# Pradeep Narayan Pandey v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 291
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-22
- **Case number:** Writ A No. 6112 of 2021
- **Bench:** Saumitra Dayal Singh, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-narayan-pandey-v-state-of-u-p-ors-51794
- **Pages:** 31

## Headnote

Service Law - U.P. Higher Judicial Service
Rules, 1975 - Rule 5(c), Rule 7 - Direct
Recruitment to Higher Judicial Service (HJS) -
Eligibility and Reservation - Dheeraj Mor Vs
High Court of Delhi, (2020) 7 SCC 401 -
Petitioner
challenged
revised
result
(01.10.2020)
of
U.P.
HJS
Recruitment
Examination 2018 and appointments of nine
candidates, claiming inclusion in the select list
and appointment as Additional District &
Sessions Judge. Supreme Court's ruling in
Dheeraj Mor requiring continuous practice as
an advocate till the date of appointment
applied prospectively by the High Court, as
resolved on 18.03.2020, approved by Full Court
on 30.09.2020. Respondents Nos. 3 to 9, who
joined other judicial services post-provisional
result (28.03.2019) but before final result
(01.10.2020), held eligible, as their interim
service was fortuitous, under interim orders
during Dheeraj Mor's pendency, and they were
not parties to that litigation. Horizontal
reservation for women (20%) applied as
overall, not compartmentalized, per Rule 7 and
advertisement, validly including two women
candidates (respondents Nos. 10 & 11) lower
in merit than petitioner to meet reservation
quota. No provision for wait list under Rules;
petitioner's
claim
based
on
wait
list
(13.03.2019)
untenable,
as
subsequent
resolution
(24.07.2020)
modified
earlier
resolutions, and no vacancy existed. (Paras 4995)

Writ Petition Dismissed.

List of Cases cited:

## Text

_Characters 0–39,552 of 100,771. This is a partial read: ask again with offset=39552 for what follows._

4 All. Pradeep Narayan Pandey Vs. State of U.P. & Ors.
291

24. In view of the above, the writ
petition is devoid of merit and is hereby
dismissed. No order as to cost.
----------
(2024) 4 ILRA 291
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.01.2024

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Writ A No. 6112 of 2021

Pradeep Narayan Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ramanand Pandey, Sri Abhishek Kumar
Mishra,
Sri
Chandrakesh
Mishra,
Sr.
Advocate, Sri Ashok Khare, Sri D.S. Mishra
(Sr. Advocate)

Counsel for the Respondents:
C.S.C, Sri Apoorv Tiwari, Sri Ashish Mishra,
Sri Satya Prakash, Sri Vinayak Mithal, Sri
Raj Kumar Yadav, Sri T.P. Singh (Sr.
Advocate)

Service Law - U.P. Higher Judicial Service
Rules, 1975 - Rule 5(c), Rule 7 - Direct
Recruitment to Higher Judicial Service (HJS) -
Eligibility and Reservation - Dheeraj Mor Vs
High Court of Delhi, (2020) 7 SCC 401 -
Petitioner
challenged
revised
result
(01.10.2020)
of
U.P.
HJS
Recruitment
Examination 2018 and appointments of nine
candidates, claiming inclusion in the select list
and appointment as Additional District &
Sessions Judge. Supreme Court's ruling in
Dheeraj Mor requiring continuous practice as
an advocate till the date of appointment
applied prospectively by the High Court, as
resolved on 18.03.2020, approved by Full Court
on 30.09.2020. Respondents Nos. 3 to 9, who
joined other judicial services post-provisional
result (28.03.2019) but before final result
(01.10.2020), held eligible, as their interim
service was fortuitous, under interim orders
during Dheeraj Mor's pendency, and they were
not parties to that litigation. Horizontal
reservation for women (20%) applied as
overall, not compartmentalized, per Rule 7 and
advertisement, validly including two women
candidates (respondents Nos. 10 & 11) lower
in merit than petitioner to meet reservation
quota. No provision for wait list under Rules;
petitioner's
claim
based
on
wait
list
(13.03.2019)
untenable,
as
subsequent
resolution
(24.07.2020)
modified
earlier
resolutions, and no vacancy existed. (Paras 4995)

Writ Petition Dismissed.

List of Cases cited:

1. Deepak Agarwal Vs Keshav Kaushik, (2013) 5
SCC 277 (Paras 6, 31, 34, 52)

2. Dheeraj Mor Vs High Court of Delhi, (2020) 7
SCC 401 (Paras 11, 16-19, 32-38, 49-78)

3. Malik Mazhar Sultan Vs UPPSC, (2008) 17
SCC 703 (Paras 37, 57, 58)

4. R. Poornima Vs U.O.I., 2020 SCC OnLine SC
714 (Para 77)

5. Praveen Kumar Vs High Court of Delhi, 2022
SCC OnLine DEL 4447 (Para 77)

6. Smt. Lily Krishnan Vs St. of Kerala, 2023 KER
68493 (Para 77)

7. K. Deepa Vs St. of Kerala, 2020 SCC OnLine
KER 2769 (Para 77)

8. Sunil Kumar Verma Vs St. of Bihar, 2021 SCC
OnLine BIH 786 (Para 77)

9. Shashank Singh Vs High Court of Judicature
at Allahabad, 2021 SCC OnLine All 835 (Para 77)

10. St. of Punj. Vs Baldev Singh, (1999) 6 SCC
172 (Para 19)

11. Praveen Garg Vs High Court of Delhi, 2022
SCC OnLine DEL 4477 (Para 19)
292 INDIAN LAW REPORTS ALLAHABAD SERIES
12. Union Territory of Ladakh Vs J&K National
Conference, 2023 INSC 804 (Para 19)

