# Nitin Pandey & Ors v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1892
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-19
- **Case number:** Writ-A No. 49709 of 2017
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nitin-pandey-ors-v-state-of-u-p-ors-45079
- **Pages:** 11

## Headnote

C.S.C., Sri Kailash Singh Kushwaha, Sri
Prabhakar Awasthi

A. Service - Appointment/Recruitment -
U.P.
Subordinate
Service
Selection
Commission Act, 2014: Section 2, 15(2), 17,
18; U.P. Industry Department (Handloom
and
Textile
Industry
Directorate)
Subordinate Service Rules, 1992; Direct
Recruitment (4th Amendment) Rules, 2014:
Rule
5(3)(A);
U.P.
Public
Service
Commission
Rules,
2002;
U.P.
Direct
Recruitment to Group 'C' Posts (Method and
Procedure) Rules, 2015: Rule 8(1); U.P.
Rules of Business, 1975 - The question for
consideration before this Court is that
whether the rules as amended in the year
2014, or Rules of 2015 notified after the
formation of the Commission by the Act of
2014 would be applicable. (Para 24)

Once the Commission was established, it was
bound to follow the rules and regulations so
framed under the act and to do away with the
earlier procedure prescribed under the various
rules and regulations. Selection has to be made
according to the rules applicable at the time of
advertisement and not subsequently, but the
present case is slightly different. The Rules of
2014 were not amended or aid of any other
rules
and
regulations
were
taken
into
consideration, but after the Rules of 2014 were
amended and notified on 29.01.2014, the U.P.
Act No. 20 of 2014 came into force and gazette
notification was made on 04.12.2014, pursuant
to which Rules of 2015 were made which came
into operation. (Para 31)

The Commission after advertisement proceeded
to make selection on basis of interview after
the notification of Rules of 2015 in the month
of June 2015. If the interview was held and
select list was prepared before the date of
notification of Rules of 2015 i.e. 11.05.2015
then Rule 5 (3) (A) of Rules of 2014 would
have been applicable and not Rules of 2015.
(Para 32)

B. Rule 8 (1) of the Rules of 2015 -
Approval of the State Government while
conducting and completing the selection
proceedings - State Government has power
to amend or modify the said rules and any such
amendment or modification is binding on the
Commission.
Therefore,
prior
to
making
selection, Commission was not required to send
for approval to the State Government. (Para
34)
1894 INDIAN LAW REPORTS ALLAHABAD SERIES
C. Entire selection process cannot be
vitiated unless it was impossible to
distinguish the case of tainted from nontainted one - It is clear from the facts that 47
candidates, having discrepancies in the form
filled up by them, are easily identifiable and
can be segregated from the list of 152 selected
candidates. Thus, the entire selection process
cannot be set- aside in one go. (Para 35 & 37)

Writ Petitions allowed. (E-4)

Precedent followed: -

## Text

1 All. Ravi Kant Tiwari Vs. State of U.P. & Ors.
1893
Executive or Legislative or Judicial for
public benefit. It cannot be said that the
public in general is interested and nonobservance
of
the
obligations
of
employment of respondent no.3 as a Chief
Medical Superintendent, in any event,
shall effect the interest of public at large;
and even if it would affect, the same shall
be too remote so as to make the office of
the Chief Medical Superintendent a 'Public
Office'.

17. Taking into consideration the
aforesaid
discussion,
the
preliminary
objection as raised by Sri Sanjay Bhasin,
learned Senior Advocate is upheld and the
writ petition is accordingly dismissed.
----------
(2020)1ILR 1892

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ-A No. 49709 of 2017
Connected With

Writ-A No. 48501 of 2017
With Writ-A No. 55657 of 2017
With Writ-A No. 5259 of 2018
With Writ-A No. 53240 of 2017

Nitin Pandey & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare, Sri Siddharth Khare

Counsel for the Respondents:
C.S.C., Sri Kailash Singh Kushwaha, Sri
Prabhakar Awasthi

A. Service - Appointment/Recruitment -
U.P.
Subordinate
Service
Selection
Commission Act, 2014: Section 2, 15(2), 17,
18; U.P. Industry Department (Handloom
and
Textile
Industry
Directorate)
Subordinate Service Rules, 1992; Direct
Recruitment (4th Amendment) Rules, 2014:
Rule
5(3)(A);
U.P.
Public
Service
Commission
Rules,
2002;
U.P.
Direct
Recruitment to Group 'C' Posts (Method and
Procedure) Rules, 2015: Rule 8(1); U.P.
Rules of Business, 1975 - The question for
consideration before this Court is that
whether the rules as amended in the year
2014, or Rules of 2015 notified after the
formation of the Commission by the Act of
2014 would be applicable. (Para 24)

