोिती िगर,
लखिऊ।
संख्या. 1011 /गोपि अिुभाग/2016
लखिऊः मदिांक 03 फरवरी,2017
सन्धम्ममलत प्रयोगशाला प्रामवमधज्ञ (सािान्य
र्यि) प्रमतयोमगतात्मक
परीक्षा, 2016

क्रि
संख्या
श्रेणी
मलन्धखत परीक्षा
कट-आफ अंक
1
अिारमक्षत वगष
13.00
2
अिुसूमर्त जामत 12.50
3
अिुसूमर्त
जिजामत
10.50
4
अन्य
मपछडा
वगष
13.00

क्षैसतज आरक्षणः-

क्रि
संख्या
श्रेणी
मलन्धखत
परीक्षा
कटआफ अंक
1
स्व०
संग्राि
11.50
सेिािी
आमश्रत
2
मवकलांग
जि
12.00
3
सैन्य
मियोमजत/
भूतपूवष
सैमिक
10.50
4
िमहलाओं
हेतु
13.00

(िहेश प्रसाद)
समर्व"

3.08
Meanwhile,
the
above
referred advertisement dated 09.9.2016 was
challenged before a co-ordinate bench at
Lucknow Bench in Mahendra Veer Vikram
Singh and Ors. Vs. State of U.P. & Ors,
(S/S) No.2350 of 2017, on the ground that
the said advertisement was not issued in
tune with the judgment and order dated
23.5.2003 passed by co-ordinate bench at
Lucknow Bench in writ petitions, leading
being Atul Kumar Bhardwaj (supra) and
the same was also in derogation of the
Government
Order
dated
20.12.2003,
issued in compliance of said judgment.

3.09 The said writ petitions were
disposed of vide order dated 14.2.2017
with certain directions. The relevant
observations and the directions passed by
the co-ordinate bench at Lucknow Bench
are as follows:

"The basic premise of challenge
put forth by learned counsel for the
petitioners in both the petitions is that the
prescription in relation to the eligibility
qualification as advertised is not in tune
with the judgement and order dated
446 INDIAN LAW REPORTS ALLAHABAD SERIES
23.05.2003 passed by this Court in a bunch
of writ petitions, leading writ petition being
Writ Petition No.7001 (S/S) of 2001 and the
same is in derogation of the Government
Order issued on 20.12.2003 by the State
Government for ensuring compliance of the
judgement and order dated 23.05.2003
passed by this Court.

The recruitment to the post of Lab
Technicians is governed by Uttar Pradesh
Lab Technician (Medical, Health and
Family Welfare Department) Service Rules,
1994 as amended from time to time.

Rule 8 of the said Rules
provides
the
eligibility
educational
qualification for appointment to the post
in question, according to which only
those candidates will be eligible for
appointment by way of direct recruitment
who
have
passed
Intermediate
examination from the Board of High
School and Intermediate Education, U.P.
Allahabad or any equivalent examination
and who are possessed with diploma in
Lab Technician granted by the U.P. State
Medical Faculty or any other diploma
equivalent thereto from a recognized
institution.

In
relation
to
eligibility
qualification, as prescribed in Rule 8 of
the Service Rules, various writ petitions
were filed before this Court by certain
individuals which were connected and
decided by a common judgement and
order dated 23.05.2003, leading writ
petition being Writ Petition No.7001 (S/S)
of 2001; Atul Kumar Bhardwaj and
others vs. State of U.P. and another. The
Court quashed the order/letter dated
05.12.2001, which was under challenged
in the aforesaid bunch of writ petitions,
and directed the State Government to
decide the question of equivalence of the
Lab Technician diploma held by the
petitioners therein and their eligibility to
participate in the selection process for
the post of Lab Technician by a speaking
order.