13. P.VS George Vs St. of Kerala, followed in
Manoj Parihar Vs St. of Jammu & Kashmir, 2022
SCC OnLine SC 782 (Para 19)

14. U.O.I. Vs Ramesh Ram, Civil Appeal Nos.
4310-4311 of 2010 (Para 20)

15. K. Manjushree Vs St. of Andhra Pradesh,
(2008) 3 SCC 512 (Para 20)

16. Rajesh Kumar Dariya Vs Rajasthan PSC,
(2007) 8 SCC 785 (Paras 21, 41)

17. Ajay Kumar Vs St. of U.P., 2019 SCC OnLine
All 2674 (FB) (Para 21)

18. Anil Kumar Gupta Vs St. of U.P., (1995) 5
SCC 173 (Para 21)

19. Tamannaben Ashok Bhai Desai Vs Shital
Amrutlal Nishad, 2020 SCC OnLine Guj 2592
(Para 22)

20. Saurav Yadav Vs St. of U.P., (2021) 4 SCC
542 (Paras 22, 41, 80)

21. Nawal Kishore Mishra Vs High Court of
Judicature at Allahabad, (2015) 5 SCC 479 (Para
40)

22. Shiv Shanker Vs Public Service Commission,
(1996) 3 ESC 50 (Para 41)

23. Rajeev Kumar Vs St. of U.P., 2010 (5) AWC
5321 (Para 41)

24. N.I.C. Ltd. Vs Pranay Sethi, (2017) 16 SCC
680 (Para 34)

25. Shivanandan C.T. Vs High Court of Kerala,
2023 SCC OnLine 994 (Para 35)

26. Kushagra Upadhyay Vs St. of U.P., Writ A
8118/2020, decided on 05.10.2020 (Para 35)

27. Nirav Kumar Dilip Bhai Makwana Vs Gujarat
Public Service Commission, (2019) 7 SCC 383
(Para 28)

28. St. of U.P. Vs Karunesh Kumar, 2022 SCC
OnLine SC 1706 (Paras 47, 86)
29. Indra Sawhney Vs U.O.I., AIR 1993 SC 477
(Para 71)

30. Sunil Kumar Verma Vs St. of Bihar, (2022) 9
SCC 686 (Paras 49, 72)

(Delivered by Hon'ble Saumitra Dayal
Singh, J.
&
Hon'ble Shiv Shanker Prasad, J.)

1. Heard Sri D. S. Mishra learned
Senior Advocate assisted by Sri Ramanand
Pandey learned counsel for the petitioner,
Sri Ashish Mishra learned counsel for the
High Court and Sri T.P. Singh learned
Senior Advocate assisted by Sri Satya
Prakash and Sri Raj Kumar Yadav learned
counsel for private respondent Nos. 6, 8
and 10.

2. Present writ petition has been filed
seeking quashing of the revised result dated
01.10.2020-of U.P. Higher Judicial Service
Recruitment Examination 2018 (hereinafter
referred to as the 'impugned examination').
Also,
challenge
has
been
laid
to
Notification dated 24.3.2021 issued by the
High Court (on administrative side) under
Rule 22(1) of the Uttar Pradesh Higher
Judicial Service Rules, 1975 (hereinafter
referred to as the 'Rules') insofar as it
pertains to appointment of Sri Shashwata
Pandey, Sri Pinku Kumar, Sri Utkarsh
Yadav, Sri Awanish Kumar, Sri Prakash
Chand Rana, Sri Sharad Kumar Tripathi,
Sri Ajay Kumar, Smt. Sandeep Chauhan
and Ms. Hemlata Tyagi as Additional
District & Sessions Judges pursuant to the
impugned examination. Since the writ
petition
filed
by
Sri
Rahul
Singh/respondent No.12 stands dismissed
by the Supreme Court, the petitioner claims
appointment in his place. Further, direction
has been sought to include the petitioner in
the revised result dated 01.10.2020 and to
4 All. Pradeep Narayan Pandey Vs. State of U.P. & Ors.
293
grant appointment to him as Additional
District & Sessions Judge, in the State of
U.P.,
pursuant
to
the
impugned
examination.

3. Pleadings had been exchanged
earlier.
Accordingly,
the
matter
was
proceeded. During hearing, learned counsel
for the High Court produced the original
record
and
consequently
also
filed
Supplementary
Counter
Affidavit
on
23.11.2023.
Supplementary
Rejoinder
Affidavit thereto was filed by the petitioner
on 28.11.2023. Those have also been taken
on record.

4. On 10.5.2018, the High Court
advertised 37 vacancies in Higher Judicial
Service
being
21
vacancies
in
Unreserved/Open Category, 07 in the
Scheduled Caste category and 09 in the
Other
Backward
Class
category.
Applications were invited "from Advocates
having not less than 7 years standing as on
the last date fixed for the submission of
application
forms".
That
date
was
14.6.2018. As to the age limit, it was
stipulated, the candidate must have attained
the age of 35 years and must not have
attained the age of 45 years, on 01.01.2019.
At the same time, age relaxation of three
years was granted to candidates belonging
to Scheduled Caste, Scheduled Tribes and
Other Backward Class.
5. As to horizontal reservation for women,
in terms of Rule 7 of the Rules, the
advertisement
contemplated
20
%
horizontal
reservation
for
women
belonging to the State of U.P. only, in the
following terms:
"20% horizontal reservation for women
belonging to State of U.P. only."
Also, Rule 7 of the Rules reads as below: -
"7. Reservation of posts for Scheduled
Caste, etc.- Reservation to posts in the
service for the members of the Scheduled
Castes,
Scheduled
Tribes
and
other
categories including women shall be in
accordance with orders of the Government
for reservation as adopted by the High
Court.
Provided that twenty percent horizontal
reservation for women to posts in service in
direct recruitment from Bar in Uttar
Pradesh Higher Judicial Service shall be
subject to suitability i.e. if the sufficient
number of women candidates is not
available, then and in that event the
reservation shall not have any operation to
the extent of such unavailability.

