# Raj Kumar Gupta v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 633
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-20
- **Case number:** Writ A No. 4419 of 2020
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-gupta-v-state-of-u-p-ors-45479
- **Pages:** 5

## Headnote

A. Service Law - Recruitment - Application
of the petitioner, an ex-serviceman who applied
for the post of constable in the Civil Police and
the Provincial Armed Constabulary was rejected
not on the ground that he did not possess the
domicile certificate which was consistent with
the terms of the advertisement but because he
could not produce it at the time of scrutiny of
documents. The Court directed to grant another
opportunity to produce the domicile certificate
dated 08.02.2018. (Para 22, 25)

Principles evolved by courts for administering
benefits of reservation to various communities,
can also be applied to the class of ExServicemen. Reservation cannot be construed
by the authorities in a pedantic manner. It has
to be implemented in a fashion to achieve the
object of reservations. (Para 21)
Writ Petition allowed. (E-10)

## Text

12 All. Raj Kumar Gupta Vs. State of U.P. & Ors.
633
down declared by the Central Government
and Government of U.P., the judgment is
pronounced by me today in Chamber as per
Rule 1 sub-clause (1) (2) and (3) of Chapter
VII of the Allahabad High Court Rules,
1952.

Dated20.04.2020
(Justice Virendra Kumar -II)
----------
(2020)12ILR A633
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2020

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ A No. 4419 of 2020

Raj Kumar Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhagwan Dutt Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Recruitment - Application
of the petitioner, an ex-serviceman who applied
for the post of constable in the Civil Police and
the Provincial Armed Constabulary was rejected
not on the ground that he did not possess the
domicile certificate which was consistent with
the terms of the advertisement but because he
could not produce it at the time of scrutiny of
documents. The Court directed to grant another
opportunity to produce the domicile certificate
dated 08.02.2018. (Para 22, 25)

Principles evolved by courts for administering
benefits of reservation to various communities,
can also be applied to the class of ExServicemen. Reservation cannot be construed
by the authorities in a pedantic manner. It has
to be implemented in a fashion to achieve the
object of reservations. (Para 21)
Writ Petition allowed. (E-10)

(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Shri Bhagwan Dutt Pandey,
learned counsel for the petitioner and Shri
Jagdish Singh Bundela, learned Standing
Counsel for the State-respondents.

2. The petitioner is aggrieved by the
cancellation of his candidature in the ExServicemen category for appointment on
the post of Constable in the Civil Police
and PAC.

3.

The
petitioner
applied
for
appointment on the post of constable in the
Civil Police and the Provincial Armed
Constabulary,
in
response
to
the
recruitment proceedings initiated with
advertisement dated 16.11.2018, under the
Ex-Servicemen category.

4. The last date of submission of
application form was 08.12.2018. The
application form of the petitioner was duly
accepted. The petitioner was declared
successful
in
initial
phases
of
the
examinations. The later phases of the
examination were for scrutiny of the
documents and physical standards test.
Only the domicile certificates issued on or
before
08.12.2018
were
liable
for
consideration. The domicile certificate had
to be tendered at the time of scrutiny of
documents and was not required to be
submitted along with the application form.

5. At the time of scrutiny of
documents the petitioner produced a
domicile certificate issued on 02.02.2019.
The date of the said domicile certificate
was subsequent to the last date of
submission of the application form and was
liable to be rejected.
634 INDIAN LAW REPORTS ALLAHABAD SERIES

6. On this foot the petitioner's
candidature
under
the
Ex-Servicemen
category was cancelled.

7. It is not disputed by the
respondents in the counter affidavit that the
petitioner in possession of a domicile
certificate
dated
08.02.2018,
which
rendered him eligible. However, on the
date of verification of the testimonials, the
petitioner could not produce the domicile
certificate dated 08.02.2018.

8. Last date of submission of
application forms, is the cut off date for
possessing eligibility qualifications. The
requirement
of
submitting
documents
alongwith the application form is of an
imperative nature. The sanctity of the last
date of submission of application form is
essentially to limit the eligibility of the
candidates.

9. The last date of submission of
application forms and the date for scrutiny
of documents do not stand on the same
footing. The former date is fixed in the
advertisement and is determinative of
eligibility. On the other hand the date of
scrutiny of domicile certificates alongwith
other eligibility testimonials has a separate
purpose. The date of scrutiny of documents
does not have a bearing on eligibility. It is
only
for
verification
of
preexisting
testimonials of admitted eligibility. At
times, the dates may be varied by the
authorities, without offending the selection.
This is not to suggest that the time line of
the recruitment process is not liable to be
respected.