Once the Commission was established, it was
bound to follow the rules and regulations so
framed under the act and to do away with the
earlier procedure prescribed under the various
rules and regulations. Selection has to be made
according to the rules applicable at the time of
advertisement and not subsequently, but the
present case is slightly different. The Rules of
2014 were not amended or aid of any other
rules
and
regulations
were
taken
into
consideration, but after the Rules of 2014 were
amended and notified on 29.01.2014, the U.P.
Act No. 20 of 2014 came into force and gazette
notification was made on 04.12.2014, pursuant
to which Rules of 2015 were made which came
into operation. (Para 31)

The Commission after advertisement proceeded
to make selection on basis of interview after
the notification of Rules of 2015 in the month
of June 2015. If the interview was held and
select list was prepared before the date of
notification of Rules of 2015 i.e. 11.05.2015
then Rule 5 (3) (A) of Rules of 2014 would
have been applicable and not Rules of 2015.
(Para 32)

B. Rule 8 (1) of the Rules of 2015 -
Approval of the State Government while
conducting and completing the selection
proceedings - State Government has power
to amend or modify the said rules and any such
amendment or modification is binding on the
Commission.
Therefore,
prior
to
making
selection, Commission was not required to send
for approval to the State Government. (Para
34)
1894 INDIAN LAW REPORTS ALLAHABAD SERIES
C. Entire selection process cannot be
vitiated unless it was impossible to
distinguish the case of tainted from nontainted one - It is clear from the facts that 47
candidates, having discrepancies in the form
filled up by them, are easily identifiable and
can be segregated from the list of 152 selected
candidates. Thus, the entire selection process
cannot be set- aside in one go. (Para 35 & 37)

Writ Petitions allowed. (E-4)

Precedent followed: -

1.
Union
of
India
Vs.
Rajesh
P.U.
Puthuvainikathu, (2003) 7 SCC 285 (Para 14 &
35)

2. Inderpreet Singh Kahlon Vs. State of Punjab
and others, (2006) 11 SCC 356 (Para 14 & 35)

3. Jogendra Pal and others Vs. State of Punjab
and others, (2014) 6 SCC 644 (Para 14, 35 &
36)

4. Ajeet Singh Patel and others Vs. State of
U.P. and others, Writ -A No. 37143 of 2017
(Para 14 & 35)

5. Sonia Vs. Oriental Insurance Company
Limited, (2007) 10 SCC 627 (Para 20 & 26)

Petition
challenges
order
dated
28.09.2017, passed by State respondents
cancelling the entire selection process.

(Delivered by Hon'ble Rohit Ranjan
Agarwal,J.)

1. All these five connected writ
petitions have been filed challenging the
order dated 28.09.2017 passed by the State
respondents whereby cancelling the entire
selection process made pursuant to the
advertisement dated 22.01.2015.

2. To appreciate the controversy in
question, it is necessary to advert to the
facts of the case, in brief, which are as
under;

Facts

3.

U.P.
Subordinate
Service
Selection
Commission
Lucknow
(hereinafter
referred
to
as
the
''Commission') constituted under the U.P.
Subordinate
Service
Selection
Commission
Act,
2014,
issued
an
advertisement published on 22.01.2015
inviting applications for filling up 156
posts of group ''C' which included post of
Textile Inspector, Power Loom Inspector,
Industrial
Supervisor/Technical
Supervisor-cum-Accountant,
Viewer
Textile
and
Examiner
Textile
in
Hathkargha
Evam
Vastra
Udyog
department of the State of U.P. This
advertisement
was
issued
on
the
requisition sent by the Handloom and
Textile Directorate on 07.01.2015 to the
Commission.

4. Petitioners, in Writ Petition No. 49709
of 2017, applied pursuant to the said
advertisement. According to the averment
made in the writ petition petitioner nos. 1 to 16
applied for post of Textile Inspector, petitioner
nos. 17 to 34 applied for the post of Power
Loom Inspector, petitioner nos. 35 to 49
applied for the post of Industrial/Technical
Supervisor, petitioner nos. 50 to 66 applied for
the
post
of
Supervisor-cum-Accountant,
petitioner nos. 67 to to 79 applied for the post
of Viewer Textile, petitioner nos. 80 and 81
applied for the post of Master Weaver and
petitioner no. 82 applied for the post of
Examiner Textile. These petitioners alongwith
the petitioners of other connected matters were
called for interview on different dates in the
month of June 2015. Post interview a select list
was published by the Commission on different
dates as given below

(i)Select list for the post of
Textile
Inspector
was
published
on
13.06.2015.
1 All. Nitin Pandey & Ors. Vs. State of U.P. & Ors.
1895

(ii)Select list for the post of
Power Loom Inspector was published on
08.06.2015.