Provided further that there shall be no
carry forward of reservation for women."

6. Of candidates who applied under
the above advertisement many were serving
judicial officers in the State of Uttar
Pradesh and even outside. In view of the
amended Rule 5 of the Rules and the ratio
of the decision of the Supreme Court in
Deepak Agarwal Vs. Keshav Kaushik,
(2013) 5 SCC 277, candidature of serving
judicial officers was rejected by the High
Court, on the administrative side. For ready
reference, amended Rule 5(c) of the Rules
reads as below:

"5. Source of recruitment- The recruitment
to the service shall be made---
(a) ......
(b).......
(c) 1by direct recruitment from amongst the
Advocates of not less than seven years
standing as on the last date fixed for the
submission of application forms."

7. Occasioned by that rejection of their
application forms, some such candidates
approached this Court as also the Supreme
Court in exercise of writ jurisdiction to
294 INDIAN LAW REPORTS ALLAHABAD SERIES
assail the rejection of their candidatureInterim orders came to be passed in their
favour allowing them to provisionally
participate in the impugned examination.
However, their results were not declared
during pendency of litigation. Also,
respondent
No.
12-Rahul
Singh
approached the Supreme Court by filing
Writ Petition (Civil) No. 1371 of 2018.
Interim order was granted in his favour
on
22.11.2018
allowing
him
to
provisionally
participate
in
the
examination.

8. Consequently, petitioner as also
the private respondents participated in the
main written test of the impugned
examination
from
07.12.2018
to
09.12.2018.
First,
the
High
Court
declared result of that examination on
28.02.2019. In that, 40 Unreserved/Open
Category
candidates
and
04
Other
Backward Class candidates were declared
successful for the interview test. They
were invited for interview conducted on
11.3.2019 and 12.3.2019. Petitioner was
one of them.

9.
Thereafter,
the
High
Court
declared result on 28.03.2019 wherein 21
candidates under the Unreserved/Open
Category and 2 candidates under the OBC
category were declared successful. None
was successful under the SC Category. Of
the 21 candidates successful under the
Unreserved/Open Category, 11 were such
who had participated in the impugned
examination provisionally under interim
orders granted by this Court and the
Supreme Court. For that reason, their
names were not disclosed/published in
the result. Against their respective merit
position, word "Reserved" was published.
Also, a Note was attached below that
result:

10. For ready reference that result as
declared is extracted below: -

"THE HIGH COURT OF JUDICATURE
AT ALLAHABAD
U.P.
HIGHER
JUDICIAL
SERVICE
RECRUITMENT 2018
No. 171/S & A/2019 Dated: Allahabad:
March 28, 2019
FINAL RESULT
On the basis of written examination held on
07, 08 and 09 December 2018 followed by
Interview on 11th and 12th March 2019 the
following candidates, in order of merit,
have been recommended by the High Court
for
appointment
by
way
of
direct
recruitment to U.P. Higher Judicial Service
under Rule 5(c) read with Rule 18 of
U.P.H.J.S. Rules, 1975:
Unreserved Category
Sl No. Roll
No.
Name of Candidates
SRI/SMT/KM
Category
1
RESERVED
2

RESERVED

3

RESERVED

4
RESERVED
5
3553
POONAM (F)
GEN
6
2960
MOHD. SHARIQ SIDDIQUE
GEN
7
2513
LAKHWINDER SINGH
SOOD
GEN
8
RESERVED
9
5468
SMT RAGINI (F)
GEN
10
RESERVED
11
RESERVED
12
6180
VINOD KUMAR
CHAURASIA
OBC
13
2844
MAYANK TRIPATHI
GEN
14
3564
POONAM SINGHAL (F)
GEN
15
RESERVED
16
5201
SHAILJA RATHI (F)
OBC
17
RESERVED
18
759
ANURAG PANWAR
GEN
19
RESERVED
20
6411
ZAIBA MAJID (F)
GEN
4 All. Pradeep Narayan Pandey Vs. State of U.P. & Ors.
295
21
RESERVED
Note: (1) Names of 02 OBC category
candidates have been included in the list of
unreserved category candidates on the
basis of their marks in the written
examination and interview and they are
being treated as unreserved category
candidates.
(2) The results of the petitioners in the
above list are kept reserved and their fate
shall be decided after the final outcome of
the petitions filed by them.
OBC Category
Sl No. Roll No.
Name
of
Candidates
SRI/SMT/KM
Category
1
158
AJAY KUMAR
OBC
2
5708
SURENDRA
PAL
SINGH
OBC
"

11. Since the result of 10 selected
advocate
candidates
(under
the
Open/Unreserved
category)
and
2
candidates (under the OBC category) was
undisputed or clear, the selection of those
selected
candidates
was
notified
in
accordance with the terms of the resolution
of
the
Selection
Committee
dated
15.07.2019 as approved by the Full court.
They were issued appointment letters.
Consequently, they joined in service. For
the remaining, the matter remained pending
final disposal of petitions filed by them.
Meanwhile, the decision of the Supreme
Court in Dheeraj Mor Vs. High Court of
Delhi, (2020) 7 SCC 401 was delivered on
19.02.2020. In short, it may be noted, for
the first-time law was declared, to be
eligible, an advocate candidate seeking
direct recruitment to HJS Examination
must not only have completed seven years
of practice on the last date of submission of
applications, but he must continue to be an
advocate up to the date of his appointment
as a HJS Officer.