In compliance of the said order
dated 23.05.2003, the State Government
took a decision, which is embodied in the
Government Order dated 20.12.2003,
which has been annexed as annexure no.2
to the Writ Petition No.2350 (S/S) of
2017. According to the said Government
Order, U.P. State Medical Faculty was
directed to determine the equivalence of
the diploma granted by other institutions
in accordance with the conditions laid
down in the said Government Order. The
Government Order dated 20.12.2003
further states that the candidates in
possession of diploma in Lab Technician
Trade shall be required to be registered
with U.P. State Medical Faculty and only
those candidates who are registered with
U.P. State Medical Faculty shall be
eligible for appointment/selection to the
post of Lab Technician."

xxxx

xxxx

"It has been stated by learned
counsel for the petitioners that the
Government
Order
dated
20.12.2003
became subject matter of challenge before
this Court in Writ-A No. 64102 of 2013;
Shailesh Kumar vs. State of U.P. and
others. This Court while deciding the said
petition by means of judgement and order
dated
25.11.2013
did
not
find
any
justification
to
interfere
with
the
Government Order dated 20.12.2003. The
Government Order dated 20.12.2003, thus,
having been affirmed by this Court by
means of the aforesaid order, has to be
given effect to by the selecting body while
making selection/appointment to the post in
question. However, in absence of the
requisite informations/materials which the
State Government and the concerned
10 All. Namit Kumar Pandey & Ors. Vs. State of U.P. & Ors.
447
department were required to furnish to the
Commission, the apparent discrepancy in
the advertisement appears to have crept
in."

xxxx

xxxx

"Accordingly, the petitions are
disposed of with the direction to the
Commission to proceed with the selection
against the posts in question in accordance
with law and also taking into account the
provisions contained in Government Order
dated 20.12.2003.

It may further be observed that it
is common knowledge that the State of U.P.
is facing scarcity of Paramedical staff
which are urgently needed and hence, the
Court expects and hopes that the entire
selection process initiated on issuance of
the impugned advertisement shall be
completed expeditiously and for the said
purpose, the merit list prepared earlier on
the basis of written examination without
taking into consideration the provisions
contained in the Government Order dated
20.12.2003
shall
be
redrawn
and
accordingly the interview shall be held. The
entire process for selection shall be
completed expeditiously, say, within a
period of three months from today."

 (emphasis supplied)

3.10 The above referred judgment
and order dated 14.2.2017 was challenged
by some of the candidates who were
declared selected in the result of written
examination, but likely to be eliminated if
the above referred directions passed in the
said judgment are executed, by way of
filing Special Appeal Defective No.145 of
2017, (Pragati and 16 Ors. Vs. Mahendra
Veer Vikram Singh & 9 Ors) and Special
Appeal Defective No.118 of 2017, (Akil
Khan & Anr. Vs. Mahendra Veer Vikram
Singh & Ors.)

3.11 The said Special Appeals
were disposed of with certain directions
vide judgment and order dated 04.4.2017,
by Division Bench at Lucknow Bench. The
relevant observations and directions are
reproduced below:

"2. These two appeals have been
filed seeking leave to appeal to question the
correctness of the judgment of the learned
Single Judge dated 14.02.2017, the fallout
whereof is directly affecting the appellants,
and it is alleged that they having succeeded
in the selection process would now be
eliminated from the merit list, which is to
be prepared under the impugned judgment,
inasmuch as, the appellants are now sought
to be non-suited on the ground that they do
not
possess
the
equivalent
qualifications/eligibility criteria as per the
Government
Order
dated
20.12.2003,
which requires the registration of such
candidates with the U.P. State Medical
Faculty, which is a sine-qua-non as per
clause 11 of the aforesaid Government
Order."

"5. As a consequence of the
aforesaid
judgment,
the
matter
was
deliberated upon and the State Government
issued
the
Government
Order
dated
20.12.2003.
While
prescribing
the
parameters and ingredients of equivalence,
the G.O. also imposed an additional
condition of registration with the U.P. State
Medical Faculty as contained in Clause 11
thereof, which is extracted herein under:

