# Padmakar Dixit v. State of U.P. & Ors

- **Citation:** (2025) 1 ILRA 402
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-02
- **Case number:** Special Appeal No. 432 of 2024
- **Bench:** Siddhartha Varma, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/padmakar-dixit-v-state-of-u-p-ors-52866
- **Pages:** 6

## Headnote

A. Civil Law - Reservation in Recruitment
of Assistant Teachers - Deletion of Carry
Forward Rule - Validity of Appointment -
Uttar Pradesh Public Service (Reservation
for Physically Handicapped, Dependents of
Freedom Fighters and Ex-Servicemen) Act,
1993 - Section 3(5) deleted by U.P. Act
No. 12 of 2016 - By U.P. Act No. 12 of
2016 - sub-section (5) of Section 3 of the
said Act, which provided for carrying
forward of an unfilled reserved vacancy to
the next year, had been deleted
-
Reserved category vacancy could not be
carried forward to the next year - 'Rule of
carry forward' in respect of reservation of
posts in favour of physically handicapped
candidates, being no longer applicable in
view of the omission of sub-section (5) of
Section 3 of the Act, 1993, in terms of the
amending Act of 2016, the filling up of the
said posts by general category candidates,
cannot be said to suffer from any legal
infirmity. (Para 11)
B. Recruitment of Assistant Teachers - In
the
instnat
case
the
advertisement,
provided that in the first round of
1 All. Padmakar Dixit Vs. State of U.P. & Ors.
403
counselling, a candidate could apply for
being appointed as Assistant Teacher
only in the district from where he/she
had
done
his/her
BTC
Training
Certificate Course. It was also provided
that in the second round of counselling,
a
candidate
could
apply
for
the
remaining unfilled vacancies - Appellant
had passed his BTC Training Certificate
Course
from
district
Varanasi
and,
therefore, he applied in district Varanasi.
He was unsuccessful in the first round of
counselling. There was an option that in
the
second
round
of
counselling,
application may be made for any district
of the State. The appellant opted for
district Mirzapur. Appellant appeared in
the
second
round
of
counselling.
Candidates, who had been selected in
the first and the second round of
counselling, both were shown in the
composite list and the appellant's name
appeared at serial no. 1 in the combined
select
list.
Appellant
was
issued
appointment letter and in pursuance
thereof, he joined on 06.09.2016. On
18.11.2021, a show cause notice was
issued to the appellant, stating therein
that
after
completion
of
the
first
counselling,
17
posts
of
Assistant
Teacher remained vacant in district
Mirzapur, which included 3 posts under
vertical reservation of Scheduled Castes
and
14
posts
under
horizontal
reservation out of which, 2 posts were
reserved
for
Physically
Handicapped
candidates
suffering
from
visual
disability
and
2
posts
were
for
candidates
suffering
from
hearing
disability,
10
posts
were
for
Exservicemen. In the show cause notice, it
was stated that since there was no post
for General Category candidate, the
appellant was wrongly appointed in the
second
round
of
counselling.
Appointment of the appellant was held
to be invalid. Single Judge dismissed the
writ petition. Held: The posts which
were not filled in the first round of
counselling could not be carried forward
to the next process of selection in view
of omission of sub-section (5) of Section
3 of the Act, 1993 and, therefore, the
vacant posts, by implication, could have
been filled in by general candidates.
Filling up of the posts by general
category candidates, cannot be said to
suffer from any legal infirmity. (Para 11)
Allowed. (E-5)

## Text

402 INDIAN LAW REPORTS ALLAHABAD SERIES
possess the essential training qualification
for being appointed on the said post, a fact
which, at no stage, was disputed by the
petitioner.

31. Having regard to the aforesaid
discussion, we are of the view that the
order dated 28.3.2019, cancelling the
appointment of the petitioner as Assistant
Teacher cannot be faulted on both counts,
i.e, (i) the petitioner, having admittedly not
possessed
the
requisite
training
qualification as prescribed under the
relevant rules for being considered for
appointment on the post of Assistant
Teacher; and (ii) the petitioner, having
earlier been appointed on compassionate
grounds
on
the
post
of
Chaukidar/Chaprasi, the said right to claim
appointment on compassionate ground
stood exhausted and it would not open to
the petitioner to seek appointment to the
post of Assistant Teacher again on
compassionate grounds.

32. The fact that the petitioner had
worked for a fairly long period, has been
duly taken note of by the learned Single
Judge and accordingly while disposing of
the writ petition without interfering in the
order impugned, it has been provided that
the payments made to the petitioner
towards salary and other allowances would
not be recovered.