12. After the judgement of Dheeraj
Mor (supra) all the serving judicial
officers
whose
application
had
been
rejected by the High Court but who
appeared in the impugned examination
under interim orders granted by this Court
and the Supreme Court, were disqualified.
Their writ petitions both before this Court
and also before the Supreme Court came to
be dismissed.

13. In that circumstance, the High
Court revised the earlier result dated
28.03.2019 and declared further (final)
result
pursuant
to
the
impugned
examination, on 01.10.2020. In that, all 21
posts for Unreserved/Open category were
filled up. 7 female candidates and 3
candidates who had applied under the OBC
category were also shown successful in the
Unreserved/Open category. Further, as
against 2 OBC candidates shown selected
under the earlier result declared on
28.03.2019 only 1 found his name included
under that category. One above him in the
merit list namely, Ajay Kumar was now
shown selected under the Unreserved
category. Those found ineligible were
replaced by those placed lower in merit (in
the Unreserved/Open category). For ready
reference, the result dated 01.10.2020 reads
as below: -
"UNRESERVED CATEGORY
Sl
No.
Roll No. Name of Candidate
Catg
1
3553
POONAM (F)
GEN
2
2960
MOHD. SHARIQUE
SIDDIQUE
GEN
3
2513
LAKHWINDER SINGH
SOOD
GEN
296 INDIAN LAW REPORTS ALLAHABAD SERIES
4
5468
SMT. RAGINI (F)
GEN
5
6180
VINOD KUMAR
CHAURASIA
OBC
6
2844
MAYANK TRIPATHI
GEN
7
3564
POONAM SINGHAL (F) GEN
8
5201
SHAILJA RATHI (F)
OBC
9
759
ANURAG PANWAR
GEN
10
6411
ZAIBA MAJID (F)
GEN
11
5294
SHASHWATA PANDEY GEN
12
3535
PINKU KUMAR
GEN
13
44
ABHISHEK KUMAR
BAGARIA
GEN
14
5908
UTKARSH YADAV
GEN
15
1133
AWANISH KUMAR
GEN
16
3452
PARKASH CHAND
RANA
GEN
17
4997
SARAD KUMAR
TRIPATHI
GEN
18
5511
SUBHASH CHANDRA
TIWARI
GEN
19
158
AJAY KUMAR
OBC
20
4740
SANDEEP CHAUHAN
(F)
GEN
21
2026
HEMLATA TYAGI (F)
GEN
O.B.C. CATEGORY
Sl
No.
Roll
No.
Name
of
Candidate
Catg
1.
5708
SURENDRA
PAL SINGH
OBC

14. It is also a fact, besides the
impugned
examination,
three
other
examinations of U.P.H.J.S. were conducted
during the period July, 2016 to September,
2018 being U.P.H.J.S.-2016, U.P.H.J.S.-
2018 (Part-II) and U.P.H.J.S.-2018 (PartIII). Litigation was experienced at those
three examinations as well. Only upon
pronouncement of the decision of the
Supreme Court in Dheeraj Mor (supra)
and dismissal of individual litigation
brought by various candidates (allowed to
provisionally
appear
at
those
examinations), the results for U.P.H.J.S.-
2016,
U.P.H.J.S.-2018
(Part-II)
and
U.P.H.J.S.-2018 (Part-III) were finalised on
01.10.2020 along with the impugned
examination. For ready reference, the dates
of advertisement published and declaration
of results of all four exams is given below:-

Sl
No
.
Recruit
ment
Year
Advertise
ment
Date
Written
Exam
Interview
Date
Final Result Modifie
d Result
1.
UPHJS
-2016
10.5.2016 24.3.2017 29/30.04.20
17
18.08.2017
01.10.20
20
2.
UPHJS
-2018
10.5.2018 28.2.2019 11/12.03.20
19
28.03.2019
01.10.20
20
3.
UPHJS
-
2018(II
)
12.11.201
8
03.07.201
9
13/14.07.20
19
26.07.2019
01.10.20
20
4.
UPHJS
-
2018)II
I)
9.8.2019
09.12.201
9
14/15.12.20
19
20.12.2019
01.10.20
20

15. In such facts, Sri D.S. Mishra,
learned Senior Advocate has vehemently
urged that respondent Nos. 3 to 9 namely
Sri Shashwat Pandey, Sri Pinku Kumar, Sri
Utkarsh Yadav, Sri Awnish Kumar, Sri
Prakash Chand Rana, Sri Sharad Kumar
Tripathi and Sri Ajay Kumar were
ineligible, as on 01.10.2020.