(iii)Select list for the post of
Industrial Supervisor/Technical Supervisor
was published on 23.06.2015.

(iv)Select list for the post of
Supervisor-cum-Accountant was published
on 09.07.2015.

(v)Select list for the post of
Viewer
Textile
was
published
on
10.07.2015.

(vi)Select list for the post of
Master
Weaver
was
published
on
25.05.2015.

(vii)Select list for the post of
Examiner Textile was published on
26.05.2015.

5.

The
Commission
thereof
forwarded each of the select list for
different categories to the Hathkargha
Evam Vastra Udyog department. As stated
in paragraph 9 of the Writ Petition No.
49709 of 2017, the result, so published,
included the names of the petitioners
selected for various categories. It was for
the first time on 18.03.2016 that the
respondent no. 2 referred the matter to the
State Government regarding selection
which was challenged before this Court
and the Lucknow Bench. On 25.04.2016
the
State
Government
directed
the
respondent no. 2 to issue appointment
letters to 152 candidates with regard to
whom proceedings for verification of
documents had been completed subject to
the decision of this Court and the
Lucknow Bench.

6. As no appointment letters were
issued, some of the selected candidates
Mohd.
Mustafa
Ansari
and
others
preferred Writ Petition No. 23905 of 2016
before this Court, and on 24.05.2016 this
Court directed the respondent no. 2 to
comply with the order of the State
Government within three weeks. Copy of
the order dated 24.05.2016 has been
brought on record as Annexure No. 13 to
the writ petition. Similarly, some other
selected candidates filed another writ
petition being Writ Petition No. 33177 of
2016 (Krishna Kumar Bharti and others
Vs. State of U.P. and others), this Court
relying upon the earlier decision of this
Court dated 24.05.2016, on 21.07.2016
directed the second respondent to comply
the orders of the State Government. This
order has also been brought on record as
Annexure No. 14 to the writ petition.

7. Respondent no. 2 on 06.05.2016
intimated the State Government regarding
some
complaints
received
and
also
apprised the Government of the fact that
Direct Recruitment (4th Amendment)
Rules, 2014 envisages for holding of
written examination, but the Commission
proceeded for selection on basis of
interview conducted by giving a go by to
the written examination. On the same date,
respondent
no.
2
also
sent
a
communication to the Commission making
certain queries. Further, respondent no. 2
on 07.06.2016 sought guidance of the
State Government regarding orders of this
Court
dated
24.05.2016
and
the
irregularities
made
in
the
selection
proceedings. The State Government on
20.06.2016 apprised that on basis of
complaint received decision would be
taken
in
consultation
with
the
Administrative Department, Hathkargha
Evam
Vastra
Udyog
Department,
Commission and Law Department of the
State. From the pleadings, it transpires that
several meetings and consultation of
various agencies of the State Government
was held and different opinions were
1896 INDIAN LAW REPORTS ALLAHABAD SERIES
received, such as opinion of the Personnel
Department, Commission and the Law
Department. It was on 28.09.2017 that the
State Government proceeded to cancel the
selection of 152 candidates and also
recalled its earlier order dated 25.04.2016.

8. The order impugned dated
28.09.2017 found following discrepancies
in the selection made by the Commission,
which are as under;

(i)The application forms of 31
candidates did not specify the required
experience.

(ii)The application form with
regard to one candidate did not specify the
employment nor enclosed any experience
certificate.

(iii)The experience certificate of
six candidates was found to be suspicious.

(iv)In the experience certificate
of one candidate as against the required
experience of five years the specified
experience was for a period of four years,
two months and 30 days.

(v)Applications of six candidates
instead of specifying the experience
specified the training.

(vi)One application did not even
bear the signature of the candidate.

(vii)The experience certificate of
two candidates had been found to be
incorrect.

(viii)Four
candidates
showed
their experience of a period during which
they
were
pursuing
educational
qualifications.

(ix)The select list did not comply
with the requirement of horizontal/vertical
reservation.