33. The judgment of the learned Single
Judge, is based on an appreciation of the
facts and the material on record and, after
recording cogent reasons. We are not
persuaded to take a different view in the
matter.

34. The appeal is devoid of merit and
is, accordingly, dismissed.
----------
(2025) 1 ILRA 402
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2025

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 432 of 2024

Padmakar Dixit ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Siddharth Khare, Sr. Advocate

Counsel for the Respondents:
C.S.C., Kushmondeya Shahi, Sunil Kumar
Dubey

A. Civil Law - Reservation in Recruitment
of Assistant Teachers - Deletion of Carry
Forward Rule - Validity of Appointment -
Uttar Pradesh Public Service (Reservation
for Physically Handicapped, Dependents of
Freedom Fighters and Ex-Servicemen) Act,
1993 - Section 3(5) deleted by U.P. Act
No. 12 of 2016 - By U.P. Act No. 12 of
2016 - sub-section (5) of Section 3 of the
said Act, which provided for carrying
forward of an unfilled reserved vacancy to
the next year, had been deleted
-
Reserved category vacancy could not be
carried forward to the next year - 'Rule of
carry forward' in respect of reservation of
posts in favour of physically handicapped
candidates, being no longer applicable in
view of the omission of sub-section (5) of
Section 3 of the Act, 1993, in terms of the
amending Act of 2016, the filling up of the
said posts by general category candidates,
cannot be said to suffer from any legal
infirmity. (Para 11)
B. Recruitment of Assistant Teachers - In
the
instnat
case
the
advertisement,
provided that in the first round of
1 All. Padmakar Dixit Vs. State of U.P. & Ors.
403
counselling, a candidate could apply for
being appointed as Assistant Teacher
only in the district from where he/she
had
done
his/her
BTC
Training
Certificate Course. It was also provided
that in the second round of counselling,
a
candidate
could
apply
for
the
remaining unfilled vacancies - Appellant
had passed his BTC Training Certificate
Course
from
district
Varanasi
and,
therefore, he applied in district Varanasi.
He was unsuccessful in the first round of
counselling. There was an option that in
the
second
round
of
counselling,
application may be made for any district
of the State. The appellant opted for
district Mirzapur. Appellant appeared in
the
second
round
of
counselling.
Candidates, who had been selected in
the first and the second round of
counselling, both were shown in the
composite list and the appellant's name
appeared at serial no. 1 in the combined
select
list.
Appellant
was
issued
appointment letter and in pursuance
thereof, he joined on 06.09.2016. On
18.11.2021, a show cause notice was
issued to the appellant, stating therein
that
after
completion
of
the
first
counselling,
17
posts
of
Assistant
Teacher remained vacant in district
Mirzapur, which included 3 posts under
vertical reservation of Scheduled Castes
and
14
posts
under
horizontal
reservation out of which, 2 posts were
reserved
for
Physically
Handicapped
candidates
suffering
from
visual
disability
and
2
posts
were
for
candidates
suffering
from
hearing
disability,
10
posts
were
for
Exservicemen. In the show cause notice, it
was stated that since there was no post
for General Category candidate, the
appellant was wrongly appointed in the
second
round
of
counselling.
Appointment of the appellant was held
to be invalid. Single Judge dismissed the
writ petition. Held: The posts which
were not filled in the first round of
counselling could not be carried forward
to the next process of selection in view
of omission of sub-section (5) of Section
3 of the Act, 1993 and, therefore, the
vacant posts, by implication, could have
been filled in by general candidates.
Filling up of the posts by general
category candidates, cannot be said to
suffer from any legal infirmity. (Para 11)
Allowed. (E-5)
(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. Heard Sri Ashok Khare, learned
Senior Counsel assisted by Sri Siddharth
Khare, learned counsel for the petitionerappellant and Sri Kushmondeya Shahi,
learned counsel appearing for the Board of
Basic Education.

2. Instant special appeal has been filed
challenging the judgment and order dated
1.3.2024 passed by a learned Single Judge
of this Court in Writ-A No.695 of 2023
(Padmakar Dixit vs. State of UP & Others),
whereby the writ petition filed by the
petitioner-appellant has been dismissed.