" उपरोक्त शतों के अिुसार
सिकक्ष अन्य संस्थाओ का मिधाषरण उ०प्र०
स्ट्ेट िेमडकल फेकल्टी द्वारा मकया जायेगा
तथा सिकक्ष संस्थाओ से लैब टेक्नीमशयि का
मडप्लोिा प्राप्त अभ्यमथषयो को उ०प्र० स्ट्ेट
िेमडकल फेकल्टी िे पंजीकरण करािा
आवश्यक होगा तथा पंजीकृत अभ्यथी ही लैब
टेक्नीमशयि के पद पर र्यि हेतु अहष होगें।"
448 INDIAN LAW REPORTS ALLAHABAD SERIES

"7. It appears that advertisements
were issued on 08.01.2016 and again on
15.09.2016 for filling up the post of Lab
Technicians which is the subject matter of
the present appeal. The appellants also
applied and claim that they have qualified
in the written examination. It is at this
stage that a challenge was raised by those
persons who had not succeeded and
qualified by filing writ petitions that have
given rise to these appeals. The writ
petitions
were
entertained
without
impleading the appellants or any other
successful
candidates
and
has
been
ultimately disposed off by recording a
finding that the selection process has
proceeded without complying with the
terms and conditions as prescribed in the
Government Order dated 20.12.2003 and
consequently, the entire process has to be
revisited
and
the
list
of
successful
candidates rearranged after applying the
eligibility conditions prescribed therein.

"8. Learned counsel for the
appellants contend that this would amount
to changing the rules of the game after the
game has been played and consequently the
learned Single Judge has committed an
error in proceeding to issue such directions
without there being any such condition
imposed in the advertisements under which
the selections are being held. It was the
specific case of the appellants that this
condition was not contained or even
indicated
in
the
advertisement
and
consequently, the directions of the learned
Single Judge would be re-defining the
advertisement thereby causing prejudice to
the appellants. It is also submitted that
there was no notice to the appellants about
the inclusion of any such term and
condition of eligibility nor any opportunity
was given to the appellants to even obtain
the registration from the U.P. State
Medical Faculty. In such circumstances,
this would amount to denial of opportunity
thereby violating Article 14 and 16 of the
Constitution of India."

"9. Learned counsel for the
appellants, therefore, submit that the
impugned judgment cannot be permitted to
be applied in relation to such selections
that
are
a
consequence
of
the
advertisements
dated
08.01.2016
and
15.09.2016. It is urged that the terms of
eligibility after the selection is over cannot
be altered so as to eliminate the appellants
from the select list. It is urged that even
though a mere selection cannot give a right
of
appointment
but
if
the
selection
procedure is sought to be altered then any
subsequent change in eligibility cannot be
a ground to eliminate the appellants on the
strength of a condition, which was never
part of the advertisement on the basis
whereof, selections are being held."

"12. We have considered the
aforesaid submissions and after having
heard learned counsel for the parties, we
find that a selection, which is being held
bereft of the compulsory rules of eligibility
cannot be said to be valid selection and
consequently, if the selection is sought to
be rectified by introducing the said
compulsory eligibility criteria, we do not
find any error in the direction issued by the
learned Single Judge in applying the said
eligibility conditions, if it has been
deliberately omitted to be mentioned in the
advertisement. A mere omission would not
alter the terms and conditions of eligibility
inasmuch as that by itself would violate
Article 16 of the Constitution of India."

"13. We are, therefore, of the
opinion that the learned Single Judge was
fully justified in proceeding to apply the
eligibility conditions, the terms whereof
have already been upheld by the judicial
pronouncement
dated
25.11.2013.
Admittedly, the challenge raised to the
10 All. Namit Kumar Pandey & Ors. Vs. State of U.P. & Ors.
449
terms and conditions having been upheld
by this Court, there is no occasion now to
accept the argument that the selections
should be allowed to be completed without
complying with the provisions of the
eligibility as prescribed in the Government
Order dated 20.12.2013. We, therefore,
uphold the judgment of the learned Single
Judge to that extent.