16. Sri Shashwata Pandey, Sri Pinku
Kumar, Sri Utkarsh Yadav, and Sri Prakash
Chandra Rana had earlier been declared
successful in U.P.H.J.S.-2018 (Part-2)
Examination vide result declared on
26.07.2019. They had joined pursuant to
that result. Sri Awanish Kumar was
selected
at
the
H.J.S.
Examination
conducted in the State of Gujarat; Sri
Prakash Chand Rana had also been selected
at the H.J.S. Examination conducted in the
State of Himachal Pradesh and Sri Sharad
Kumar Tripathi had been selected at the
H.J.S. Examination conducted in the State
of Jharkhand. All three had joined against
those selections before declaration of the
4 All. Pradeep Narayan Pandey Vs. State of U.P. & Ors.
297
result of the impugned examination, on
01.10.2020. In fact, Sri Prakash Chand
Rana first resigned from U.P.H.J.S and
then joined at Himachal Pradesh. Last, Sri
Ajay Kumar had joined U.P.H.J.S. pursuant
to the result declared on 28.03.2019 upon
his selection as a OBC candidate. Also, the
subsequent result declared on 01.10.2020
was not acted upon inasmuch as no
notification has been issued to appoint him
under Unreserved/Open category. Hence,
all seven (respondent Nos. 3 to 9) are
described ineligible to appointment on
01.10.2020, in view of the ratio of Dheeraj
Mor (supra). On the self-same reasoning
Rahul Singh, respondent No. 12 is
described as ineligible for reason of his
appointment and joining M.P. Judicial
Service, prior to declaration of result of the
impugned examination on 01.10.2020.
Though
he
has
not
been
declared
successful, it is further asserted, his higher
merit position (as compared to petitioner) is
to be ignored owing to his ineligibility. In
any case, his Writ Petition filed by him
before the Supreme Court has been
dismissed. Hence, he may have no claim.

17. The underlying reasoning in
support of the above submission advanced
by Sri D.S. Mishra is-being a mandatory
condition prescribed in Dheeraj Mor
(supra), no candidate could be eligible at
the impugned examination unless he had
continued in practice without any break till
his appointment under the impugned
examination.
None
of
the
private
respondent Nos. 3 to 9 remained eligible
for appointment on 01.10.2020 as they had
discontinued their practice of law before
that date. Respondent Nos. 3 to 9 had
joined judicial service prior to that date.
Therefore, they were not in continuous
practice on the date of appointment offered
to them by the High Court, on 01.10.2020.
In support of the above, heavy reliance has
been placed on the language of Article 233
of the Constitution of India as last
interpreted by the Supreme Court in
Dheeraj Mor (supra). Here, it has been
further disclosed, in similar circumstances,
Awanish Kumar filed a writ petition before
the Delhi High Court to gain appointment
under the Delhi H.J.S. That claim was
negated and his writ petition was dismissed
by the Delhi High Court on 28.01.2020
being Awanish Kumar Vs. Registrar
General, Writ Petition (C) 489 of 2020,
since he stood appointed in Gujarat on
05.07.2018.

18. The dictum of the Supreme Court
in Dheeraj Mor (supra) has further been
relied on and followed in all subsequent
decisions pronounced by the Supreme
Court and different High Courts. Reference
has been made to R. Poornima and others
versus Union of India and others 2020
SCC OnLine SC 714; Praveen Kumar
Vs. High Court of Delhi and others 2022
SCC Online DEL 4447; Smt. Lily
Krishnan Vs. State of Kerala and others
2023-KER 68493; K. Deepa Vs. State of
Kerala 2020 SCC Online KER 2769;
Sunil Kumar Verma Vs. State of Bihar
2021 SCC Online BIH 786., as also a
decision of this Court in Shashank Singh
and 4 others Vs. High Court of
Judicature at Allahabad and another,
2021 SCC OnLine All 835, (Writ-A No.
27120 of 2018 decided on 03.12.2021)
2021:AHC:152579:DB. Thus, it has been
emphasised, the only consistent view on the
issue is that laid down by the Supreme
Court in Dheeraj Mor as reiterated in R.
Poornima (supra).

19. To complete his submission on the
issue, Sri Mishra has pointed out, the
correctness of the view taken by the
298 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme Court in Dheeraj Mor (supra)
may have been doubted and the matter
referred to a larger bench of the Supreme
Court on a Review Application, at the same
time, in absence of any order passed to stay
the operation and effect of the judgment in
the case of Dheeraj Mor (supra), the ratio
of the said decision retains its binding
precedential value. In absence of any doubt
as to that, this Court must apply that law
declared by the Supreme Court. Here
reference has been made to 5 judge bench
decision of the Supreme Court in the case
of State of Punjab versus Baldev Singh
(1999) 6 SCC 172 and a division bench
decision of the Delhi High Court in
Praveen Garg Vs. High Court of Delhi
and Others, 2022 SCC OnLine 4477.
Referring to a recent decision of the
Supreme Court in Union Territory of
Ladakh and others Vs. J&K National
Conference and Another, 2023 INSC
804, it has been vehemently asserted, in
view of the clear law declared by the
Supreme Court, it does not remain open
to the High Court to await the outcome of
the result of the reference made to the
larger bench of the Supreme Court. It is
clearly not open to the High Court to
refuse to follow the said law even if it
may have been doubted later, by another
bench of the Supreme Court. It has been
further asserted, in that situation the
earlier decision of the Supreme Court
would bind this Court. In any case,
review has not been preferred (before the
Supreme
Court),
by
any
of
the
respondents in the present case. Hence,
relying on P.V. George and Others Vs.
State of Kerala and Others as followed in
Manoj Parihar and another Vs. State of
Jammu & Kashmir, 2022 SCC OnLine
SC 782, it has also been asserted, the law
declared by the Supreme Court would
operate retrospectively.