(x)There
existed
serious
procedural irregularities with regard to 47
out of 150 selected candidates, which
vitiated the entire selection.

(xi)The selection did not comply
with the procedure as amended in the year
2014; U.P. Subordinate Services Selection
Commission Act, 2014 read with U.P.
Direct Recruitment Against Group-C Posts
(Method and Procedural) Rules, 2015.

Law as applicable:

9. Before proceedings further it
would be necessary to have a glance of the
relevant Act, Rules and Regulations
applicable at the relevant point of time for
the selection and appointment on post of
Group ''C'.

(i)U.P.
Industry
Department
(Handloom
and
Textile
Industry
Directorate) Subordinate Service Rules,
1992 (hereinafter referred to as the ''Rules
of 1992') in which only interview was
mode prescribed for selection to the
abovementioned posts.

(ii)Direct Recruitment for Group
"C" Posts (Outside the purview of the U.P.
Public Service Commission Rules, 2002
(hereinafter referred to as the ''Rules of
2002') issued vide notification dated
29.06.2002. The said Rules were amended
by First Amendment Rules, 2003 vide
notification dated 21.06.2003.

(iii)U.P. Procedure for Direct
Recruitment for Group "C" Posts (Fourth
Amendment) Rules, 2014 (hereinafter
referred to as the "Rules of 2014) were in
existence at the time of advertisement.
These amended Rules of 2014 provided in
Rule 5 (3) (A) for direct selection on
Group ''C' post to be made on basis of
written examination and interview both.

(iv)U.P. Subordinate Services
Selection
Commission
Act,
2014
(hereinafter referred to as the ''Act of
2014') came into force on 04.12.2014.

(v)Vide
notification
dated
11.05.2015 U.P. Direct Recruitment to
1 All. Nitin Pandey & Ors. Vs. State of U.P. & Ors.
1897
Group "C" Posts (Method and Procedure)
Rules, 2015 (hereinafter referred to as the
''Rules of 2015') were notified.

(vi)U.P. Rules of Business, 1975

Submissions

10. Sri Ashok Khare, learned Senior
Counsel, assisted by Sri Siddharth Khare,
learned
counsel
for
the
petitioners,
submitted that request sent by the
Hathkargha
Evam
Vastra
Udyog
department
to
the
Commission
for
selection on Group 'C' posts was on basis
of Rules of 1992 which only provided for
interview. He further submitted that the
State Government notified the Rules of
2002 on 29.06.2002 which was amended
for the first time on 21.06.2003 and
subsequently
fourth
amendment
was
notified on 29.01.2014 which came to be
known as Rules of 2014, provided for both
written examination and interview.

11. He further contended that the
Commission was constituted pursuant to
the Act of 2014 and Section 17 provides
that
the
concerned
department
will
intimate the vacancy to the Commission
and further the Commission under Section
18 after receiving the requisition for the
vacancies will as soon as possible start
procedure for selection either through
written examination or interview or both.

12. Sri Khare, learned Senior
Counsel, pointed out that once the
Commission was established it was in its
wisdom in pursuance to Section 18 either
to hold written examination or make
selection on basis of interview or for both.
He further contended that Section 15 (2) of
the Act of 2014 further provide for rules
and regulations to be framed in regard to
appointment, and State Government on
11.05.2015 notified the Rules of 2015.
According to Rule 8 of Rules of 2015
direct recruitment can be made either by
written examination or interview.

13. Thus, in the present case, though
the
requisition
was
made
by
the
department concerned on 07.01.2015 and
advertisement
was
published
on
21.01.2015,
Rules
of
2014
were
applicable, but at the time when interview
was held in month of June 2015, Rules of
2015 were already notified by the State
Government, which only required that
direct recruitment can be made either by
written examination or on basis of
interview, thus, the stand of the State
Government that the selection process was
faulted on the count that Rule 5 (3) (A) of
Rules of 2014 were not followed and
entire selection process stood vitiated as
only
interview
was
held
by
the
Commission, cannot be sustained.