14. Having said so, what appears
is that the said judgment has been delivered
without
putting
any
other
qualified
candidates including the appellants to
notice
and
without
providing
any
opportunity to such candidates to avail the
facility of registration from the U.P. State
Medical Faculty. To this, learned counsel
for the respondents submits that after the
judgment impugned herein was delivered
on 14.02.2017, the appellants were very
well are of the said terms and conditions
that were to be applied. More so, after the
issuance of notice on 06.3.2017 to the effect
that the appellants would not be further
eligible to be considered for selection. The
appellants having failed to avail of this
intervening period to get themselves
registered with the U.P. State Medical
Faculty, therefore, cannot be a reason for
them to claim that they should be extended
any benefit by setting aside the impugned
judgment. It is, therefore, submitted that
having failed to avail of this opportunity,
they cannot now question the correctness of
the impugned judgment on this ground."

"15. On this issue, we find
ourselves at variance with the submissions
raised on behalf of the respondents
inasmuch as it is admitted that the
advertisement
did
not
mention
the
aforesaid eligibility condition and which
omission was either deliberate or by
mistake, may not be a reason to deny the
opportunity to the appellants, who have
already applied and have qualified in the
written examination. This eligibility, in our
opinion, can be rectified in the event the
appellants succeed in getting themselves
registered with the U. P. State Medical
Faculty. Consequently, an opportunity to
them with a reasonable time to get
registered ought to be given keeping in
view the aforesaid background of the
litigation and the circumstances in which
the impugned judgment has brought about
this situation.

"16. Consequently, we direct that
all the appellants herein and such other
similarly situate candidates, who are not
before the Court, would be entitled to apply
before the U.P. State Medical Faculty and
in the event they are successfull in
obtaining such registration from the
competent authority, it will be open to them
to bring it to the notice of the respondent
Commission, and the Commission shall
proceed to comply with the judgment of the
learned Single Judge dated 14.02.2017
including the names of such candidates
who succeed and are able to supply the
said registration certificate before the
Commission within one month from today.
In the event the appellants apply before the
U.P. State Medical Faculty for such a
registration, such applications shall be
disposed off within three weeks from the
date of presentation of a certified copy of
this order in order to ensure that in the
event they are extended the benefit of
registration, they may be able to avail the
benefit during the final selection. The
appellants and other similarly situate
candidates
shall
be
entitled
to
be
considered provided they have qualified in
the written exam and are otherwise
qualified and eligible as per the relevant
rules and the Government order referred to
herein above." (Emphasis supplied)

3.12 In compliance of above
referred directions, the UPSSSC issued an
450 INDIAN LAW REPORTS ALLAHABAD SERIES
Important Information dated 25.4.2017 to
call upon all the candidates who were
covered by the said judgment to submit
their registration certificate issued by U.P.
State Medical Faculty till 24.5.2017. Last
date for submission of certificate was
extended till 06.11.2018 by subsequent
notification dated 31.10.2018 as mentioned
by the UPSSSC before this Court by way
of short counter affidavit dated 28.7.2019
and further that as per the guidelines, the
Commission has to call three times
candidates of the post advertised.

3.13 As per the stand taken by
UPSSSC, in the present case 477 posts of
General
Category
were
advertised,
therefore, 1431 candidates were required to
be called for interview applying principle
of ''3x'. Since, only 1148 candidates were
available in the said category, therefore,
even the last candidate from General
Category was called for interview. Such
last candidate had obtained 0.5 marks in the
written examination. In terms of ratio of
judgment passed by this Court in Lalit
Kumar Vs. State of U.P. & Ors, Writ
Petition No.68706 of 2015, decided on
11.1.2016 cut off marks of other categories
were also lowered down. On the basis of
new cut off marks, the merit list was
redrawn and finally the merit list was
declared
of
total
number
of
6494
candidates who were included within the
zone of eligibility for interview and the
result of the written examination declared
earlier on 29.12.2016 was cancelled and
redrawn merit list was declared on
07.1.2019. The candidates were called for
interview from 17.1.2019 to 2.2.2019. The
UPSSSC issued a new information dated
15.1.2019 for all the candidates who had
participated in the written examination to
submit their self attested copy of the
registration certificate issued by the U.P.
State Medical Faculty. In pursuance of the
said information 278 candidates, also
submitted their certificates and were
declared eligible to participate in the
interview. Thus, making the total number
of candidates to appear in the interview to
3772. The final result was declared on
15.6.2019 against 921 posts of Lab
Technician. The final cut of marks after the
interview
declared
by
UPSSSC
on
15.6.2019, is as follows:

"उत्तर प्रदेश अधीिस्थ सेवा र्यि आयोग
मपकप भवि, तृतीय तल, गोिती िगर,
संख्या. 400 /गोपि
अिुभाग/1/30/2016/2019
लखिऊः मदिांक 15 जूि,2019

मवज्ञापि संख्या-17-परीक्षा/2016 प्रयोगशाला
प्रामवमधज्ञ (सािान्य र्यि)
प्रमतयोमगतात्मक परीक्षा 2016 के अन्तगषत
मवज्ञामपत प्रयोगशाला प्रामवमधज्ञ पद का
अंमति कट-आफ अंक
लम्बवत आरक्षण

श्रेणी
अंमति कट आफ
अंक
अिारमक्षत
63.5
अन्य मपछडा वगष
58.5
अिुसूमर्त जामत
55
अिुसूमर्त जिजामत
55.5

क्षैमतज आरक्षण

श्रेणी
अंमति
कट-आफ
अंक
िमहला
53.5
10 All. Namit Kumar Pandey & Ors. Vs. State of U.P. & Ors.
451
स्वतंत्रता
संग्राि
सेिािी के आमश्रत
54.5
मवकलांग
59.5

मटप्पणी-

1- कामिषक अिुभाग -2, उत्तर
प्रदेश शासि के शासिादेश संख्या - 18/1/99
/का-2/
2006, मदिांक
09.01.2007 के
अिुसार राज्याधीि लोक सेवाओं और पदों
पर सीधी भती के प्रक्रि पर िमहलाओं को
अिुिन्य आरक्षण का लाभ केवल उत्तर
प्रदेश की िूल मिवासी िमहलाओं को ही
अिुिन्य है।

2- कामिषक अिुभाग - 3, उत्तर
प्रदेश शासि की अमधसूर्िा संख्या -
32/2015/857/47 -का-3- 2015-13 /19/2015,
मदिांक 11.05.2015 के मियि- 8(2)(र्ार) के
अिुसार - यमद दो या अमधक अभ्यथी
बराबर-बराबर औसत अंक प्राप्त करें, तो
मलन्धखत परीक्षा िें उच्चतर अंक प्राप्त
करिे वाले अभ्यथी को उच्चतर स्थाि पर
रखा जायेगा। यमद दो या अमधक अभ्यथी
मलन्धखत परीक्षा िें भी बराबर-बराबर अंक
प्राप्त करें तो सूर्ी िें उस अभ्यथी को
उच्चतर स्थाि पर रखा जायेगा, जो आयु
िे ज्येष्ठ होगा।
(आशुतोर् िोहि अमग्नहोत्री)
समर्व "

3.14 In total, 11 Writ Petitions are
filed before this Court challenging the
impugned final result dated 15.6.2019.
None
of
the
writ
petitioners
have
challenged
select
redrawn
list
dated
7.1.2019 and declaration of cut off marks
dated 15.6.2019. According to the records
available, neither the writ petitioners nor
the respondents have approached the
Division Bench for any clarification of the
judgment and order passed by Division
Bench nor any review petition is preferred.

3.15 The case set up by the
petitioners in the writ petitions is mainly on
the ground that under the garb of redrawing
of the merit list, large number of candidates
who were not able to qualify earlier in the
written examination, are now declared to be
qualified and made eligible for interview.
Even the candidates who did not possess
the requisite qualification of Diploma
before the cut off date were also declared
eligible for interview and finally some
meritorious candidates were left out and
less meritorious candidates got selected and
therefore merit was compromised.

3.16 This Court by order dated
26.8.2019 after taking note of cut off marks
on the basis of which final merit list was
issued passed an interim order. Operative
part of the order is reproduced below:-

"Till the next date of listing, the
impugned result dated 15.6.2019 shall be
kept in abeyance. The State Government
shall not issue any further appointment
pursuant to it and the appointments already
made shall remain subject to the outcome
of the present writ petition."