20. Second, it has been submitted, the
procedure of selection; the process of
selection and result has been changed
during
the
selection
process.
20%
reservation for women was originally
advertised. That would translate to 4
vacancies
under
the
Open/Unreserved
category. Against that, 5 female candidates
were declared selected in that category in
the
provisional
result
declared
on
28.3.2019. Instead of rectifying that error,
at the stage of declaration of the further
result on 01.10.2020, 2 more female
candidates were declared selected under the
Open/Unreserved category that too those
who were placed lower in merit to the
present petitioner. Thus, against 5 posts
reserved for women, 7 women candidates
have
been
selected,
two
of
whom
(respondent Nos. 10 & 11) stood lower in
merit to the petitioner. Reliance has been
placed on the decision of the Supreme
Court in Union of India Vs. Ramesh Ram
and others, Civil Appeal Nos. 4310-4311
of 2010. Relying on the decision of the
Supreme Court in K. Manjushree Vs.
State of Andhra Pradesh and Another
(2008) 3 SCC 512, it has been emphasised,
it was never permissible for the High Court
to change the rules of recruitment after
issuance of the advertisement.

21. First referring to the terms of
advertisement dated 10.05.2018, it has been
asserted 20% horizontal reservation for
women had to be provided according to the
Government
Order
issued
by
the
Government
of
UP
i.e.
in
a
compartmentalised manner only. Reliance
has been placed on Rajesh Kumar Dariya
Vs. Rajasthan PSC, (2007) 1 SCC 785 as
also a Full Bench decision of this court in
Ajay Kumar Vs State of UP and others
2019 SCC
Online
All 2674
(FB).
Applying that method, only four women
4 All. Pradeep Narayan Pandey Vs. State of U.P. & Ors.
299
candidates may have been selected under
the Unreserved/Open category i.e. on the
strength of merit. This exact approach was
criticised by the Supreme Court in Anil
Kumar Gupta and ors. Vs St. of U.P.
(1995) 5 SCC 173. Thus, it has been
submitted, the mandatory rule in favour of
compartmentalised reservation to give
effect to 20% horizontal reservation for
women, was violated. To that extent
selection of respondent numbers 10 and
11 must be cancelled.

22. Further, as to the correct method
to
be
applied
to
implement
compartmentalised
horizontal
reservation, the law laid down by the
Gujarat High Court in Tamannaben
Ashok Bhai Desai Vs Shital Amrutlal
Nishad 2020 SCC Online Guj 2592 as
affirmed by the Supreme Court in Saurav
Yadav Vs State of UP and others 2020
SCC Online 1109 has been relied.
Following that method, respondent Nos.
10 & 11 would remain excluded from
selection as an Unreserved/Open category
candidate as four women candidates
stood selected (under that category), from
before, on the strength of their higher
merit position.

23. In this regard, it has also been
submitted, Ms. Poonam Singhal the
candidate selected at serial no. 1 of the
result
dated
01.10.2020
cannot
be
included under horizontal reservation for
women. She being a candidate domiciled
in the State of Haryana, the horizontal
reservation for women of Uttar Pradesh
was not available to her.

24. Next, it has been submitted, a Wait
List of 12 candidates including the present
petitioner had been prepared and approved
in the meeting of the Selection Committee
dated 13.03.2019. That was approved by
the Full Court. Though, its existence was
initially denied in the Counter Affidavit
filed by respondent number 2 yet, pursuant
to the earlier order of this Court, the record
produced
clearly
demonstrates
and
confirms the existence of that Wait List.
That resolution of the Selection Committee
had been approved by the Full Court. Thus,
it has been submitted, the candidate Yogesh
Kumar though placed at serial number 6 of
the Wait List, he was granted appointment
in the Higher Judicial Service pursuant to
his selection in the examination for the year
2016. Similarly, Ajay Kumar had been
selected as OBC candidate. Since, the writ
petition filed by Rahul Singh (the candidate
placed at serial number 11 of the Wait List)
was dismissed by the Supreme Court, the
petitioner claims absolute entitlement to
appointment being placed at Serial No. 12
of the Wait List number in terms of the
resolution of the Selection Committee
dated 13.03.2019.

25. On that premise and reasoning,
learned senior counsel for the petitioner
vehemently urged - the petitioner deserved
to be included in the list of 21 selected
candidates under the Unreserved/Open
category. The petitioner is entitled to that
selection irrespective of application of the
rule
of
compartmentalised
horizontal
reservation for women. In fact, the
Selection Committee itself made a note in
the
minutes
of
the
meeting
dated
13.03.2019 that the petitioner would be
selected if the writ petition filed by Rahul
Singh would be dismissed. For ready
reference, relevant extract of the Wait List
considered by the Selection Committee in
its meeting held on 13.03.2019, is quoted
below:
"IN
THE
HIGH
COURT
OF
JUDICATURE AT ALLAHABAD
300 INDIAN LAW REPORTS ALLAHABAD SERIES
U.P. HIGHER JUDICIAL RECRUITMENT
2018 (DHJS)
Waiting List Against Petitioners
Remarks:* Permitted by Courts Order (F)
Female Candidate