14. Sri Khare, learned Senior
Counsel, further submitted that the order
impugned dated 28.09.2017 is in teeth of
the law laid down by the Apex Court and
this Court, wherein it is found that certain
candidates had not fulfilled the eligibility
criteria the entire selection will not go and
only selection of those candidates who
have not complied the requirement of the
advertisement, their candidature would be
rejected. Reliance has been placed upon
the decision of Apex Court in the case of
Union
of
India
Vs.
Rajesh
P.U.
Puthuvainikathu, 2003 (7) SCC 285,
Inderpreet Singh Kahlon Vs. State of
Punjab and others, 2006 (11) SCC 356
and Jogendra Pal and others Vs. State of
Punjab and others, 2014 (6) SCC 644.
Reliance has also been placed upon
decision of Division Bench of this Court,
writ petitions being Writ-A No. 37143 of
2017 (Ajeet Singh Patel and others Vs.
1898 INDIAN LAW REPORTS ALLAHABAD SERIES
State of U.P. and others) decided on
28.11.2017.

15. The State contested the matter by
filing counter affidavit in which it is stated
that the advertisement published on
21.01.2015 categorically mentioned the
fact that if application form was not on
prescribed format, or was incomplete then
the application shall be cancelled. It has
been specifically mentioned in paragraph
nos. 6 to 9 of the counter affidavit, filed in
Writ Petition No. 49709 of 2017, that the
form filled up by 31 candidates had not
made proper disclosure in column no. 10,
and their application form being defective
was liable to be rejected. It has also been
stated that direct recruitment should have
been made following provisions of Rules
and Regulations framed under Section 15
(2) of U.P. Act No. 20 of 2014 and not
under the provisions of Rules of 1992. It is
further stated that pursuant to Section 15
(2) of the Act of 2014, Rules of 2015 had
been framed and notified on 11.05.2015,
and the Commission has not complied the
provisions of Rule 8 (1) of Rules of 2015,
which provided for approval of selection
process from the Government while
conducting
and
completing
selection
proceedings. It is also mentioned that the
Commission had intimated the respondent
no. 2 on 21.01.2017 that application forms
of 47 selected candidates did not fulfill the
essential
educational
qualification/experience
and
other
necessary formalities as required in terms
of the advertisement. In paragraph 13 it
has also been averred that in a meeting
presided by the Principal Secretary on
09.09.2016 it was decided that since the
Commission had not complied with
provisions of Rule 8 (1) of the Rules of
2015 and there were certain irregularities
in the selection, opinion was sought from
the Department of Personnel as well as
Law.

16. The State has also taken stand in
their counter affidavit that provisions of
Section 18 of the Act of 2014 provides that
Commission after intimation of vacancies
under Section 17 either hold examination
or interview or both, and prepare a list of
the candidates, who are found suitable.
Further procedure for selection has been
provided in Rule 8 (1), which required
prior approval of the Government.

17. It has also been stated by the
State that request was sent by the
concerned department to the Commission
on 07.01.2015 and Rules of 2014 was in
existence, and selection of Group 'C' post
was required to be made on basis of
written examination and interview both,
and Rules of 1992 was not applicable as
the same was forwarded alongwith the
request
by
the
department
to
the
Commission. Apart from relying upon
provisions of Sections 17 and 18 of the
Act of 2014, the State has also relied upon
the statement of object and reason for
promulgating the Act of 2014.

18. Sri Jagdish Singh Bundela,
learned Standing Counsel, appearing for
respondent nos. 1 to 3, has submitted that
the vacancies which were notified by way
of advertisement on 21.01.2015, at that
relevant point of time Rule 5 (3) (A) of
Rules of 2014 was in operation, which
required that both written examination for
40 marks and interview for 25 marks was
to be held, but the Commission proceeded
to hold interview only, which was against
the Rules of 2014. Learned Standing
Counsel invited the attention of the Court
to the various discrepancies in the
application forms filled up by number of
1 All. Nitin Pandey & Ors. Vs. State of U.P. & Ors.
1899
candidates, who found place in the select
list, as they failed to adhere to the requisite
requirement of the advertisement, which is
on record as Annexure No. 1 at page 45 of
the paper book, the note appended
categorically states that if the form was not
in conformity with the format of the
Commission or was inproperly filled or it
did not bear the signature of the candidate
at the right place, then the same could be
rejected in a cursory manner.

19. Learned counsel for the State tried
to impress upon the fact that 31 such
candidates whose form were scrutinized and
whose details have been furnished in
paragraph nos. 6 to 9 of the counter affidavit
was not in conformity with the advertisement
and were liable to be rejected. He further
pointed out that number of petitions are
pending before the Lucknow Bench of this
Court. Sri Bundela, further, stressed that the
Commission proceeded to hold the selection
process on basis of Rules of 1992 and Rules
of 2015 which provided only for interview
and not written examination, while Rule 5 (3)
(A) of Rules of 2014, were amended in the
year 2014, categorically provides for written
examination of 40 marks and interview of 25
marks, thus, giving go by to the procedure
laid down in the rules vitiated the entire
selection procedure.