3.17 This Court by another order
dated
08.1.2020
extended
the
above
referred interim order and disposed of all
the impleadment applications/intervention
applications. Relevant part of the order is
mentioned below:

"All
these
impleadment
applications and applications styled as
intervention application have been filed by
the selected candidates. A representative
number of the selected candidates are
already on record as respondent Nos.3 to
11. All these impleadment applications are
disposed of with a direction that the
applicants in each of the impleadment or
intervention applications made shall be
452 INDIAN LAW REPORTS ALLAHABAD SERIES
heard under Chapter XXII Rule 5A of the
Rules of the Court. The names of each of
the learned counsel who have filed the
above detailed impleadment applications
shall be printed in the cause list on
22.01.2020."

3.18 Later on an application was
filed by the State of U.P. for modification
of the interim order dated 26.8.2019,
seeking permission to continue with the
process of appointment of the remaining
729 posts of Lab Technicians. After
hearing the parties, prayer was allowed and
the interim order dated 26.8.2019 was
accordingly modified vide order dated
13.5.2020 passed by this Court, which
stated that:

" The COVID-19 Pandemic has
already spread all over the India including
State of U.P,. despite various remedial
steps taken by the concerned authorities.
The Lab Technicians have important role
in testing which is increasing day by day. It
is
on
record
that
about
186
Lab
Technicians have joined their respective
post before the interim order dated
26.8.2019
was
passed
though
their
appointments are kept subject to the
outcome of the present writ petitions.

Considering
subsequent
developments due to COVID-19 Pandemic
and the importance of the Lab Technicians
for testing, this Court is of the view that
State be permitted to fill up remaining 729
posts of the Lab Technicians. However,
their appointments shall also remain
subject to the final outcome of the writ
petition.

Accordingly, paragraph no.8 of
the order dated 26.8.2019 is modified and
is to be read as follows "State of U.P. is
permitted to expeditiously carry out the
process of joining of remaining 729
selected Lab Technicians from the selection
list. Appointments made prior to order
dated 26.8.2019 as well as subsequent to
present order, shall remain subject to the
final outcome of the present writ petitions".

4. Learned Advocates appearing on
behalf of the petitioners as well as on
behalf of the respondents and applicants
who
have
filed
applications
for
impleadment or intervention, are heard
through Video Conferencing as well as by
physical appearance in detail. Perused
various
counter
affidavits,
rejoinder
affidavits and written submissions filed by
rival parties.

5. Submissions on behalf of the
petitioners.

Crux of the arguments submitted
by the various advocates appearing on
behalf of the writ petitioners could be
summarised as follows:

5.01 The two directions passed by
the Single Bench in the case of Mahendra
Veer Vikram Singh (supra): Firstly that
the Commission shall proceed with the
selection in accordance with law and would
also take into account the provisions
contained in Government Order dated
20.12.2003 and Secondly the merit list
prepared earlier on the basis of written
examination conducted without taking into
consideration the provisions contained in
the Government Order dated 20.12.2003
shall be redrawn, were challenged before
the Division Bench and the Division Bench
vide judgment and order dated 04.4.2017
upheld only the first direction, however the
second direction for redrawing the merit
list was not upheld. In support of their
submissions, counsels have relied upon
certain paragraphs of the judgment passed
by the Division Bench.

5.02 The other arguments are
with regard to the directions made by the
10 All. Namit Kumar Pandey & Ors. Vs. State of U.P. & Ors.
453
Division Bench regarding opportunity for
getting registered with the U.P. State
Medical Faculty. It is contended that this
would only be applicable to the appellants
in the special appeal and such other
similarly situated candidates, who were not
before the Division Bench, therefore, the
procedure undertaken by the UPSSSC for
redrawing the merit list by lowering down
the cut off marks to accommodate all the
candidates irrespective whether they were
appellants or similar to appellants in special
appeals is not correct, being beyond the
directions passed by Division Bench.