3. By a notification dated 16.6.2016,
the
State
Government
notified
a
recruitment of Assistant Teachers in the
State of Uttar Pradesh to all the Basic
Shiksha Parishad Schools and to that effect,
an advertisement was also issued on
27.6.2016. Applications were invited for
recruitment in all the districts of Uttar
Pradesh between 30.6.2016 to 15.7.2016.
In the advertisement, it was provided that
in the first round of counselling, a
candidate could apply for being appointed
as Assistant Teacher only in the district
from where he/she had done his/her BTC
Training Certificate Course. However, it
was provided that in the second round of
counselling, a candidate could apply for the
remaining unfilled vacancies in any district
of Uttar Pradesh. The first round of
404 INDIAN LAW REPORTS ALLAHABAD SERIES
counselling was held on 16.8.2016 and
17.8.2016. The appellant had passed his
BTC Training Certificate Course from
district Varanasi and, therefore, he applied
for the vacancies as were there in district
Varanasi. However, he was unsuccessful in
the
first
round
of
counselling
and,
therefore, he applied for the second round
of counselling and since there was an
option that in the second round of
counselling, application may be made for
any district of the State, the appellant opted
for district Mirzapur and made that district
as his first preference. The counselling,
which was conducted for district Mirzapur,
was so done on 24.8.2016 and when the
merit list was prepared, the appellant was
placed at serial no.1 of the merit list.
Thereafter, the appellant was issued an
appointment letter on 27.8.2016 by the
Basic Shiksha Adhikari, Mirzapur and in
pursuance thereof, he joined on 6.9.2016.
However, on 18.11.2021, a show cause
notice was issued to the appellant, stating
therein that after completion of the first
counselling, 17 posts of Assistant Teacher
remained vacant in district Mirzapur, which
included 3 posts under vertical reservation
of Scheduled Castes and 14 posts under
Horizontal Reservation out of which, 2
posts
were
reserved
for
Physically
Handicapped candidates suffering from
visual disability and 2 posts were for
candidates
suffering
from
hearing
disability,
10
posts
were
for
Exservicemen. In the show cause notice, it
was stated that since there was no post for
General Category candidate, the appellant
was wrongly appointed in the second round
of counselling. The appellant, replied to the
show cause notice and thereafter, the Basic
Shiksha Adhikari, Mirzapur, on 10.3.2022,
passed an order for stopping the payment of
salary to the appellant. This order was
challenged by the appellant by filing of a
writ petition, being Writ Petition No.11964
of 2022 (Padmakar Dixit vs. State of UP &
Others).

4. However, when the appointment of
the appellant itself was held to be invalid
by an order dated 2.12.2022, he challenged
the same by means of a writ petition, being
Writ-A No.695 of 2023. When the said writ
petition was dismissed by the order
impugned dated 1.3.2024 of a learned
Single Judge, the instant appeal was filed.

5. Learned counsel for the appellant
assailed the order of the learned Single
Judge, by submitting that the inquiry itself
was
a
belated
inquiry,
it
having
commenced after a period of six years of
the initial appointment of the appellant. It
has further been argued that the appellant
was
a
simple
candidate,
who
had
participated in the second round of
counselling and was unaware of the fact
that the post on which he was being
appointed was reserved for Visually
Handicapped persons. Learned counsel for
the appellant has also submitted that the
termination order was not preceded by any
departmental inquiry as was prescribed
under the UP Basic Education (Staff)
Service
Rules,
1973
read
with
UP
Government
Servant
(Punishment
&
Appeal) Rules, 1999. It has been further
stated by learned counsel for the appellant
that the objection which was taken in the
impugned order, which was challenged in
the writ petition, that the petitioner was
appointed against a vacancy which stood
covered under Horizontal Reservation for
Physically Handicapped was absolutely
misplaced.
Learned
counsel
for
the
appellant has stated that even if the post on
which the appellant was appointed was
reserved
for
the
purposes
of
accommodating a physically handicapped
1 All. Padmakar Dixit Vs. State of U.P. & Ors.
405
candidate, which was left unfilled in the
first round of counselling, in that case also,
it became a vacancy which could be filled
by a general category candidate, as the
relevant Act with regard to reservation for
Physically Handicapped, Dependents of
Freedom Fighters and Ex-Servicemen, i.e.
the
Uttar
Pradesh
Public
Service
(Reservation for Physically Handicapped,
Dependents of Freedom Fighters and ExServicemen) Act, 1993 had undergone an
amendment and by the amendment, subsection (5) of Section 3 of the said Act,
which provided for carrying forward of an
unfilled reserved vacancy to the next year,
had been deleted by UP Act No.12 of 2016
and thus, conscious of the fact that the
reserved category vacancy could not be
carried forward to the next year, in the
second round of counselling, the vacancy
was filled by a general category candidate.