20. Reliance has been placed on a
decision of the Apex Court in the case of
Sonia Vs. Oriental Insurance Company
Limited, 2007 (10) SCC 627, wherein the
Apex Court has held that the selection will
be governed and covered by rules
prevailing
on
the
date
of
which
applications were invited and not to the
subsequent rules or amendment.

He further submitted that in view of
Section 18 of the Act of 2014 the
Commission was not fully empowered to
act on its own and proceedure for selection
has been provided in Section 17 (1) and
(2) of the Act. Reliance has also been
placed upon the object and reason of
promulgating the Act of 2014.

21. Sri Prabhakar Awasthi, learned
counsel appearing for the Commission, has
submitted that the Commission was a
formal party and had acted only on basis
of the requisition so received by it and
after selection, so made, forwarded it to
the Government. Apart from it, no other
submissions were forwarded on behalf of
the Commission neither any counter
affidavit was filed.

Conclusion

22. I have heard learned counsel for
the parties and perused the material on
record.

23. The entire controversy hinges
around the applicability of Rules of 2014,
U.P. Act No. 2014 and the Rules of 2015.

24. The question for consideration
before this Court is that whether the rules
as amended in the year 2014, or Rules of
2015 notified after the formation of the
Commission by the Act of 2014 would be
applicable.

25. As it is not in dispute that a
requisition for the appointment of 156
candidates for Group ''C' posts were made
by Hathkargha Evam Vastra Udyog
department
to
the
Commission
on
07.01.2015. Acting on the request, the
Commission
proceeded
to
make
advertisement inviting applications from
eligible candidates on 21.01.2015. It is
also not in dispute that at this relevant
point of time the Rules of 2014 were in
operation
which
mandated
written
1900 INDIAN LAW REPORTS ALLAHABAD SERIES
examination as well as interview. The
advertisement did not provide for any
examination or interview. It appears that
as the Act of 2014 came into force on
04.12.2014, the Commission in exercise of
its power provided under Section 18 had
proceeded to make advertisement for
selection on Group ''C' posts. The State
Government thereafter framed the Rules of
2015 exercising power under Section 2 of
U.P. Act No. 20 of 2014 wherein in Rule 8
it
was
provided
that
Group
''C'
appointments can either be made by
written examination or by interview.

26. While Rules of 2015 were
notified on 11.05.2015 i.e. after the date of
advertisement, which was published on
21.01.2015. The moot question is whether
the Commission which was constituted
after coming of amended Rules of 2014 by
U.P. Act No. 20 of 2014 was to proceed in
accordance with the Rules of 2014 as
advertisement was made on 21.01.2015
while rules made pursuant to Act were
notified on 11.05.2015, in view of the
judgment of Apex Court in the case of
Sonia (supra), or the rules followed by the
Commission proceeding to make selection
on basis of interview, which were held in
the month of June 2015 subsequently to
the enforcement of the Rules of 2015.

27. It is no doubt true that at the time
of publication of advertisement Rules of
2014 which was amended twice was in
force, but it cannot be denied that the
concerned department had requested the
Commission for making selection on basis
of the Rules of 1992 which provided for
selection on basis of interview only. It is
also correct that the Rules of 2015 were
notified subsequent to the advertisement
which were in place before interview took
place.

28. The stand taken by the State is
two fold. Firstly, it is relying upon the
certain discrepancies in the form filled by
47 candidates and there being defect in
filling up column no. 10 on basis of which
the selection process has been set-aside.
The State has also taken a stand in its
counter affidavit that the Commission had
not complied with the Rule 8 (1) of the
Rules of 2015 by not taking prior approval
of the State Government while conducting
and completing the selection proceedings.
The State cannot, at the same time, blow
hot and cold by taking two stand, firstly
that Rule 5 (3) (A) of Rules of 2014
provided written examination of 40 marks
and interview of 25 marks and secondly
that the Rules of 2015 were not followed
as far as taking prior approval for selection
process. It has to stick to one ground
whether the Rules of 2014 are applicable
on the Commission or Rules of 2015 are
applicable.

29. From the reading of U.P. Act No.
20 of 2014, it is clear that once the
Commission was established pursuant to
the gazette notification, the Commission
proceeded for selection for Group ''C'
posts. It was required under Section 15 (2)
of the Act of 2014 to make selection in
view of rules and regulations framed
thereunder.