Sl
No.
Roll
No.
Name of
Candidat
es
Date
of
Birth
Category Marks
of
Writte
n
Exam
(Max.
800)
Marks
of
Intervi
ew
(Max.
200)
Total
Marks
(Max. 100)
1.
5294
SHASHW
ATA
PANDEY
21.06.198
3
GEN
374.50 120.00 494.50
2.
3535
PINKU
KUMAR
10.04.198
1
GEN
392.50 100.00 492.50
3.
44
ABHISH
EK
KUMAR
BAGARI
A
20.12.197
8
GEN
371.00 120.00 491.00
4.
5908
UTKARS
H
YADAV
11.08.198
3
GEN
364.50 125.00 489.50
5.
1133
AWANIS
H
KUMAR
01.03.198
1
GEN
369.00 120.00 489.00
6.
6392
YOGESH
KUMAR
20.01.197
5
GEN
363.50 125.00 488.50
7.
3452
PARKAS
H
CHAND
RANA
13.05.197
9
GEN
367.00 120.00 487.00
8.
4997
SARAD
KUMAR
TRIPATH
I
02.01.197
9
GEN
364.50 120.00 484.50
9.
5511
SUBHAS
H
CHANDR
A
TIWARI
16.09.197
4
GEN
361.50 120.00 481.50
10.
3418
PANKAJ
KUMAR
RAI
01.01.197
8
GEN
373.00 100.00 473.00
11.
*3952 RAHUL
SINGH
28.04.197
9
GEN
360.00 110.00 470.00
12.
3446
PARDEE
P
01.11.197 GEN
369.00 100.00 469.00
NARAYA
N
PANDEY
5
* Permitted by Courts Order
Note: Sri Rahul Singh Advocate, appearing
at serial number 11 has also filed a petition
before Apex Court in case of His Petition
gets dismissed Sri Pardeep Narayan
Pandey appearing at serial number 12
shall be recommended.

26. Yogesh Kumar, Prakash Chand
Rana and Rahul Singh being not available
for consideration against their Wait List
positions, the petitioner claims a perfect
right to be appointed against his Wait List
position 12, on the strength of the
resolution of the Selection Committee
dated 13.03.2019 (extracted above).

27. Again, as noted above, respondent
No.9 Ajay Kumar who was earlier shown
selected under the OBC category was later
migrated to the Open/Unreserved category.
It has been reiterated since Ajay Kumar
joined as OBC candidate pursuant to the
result declared on 28.03.2019, he ceased to
be in practice as an Advocate on the
occurrence of that event. Consequently, he
became ineligible to be appointed under the
Open/Unreserved Category under the result
declared on 01.10.2020.

28. It has also been submitted,
Surendra Pal Singh was selected under the
social category OBC, under the result
declared on 28.03.2019. However, he had
appeared in the impugned examination
upon age relaxation granted to him as an
OBC candidate. Therefore, he would
remain selected under that category and
may never claim selection/migration from
OBC
Category
to
Open/Unreserved
Category. Reliance has been placed on
Nirav Kumar Dilip Bhai Makwana Vs.
4 All. Pradeep Narayan Pandey Vs. State of U.P. & Ors.
301
Gujarat Public Service Commission &
Ors., (2019) 7 SCC 383.

29. According to the learned Senior
Advocate appearing for the petitioner, in
any case, three vacancies are still available
under Open/Unreserved Category being
that of Prakash Chand Rana who has not
joined
pursuant
to
the
result
dated
01.10.2020,
Ajay
Kumar
who
may
continue only as an OBC candidate only.
Yogesh Kumar had been moved to 2016
U.P.H.J.S. Since the writ petition filed by
Rahul Singh was dismissed by the Supreme
Court on 27.09.2021, the petitioner is one
of the only two candidates available for that
selection. Therefore, without prejudice to
the other submissions advanced on behalf
of the petitioner, he remains entitled to
appointment against that vacant post.

30. Responding to the above, Sri
Ashish Mishra, learned counsel for the
High Court submitted, it is factually
incorrect to say that the appointment of
respondent no. 9/Ajay Kumar had not been
notified.

31. Second, as to eligibility condition
of seven years continuous practice, the
unamended Rule 5(c) of the Rules
prescribed eligibility of seven years of
practice on the first day of January
following the year of publication of the
advertisement. That stipulation in the Rule
was contrary to the law declared by the
Supreme Court in Deepak Agarwal
(supra). Consequently, vide amendment
made on 20.12.2016, Rule 5(c) was
amended to prescribe seven years of
practice on the last date for submitting
applications.
Applying
that
law,
the
advertisement
was
published
on
10.05.2018, for the impugned examination.
Second, similar selections for H.J.S. (both
in the State of Uttar Pradesh and elsewhere)
were initiated in different years, during
2016 to 2018.

32.
While
such
selections
were
pending, another controversy arose namely,
whether judicial officers (of the Nyayik
Seva/similar cadre in other states) who had
been an advocate for seven years before
joining such judicial service, were eligible
as an advocate candidate to apply for
appointment in the H.J.S. cadre of a state
judiciary. Thus, in Dheeraj Mor (supra)
that issue was raised by serving judicial
officers in the context of Delhi Higher
Judicial Service examination. They claimed
eligibility
under
advocate
candidate
category as they had completed seven years
continuous practice before joining the state
judiciary in the lower cadre. Pending that
challenge
raised,
many
such
officers/applicants approached the Supreme
Court
or
this
Court.
They
were
provisionally permitted to participate in the
H.J.S. examinations conducted during 2016
to 2018.