6. Learned counsel for the appellant
still further assailed the order of the learned
Single Judge, by submitting that the writ
petition was dismissed on a wrong premise
that the appellant could not bring on record
any material in support of the charges
levelled against him. Learned counsel has
submitted that the appellant was expected
to prove the fact that he had appeared in the
second round of counselling. This evidence
could not have been brought by the
appellant. However, the fact that the
appellant had appeared in the second round
of counselling was clear from RA-1, which
was filed to the Rejoinder Affidavit to the
writ
petition.
Whether
the
appellant
appeared in the first round or in the second
round of counselling, could have been
clarified only from the records of the
respondents in the case. During the time,
when the respondents were inquiring into
the case of the appellant, an inquiry report
was submitted by the Regional Assistant
Director of Education (Basic), Mirzapur
before
the
Director
General,
School
Education of Uttar Pradesh on 23.12.2021,
and that was brought on record by means of
Annexure-8 to the Supplementary Counter
Affidavit filed on behalf of respondent
nos.2, 4, 5 and 6. Following paragraphs
were relevant according to learned counsel
for the appellant, for the purpose of this
case and, since he relied upon the same,
they are reproduced as under:

"ftyk csfld f'k{kk vf/kdkjh ehjtkiqj ls
izkIr vufUre p;fur lwph ds vuqlkj izFke pj.k ,oa
f}rh; pj.k ds vH;fFkZ;ksa dh ,d vufUre p;u lwph
rS;kj dh x;h gS tcfd vyx&vyx gksuk pkfg, Fkk
D;ksafd izFke ojh;rk tuin ds vH;fFkZ;ksa dh esfjV
vyx ,oa f}rh; ojh;rk ds vH;fFkZ;ksa dh esfjV vyx
gksxh] fdUrq ftyk csfld f'k{kk vf/kdkjh }kjk ,d gh
lwph rS;kj dh x;h] tks fd fu;ekuqlkj ugha gSA

izFke pj.k ds dkmfUlfyax ds vH;fFkZ;ksa
dk mifLFkfr i= ftyk csfld f'k{kk vf/kdkjh
ehjtkiqj }kjk miyC/k djk;k x;k gS fdUrq f}rh;
pj.k dh dkmfUlfyax ds vH;fFkZ;ksa dk mifLFkfr i=d
ftyk csfld f'k{kk vf/kdkjh ehjtkiqj }kjk miyC/k
ugha djk;k x;k gSA"

7.
Relying
upon
the
aforesaid
paragraphs,
learned
counsel
for
the
appellant has submitted that it was the case
of the respondents that a combined select
list
of
the
selected
candidates
was
published
by
the
Department
and,
therefore, there was no question to have
two different select lists. Learned counsel
for the appellant submits that since the
candidates, who had been selected in the
first and the second round of counsellings,
both were shown in the composite list,
therefore, it appears that the vacancies,
which were earlier left unfilled in the first
round of counselling, though could not be
carried forward to the next year in view of
the amendment in sub-section (5) of
Section 3 of the Act, 1993, were
erroneously shown as reserved category
406 INDIAN LAW REPORTS ALLAHABAD SERIES
vacancies. Learned counsel further states
that against the aforesaid erroneous entry of
the vacancies as reserved vacancy, the
petitioner's
name
was
shown
and,
therefore, the entire case was proceeded
with against the appellant on a wrong
premise.

8. During the hearing, learned counsel
appearing
for
the
Board
of
Basic
Education, confined his argument only to
the fact that in the select list prepared after
the first round of counselling held on
16.8.2016 and 17.8.2016, the appellant was
shown as selected candidate against the
category
of
a
Visually
Handicapped
candidate and that too, in the first round of
counselling. He further submitted that the
appellant had got his name entered in the
select list fraudulently.

9. It has further been alleged that since
the appellant had committed fraud, his
name was shown in the select list against
the vacancy which was reserved for a
Visually Handicapped person.

10. After hearing learned counsel for
the parties and after having perused the
records, it appears that in the first round of
counselling, the appellant had appeared
from district Varanasi as he had completed
his BTC Training Certificate Course from
that very district, but when he was declared
unsuccessful
in
the
first
round
of
counselling, he again appeared in the
second round of counselling held on
24.8.2016 and was selected as an Assistant
Teacher on 27.8.2016 to be appointed in a
School, namely, Prathamik School Araji
Devghata, Vikas Khand Lalganj, District
Mirzapur.