30. As the Rules of 2015 were
notified on 11.05.2015 the Commission
proceeded to make selection as per Rules
of 2015 which required for either written
examination or interview. Thus the action
of the Commission cannot faulted on the
count that it was to proceed on the basis of
Rules of 2014, specifically Rule 5 (3) (A)
which provided for written examination as
well as interview. The statement of object
and reason of promulgating the Act of
1 All. Nitin Pandey & Ors. Vs. State of U.P. & Ors.
1901
2014 also has relevance and same is
extracted here as under;

"It is necessary to select able,
worthy and hard working personnel for
appointment
to
certain
posts
in
administrative departments of the State. It
is also necessary to ensure the quality of
selection, its impartiality and transparency
in their selection. Though the institution of
Uttar Pradesh Public Service Commission
is present at Constitutional Level but
owing to increased pressure on its
working, difficulty is being realized
regarding selection on Group "C" posts.
In near past, selection on Group "C" post
was
being
done
under
the
direct
supervision of the State Government, but
Head of Department had to devote much
time for the above selections which is
severely affecting the Government works
as well as the works of public interest. Due
to all these reasons, it is quite necessary to
establish an independent Subordinate
Service Selection Commission consisting
of the Chairperson and Members similar
to that of the Uttar Pradesh Public Service
Commission for timely selection on certain
Group "C" posts. It has therefore, been
decided to make a law to provide for the
establishment of a Commission by the
name of the Uttar Pradesh Subordinate
Service Selection Commission for the
selection on certain Group "C" posts in
the State "

31. Thus, from reading the object, it
is clear that Commission has been
established for making selection of certain
Group "C" post in the State to select able,
worthy and hardworking persons in
administrative department of the State.
Once the Commission was established, it
was bound to follow the rules and
regulations so framed under the act while
making selection and to do away with the
earlier procedure prescribed under the
various rules and regulations. It is no
doubt true that selection has to be made
according to the rules applicable at the
time
of
advertisement
and
not
subsequently, but the present case is
slightly different, as in case in hand the
Rules of 2014 were not amended or aid of
any other rules and regulations were taken
into consideration, but after the Rules of
2014 were amended and notified on
29.01.2014, the U.P. Act No. 20 of 2014
came into force and gazette notification
was made on 04.12.2014, pursuant to
which Rules of 2015 were made which
came into operation.

32. Had the Commission held the
interview and prepared the select list
before the date of notification of Rules of
2015 i.e. 11.05.2015 then the argument of
the State could have been accepted to the
extent that Rule 5 (3) (A) of Rules of 2014
were applicable and not Rules of 2015, but
the
Commission
after
advertisement
proceeded to make selection on basis of
interview after the notification of Rules of
2015 in the month of June 2015. Thus,
relevant
rule
for
consideration
for
selection would be Rules of 2015 and not
the Rules of 2014.

33. The second argument of the State
to the extent that prior approval of the
State was not taken by the Commission in
view of Rule 8 (1) of Rules of 2015 is also
not founded on any strong ground, as plain
and simple reading of the rule suggests
that Commission while dealing with the
process of direct recruitment either on
basis of written examination or marks of
interview shall advert to the rules which
are from time to time approved by the
State Government.
1902 INDIAN LAW REPORTS ALLAHABAD SERIES

34. In the present case the rules were
already notified on 11.05.2015 and Rule 8
categorically provided that the procedure
for direct recruitment will either be held
on basis of written examination or marks
of interview. It is not in dispute that the
State Government has power to amend or
modify the said rules and any such
amendment or modification is binding on
the Commission. Thus, the argument of
the State cannot be accepted by any stretch
of imagination that prior to making
selection, Commission was required to
send for approval to the State Government.

35. As far as the argument made by
learned Senior Counsel appearing for the
petitioners that the entire selection process
did not stood vitiated on the ground that
there were certain discrepancies found by
the Commission in the form of certain
candidates and the entire selection could
not be held to be tainted, finds support
from the Division Bench judgment of this
Court in the case of Ajeet Singh Patel
and others (supra) as well as the law laid
down by the Apex Court in the case of
Rajesh P.U. Puthuvainikathu (supra)
wherein Apex Court held that there was no
justification to deny appointment to those
selected candidates whose selection was
not vitiated in any manner. In Jogendra
Pal and others (supra) Apex Court
considering its earlier judgment in the case
of Inderpreet Singh Kahlon (supra) held
that entire selection process cannot be
vitiated unless finding was arrived that it
was impossible to distinguish the case of
tainted from non-tainted one.