33. In dealing with that issue the
Supreme Court ruled (for the first time) in
Dheeraj Mor (supra) that the eligibility
condition of seven years of continuous
practice must not only be met on the last
date of filing the application but must it
continue to be met till the date of
appointment in the H.J.S. cadre. That
stipulation first arose in Dheeraj Mor
(supra). It was a clear departure made from
the law laid down by the Supreme Court in
Deepak Agarwal (supra). He has also
referred to the difference of language
employed by the Rules and Rule 9 of the
Delhi
Higher
Judicial
Service
Rules
considered by the Supreme Court in
Dheeraj
Mor
(supra).
There,
the
eligibility condition required a candidate to
302 INDIAN LAW REPORTS ALLAHABAD SERIES
have not less than seven years of practice.
That language alone fell for interpretation.

34. Thus, Sri Ashish Mishra has
attempted to distinguish Dheeraj Mor
(supra). Relying on N.I.C. Ltd. Vs
Pranay Sethi (2017) 16 SCC 680 it has
been submitted, a subsequent coequal
bench of the Supreme Court in Dheeraj
Mor (supra) may have differed and thus
referred to a larger bench of that Court, the
point of disagreement. Yet, it may not have
laid down a law contrary to Deepak
Agarwal (supra). To that extent, the
earlier law laid down remains the only
binding law.

35. Third, invoking the evidentiary
rule of legitimate expectation and relying
on Shivanandan C.T. Vs High Court of
Kerala 2023 SCC Online 994 it has been
submitted,
upon
publication
of
the
advertisement
for
the
impugned
examination and by notification of the
eligibility condition of seven years of
practice on the last date of making the
application, a legitimate expectation arose
in favour of all applicants fulfilling that
eligibility condition. Therefore, it was not
possible to make any addition or change to
those eligibility conditions and/or create
fresh disabilities to exclude the eligible
candidates. The same principle was applied
by a coordinate bench of this Court in
Kushagra Upadhyay Vs State of U.P and
others (Writ A 8118/2020 decided on
05.10.2020). There, in the context of the
same examination it was ruled- the
eligibility had to be seen on the last date of
submitting the application form.

36. Fourth, it has been submitted if the
law laid down in Dheeraj Mor (supra)
was applied retrospectively, it would lead
to unintended, grossly harsh, and wholly
unwarranted results. Its literal compliance
would require the respondents to comb
through the entire H.J.S. cadre, to eliminate
those who may have joined service against
vacancies for advocate candidates while
serving as judicial officers on the date of
their respective appointments. It would
result in removal from service of officers
whose selection had never been challenged
and who fulfilled the eligibility condition
on the date of their respective appointment.
Even in the context of the present dispute,
the ousted candidates would lose their
eligibility at any subsequent examination
for reason of their suffering forced
discontinuance of practice for the duration
they remained in service upon their
selection under the impugned examination.
Thus, reference has been made to the
interim orders granted by the Supreme
Court in Misc. Application No. 1050/2021
i.e. in the Review Application proceedings
arising from Dheeraj Mor (supra) being
order dated 04.01.2023 as also the order
dated 12.07.2021 in Rejanish K.V. Vs K.
Deepa and Others, Civil Appeal No.
3947/2020.

37. The challenge raised in Dheeraj
Mor (supra) remained pending before the
Supreme Court from year 2015 to 2020,
upon arising of vacancies (in the H.J.S.
cadre). In due compliance of the directions
issued by the Supreme Court in Malik
Mazhar Sultan (3) and another Vs
UPPSC & others (2008) 17 SCC 703 the
High Court conducted 4 examinations,
including
the
impugned
examination.
Results of all such selections became
pending, occasioned by pendency of
Dheeraj Mor (supra) while vacancies
continued to pile. Considering the above
circumstances, initially on 15.07.2019, the
Selection Committee resolved to give effect
to the interim order dated 10.05.2019
4 All. Pradeep Narayan Pandey Vs. State of U.P. & Ors.
303
passed by the Supreme Court in Dheeraj
Mor (supra). Thus, it resolved to appoint
such practicing advocates who had been
selected (pending the outcome of that
litigation), whose eligibility was not in
doubt. That declaration of the results is
therefore described provisional. For ready
reference, a relevant
extract of the
resolution dated 15.07.2019 is quoted
below:
".........The
Committee
before
recommending
the
name
of
the
candidates
finally,
for
appointment
against the vacancies determined under
25% quota of direct recruitment to U.P.
Higher Judicial Service, 2018 (Part-II)
deliberated
over
the
order
dated
10.05.2019 Dheeraj Mor vs. Hon'ble High
Court of Delhi (supra) wherein it has
been directed that the "......practicing
advocates who have been found selected
for appointment, their result be declared
and they be appointed subject to the
outcome of the pending matter."

38. Upon pronouncement of the
decision in Dheeraj Mor (supra), the
Selection
Committee
vide
further
resolution
dated
27.02.2020
initially
resolved to exclude from the Select List
such advocate candidates who may have
been serving in the judicial service/Nyayik
Seva, on the date of their appointment in
the H.J.S. cadre. Later, on 18.03.2020 the
Selection
Committee
reconsidered
its
earlier resolution dated 27.02.2020 and
took a conscious decision to apply the ratio
of Dheeraj Mor (supra) prospectively.
Further, the Selection Committee resolved
to place the selected candidates in order of
their seniority against success in their
first/earlier selection gained in the four
H.J.S. selection examinations referred to
above.
To
that
extent,
the
earlier
resolutions were specifically modified.
That resolution dated 18.03.2020 was
approved by the Full Court on 30.9.2020.
For ready reference the relevant extract of
the resolution dated 18.03.2020 is quoted
below:
"1. It has been apprised that certain
candidates have been selected in multiple
recruitment such as UPHJS-2016, UPHJS-
2018, UPHJS-2018 (Part II) and UPHJS2018 (Part III).