11. We are definitely impressed by the
argument advanced by learned counsel for
the appellant that whether the appellant
appeared
in
the
second
round
of
counselling would not be a question to be
answered by the appellant because the
appellant's name appeared at serial no.1 in
the combined select list, which has been
annexed at page 51 of the supplementary
counter affidavit. It mattered little that the
post on which the appellant had been
selected was shown as a post reserved for
Visually Handicapped persons. This we say
for the reason that the posts which were not
filled in the first round of counselling could
not be carried forward to the next process
of selection in view of the amendment of
sub-section (5) of Section 3 of the Act,
1993 and, therefore, the vacant posts, by
implication, could have been filled in by
general candidates.

12. The 'rule of carry forward' in
respect of reservation of posts in favour of
physically handicapped candidates, being
no longer applicable in view of the
omission of sub-section (5) of Section 3 of
the Act, 1993, in terms of the amending
Act of 2016, the filling up of the said posts
by general category candidates, cannot be
said to suffer from any legal infirmity.

13. Learned counsel appearing for the
Board has also not been able to dispute the
position of law with regard to the
amendment of sub-section (5) of Section 3
of the Act, 1993, whereby the unfilled posts
of reserved category could not have been
carried forward to the next selection year
and,
therefore,
the
general
category
candidates could have been selected against
those unfilled posts.

14. In the light of the arguments which
have been made and the reasoning given,
we are of the view that the order dated
2.12.2022, terminating the services of the
1 All. Manish Kumar Vs. G.M. Personnel Human Resource Management & Ors.
407
appellant, was suffering from an error
apparent on the face of record, as it was
passed after putting the burden of bringing
the evidence wrongly on the appellant that
he had participated in the second round of
counselling. The fact of the matter is that
all the relevant documents and the evidence
with
regard
to
the
procedure
of
appointment/counselling were with the
Board and in such a situation, the evidence
of participating in the second round of
counselling could not have been produced
by the appellant. The appellant was
selected as a general category candidate. In
view of the amendment made in Section 5
(3) of the Act, 1993, there was now no
provision to carry forward the vacancies in
the reserved category to the next selection.
Since in respect of the candidates who had
been
selected
after
both
rounds
of
counselling, a single/combined select list
had been prepared, as had been admitted by
the respondents, there was no error in the
petitioner's claim, whose name found place
at serial no.1 of the select list published
compositely.

15.
In
view
of
the
foregoing
discussions, we are of the opinion that the
present special appeal deserves to be
allowed and the same is, accordingly,
allowed. The impugned order passed by the
learned Single Judge dated 1.3.2024 is set
aside. Consequently, the order passed by
the Basic Shiksha Adhikari dated 2.12.2022
is also set aside. Since we have allowed the
special appeal, the appellant be reinstated
in service and he shall be entitled for all the
consequential benefits.
----------
(2025) 1 ILRA 407
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.01.2025

BEFORE
THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 614 of 2024

Manish Kumar ...Petitioner
Versus
G.M.
Personnel
Human
Resource
Management & Ors. ...Respondents

Counsel for the Petitioner:
Siddharth Khare, Sr. Advocate

Counsel for the Respondents:
Krishna Mohan Asthana

A. Practice and Procedure - Special appeal
-
Judicial
review
-
Scope
-
Reappreciation of evidence - Permissibility -
Held, this Court cannot sit in appeal and
cannot re-appreciate the evidence. The
scope of judicial review by this Court is
very limited when the appellant-petitioner
is in special appeal against the judgment
of learned Single Judge by which the writ
petition was dismissed while exercising
the powers under Article 226 of the
Constitution of India. (Para 9)

B. Practice and Procedure - Special appeal
- Scope - Point was not raised before writ
court - Permissibility to raise in Special
Appeal - Held, the point, which was not
raised before the Writ court, the same
cannot be raised in special appeal. (Para
17)

C. Service Law - Departmental enquiry -
Unauthorized absence from duty - Fact
regarding this charge was admitted during
departmental enquiry - Non-supply of
enquiry report
- Effect - Held, no
prejudice was caused to the appellant
even it is assumed that enquiry report was
not supplied to him - Admitted facts need
not be proved whereas in the present case
full-fledged enquiry had taken place in
accordance with law. (Para 17 and 18)

Special Appeal dismissed. (E-1)