36. As in the present case, the order
impugned clearly mentions that out of 152
candidates selection of 47 candidates
suffers
from
serious
procedural
irregularities. In the counter affidavit in
paragraph nos. 6 to 9 candidate wise list
has been given stating the discrepancies in
their forms, so submitted, thus, the
respondent State functionaries are well
aware of the fact that who are tainted and
non-tainted candidates and thus by a
sweeping order the entire selection process
cannot be set-aside in one go, which is
against the mandate of Apex Court in the
case of Jogendra Pal and others (supra).

37. Considering the facts of the case and
keeping in mind the decisions of the Apex
Court and Division Bench of this Court, I am
of the view that the respondent State proceeded
to set-aside the entire selection process merely
on the ground that out of 152 selected
candidates, candidature of 47 candidates was
found to be not in accordance with the terms
and
conditions
as
mentioned
in
the
advertisement, and non-submission of the
requisite qualification by them in the form,
which cannot be the basis for cancelling the
entire selection, so made. As from the reading
of order impugned, it is clear that those 47
candidates are easily identifiable and can be
segregated from the list of 152 selected
candidates. Thus, the orders impugned are not
based on any sound and cogent reasons and
same are hereby quashed.

38. It is expected that the State
authorities shall issue necessary orders for the
rest of the selected candidates whose
candidature are in accordance with the law and
the earlier order of State Government dated
25.04.2016 being modified to the extent that
appointment order be issued to those validly
selected candidates excluding those whose
forms are not in proper format, as given in the
order impugned dated 28.09.2017.

39. All the writ petitions stand
allowed.
----------
1 All. Nitin Pandey & Ors. Vs. State of U.P. & Ors.
1903
(2020)1ILR 1902

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2019

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Writ-A No. 54270 of 2017

Ramakant ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prem Narayan Rai, Sri Bikash Kumar
Mishra, Sri Himanshu Kumar, Sri Jafar
Naiyar

Counsel for the Respondents:
A.S.G.I., Sri Rohan Gupta, Sri Shabha Jeet
Singh, Sri Shivam Shukla

A.
Challenging-impugned
orderaffirming-petitioner's dismissal-from the
post of bus conductor-on the groundobtaining appointment on the basis of
forged
caste
certificate-wilfully
&
deliberately-suppressed-real
social
status-caste
certificate-the
very
foundation of appointment-declared to be
false-appointment rendered-void or nonest.

B. Held, once the social status certificate
is declared false by the competent
authority, the appointment would render
void or non est. In that event, the
employer would not be required to
initiate regular departmental proceedings
under the Rules for the reason that the
certificate would bind the disciplinary
authority.
In
such
an
event,
the
delinquent employee can be removed
from service upon a show cause notice.
The disciplinary authority would have no
occasion
to
return
a
finding
in
a
proceeding
to
a
charge.
The
very
foundation on which the services of the
delinquent employee was based upon
being
demolished,
the
consequence
would
be
automatic
removal
from
service. In the instant case, admittedly,
the District Collector being the competent
authority upon verification had certified
that the petitioner does not belong to the
SC
community,
consequently,
the
appointment of the petitioner would
render it void or non est. Even then IIT
Kanpur got conducted a full-fledged
departmental enquiry for imposition of
major penalty in accordance with the
Rules.

Writ Petition dismissed. (E-8)

List of cases cited: -

1.
Kumari
Madhuri
Patil
v.
Additional
Commissioner, Tribal Development

2. R. Vishwanath Pillai v. State of Kerala

(Delivered by Hon'ble Suneet Kumar,J.)

1. Heard Sri Jafar Naiyar, learned
Senior Counsel assisted by Sri Prem
Narayan Rai and Sri Himanshu Kumar,
learned counsels for the petitioner and Sri
Rohan Gupta, learned counsel assisted by
Sri Shivam Shukla, learned counsels for
the respondent.

2. Petitioner, by the instant writ
petition is assailing the order dated 6
November 2017, passed by the second
respondent,
Chairman,
Board
of
Governors, Indian Institute of Technology,
Kanpur1, District Kanpur Nagar, affirming
the order of dismissal dated 20 April 2017,
passed by the third respondent, Director,
IIT Kanpur, District Kanpur Nagar.

3. The facts giving rise to the instant
petition is that petitioner applied for the
post of bus conductor pursuant to
Advertisement No. 24 of 1982, under the
Scheduled Caste (SC) category on the