10. The date for scrutiny of
documents
was
not
fixed
in
the
advertisement and was kept open. The lack
of certainty in the said date is evident from
perusal of the relevant part of the
advertisement is extracted hereinunder:

"(6). आरक्षण / आयु में छूट का लाि
चाहने वाले उत्तर प्रदेश के आरजक्षत श्रेणी के
अभ्यथी आवेदन में अपनी श्रेणी अवश्य अांजकत
करें तथा जनधायररत प्रारूप पर सक्षम अजधकारी
द्वारा िारी प्रमाण पत्र आवेदन करने से पूवय प्राप्त
कर लें एवां िब उनसे अपेक्षा की िाये तब वे उसे
प्रस्तुत करें । राज्य सरकार द्वारा जनधायररत
प्रारूप के अजतररक्त जकसी अन्य प्रारूप में
प्रस्तुत प्रमाण पत्र मान्य नहीां होगा।"

11. The recruitment process in a
public service, is intended to appoint the
best and most eligible candidates, and also
faithfully implement the reservation policy
of the State Eligibility criteria is inviolable,
and hence the cut off date in the
advertisement for submitting applicable
forms is inflexible. In later phases of the
recruitment process in hand, documents of
eligibility are scrutinized. Only preexisting
testimonials
in
conformity
with
the
declarations made in the application form
and consistent with the requirements in the
advertisement are liable to be considered.
Further only candidates who have cleared
the initial competitive stages of the
recruitment process enter the subsequent
stages. The subsequent stages of the
recruitment are in the likeness of due
diligence process into the authenticity of
the testimonials of the candidates.

12. Hence, in these later selection
stages room to correct any human errors
has to be provided for to ensure that
meritorious candidates are not denied
appointments on the foot of technical
defaults or marginal human errors. Current
practices in recruitment processes evidence
that authorities include a margin for
correction of such human errors. This with
12 All. Raj Kumar Gupta Vs. State of U.P. & Ors.
635
a view to prevent ouster of meritorious and
eligible
candidates
and
faithful
implementation of reservation policy. This
also ensures fairness, transparency, and
makes the recruitment process compliant to
norms of justice. Calling for objections to
the provisional answers is an example of
this trend. The opportunity of providing an
appeal against medical board opinions, is
another
instance
of
creation
of
an
environment to reduce exclusion of eligible
candidates by human errors.

13. Of course, such opportunity
should not adversely affect the recruitment
schedule. The avenues of appeals or
provisions for an opportunity to rectify
marginal
human
errors,
should
be
incorporated in the recruitment process.
This moreso when aggrieved candidates are
undisputedly eligible for participating in
the recruitment.

14. The promise of equality under
Article 14 and equal opportunity in public
employment under Article 16 of the
Constitution of India do not pre-suppose
existence of a homogeneous society. On the
contrary both judicial authorities and
provisions in the Constitution like Article
16(4) reflect the quest of an egalitarian
Constitution
in
an
unequal
and
heterogeneous society to achieve equality.

15. To achieve the aim of equality
often requires representation to lawfully
classified
groups
of
citizenry.
Exservicemen is one such category of
citizenry which has been organized as one
well defined class by the legislature and the
executive alike. There is good reason for
classification of ex-servicemen into a
separate class. Ex-servicemen as a class
have spent prime years of their lives in
conditions of extreme privations and
separations from family in the service of
the nation. Long years of coloured service
in the armed forces ingrain in them the
ethos of service before self. The Indian
Armed Forces are amongst the most
professional and best trained in the world.
National treasure is spent in training of
servicemen to achieve peak levels of
proficiency. Rites of defence services equip
the servicemen to reach highest standards
of excellence and leadership in different
walks of life.

16. With this rich background behind
them, servicemen after hanging up their
uniforms turn into most valuable national
assets. The nation must derive full benefit
from the values imbibed over long years of
coloured service, professional training and
leadership qualities.

17. Ex-servicemen are well placed to
make peerless contribution to the civil
services including the civil police services.
The nation cannot afford to fritter away or
lose these assets by bad policy and arbitrary
decisions.

18. There is another aspect to the
matter.
Most
of
ex-servicemen
superannuate at an early age. They lose
their regular source of income at a young
age, when their responsibilities to their
families are at a peak.

19. By employing ex-servicemen the
State
achieves
manifold
objectives.
Reemployment
after
superannuation
absorbs the turbulence arising from early
superannuation from military service. It
also helps in the integration of armed forces
personnel
in
civil
society
after
superannuation. They become part of the
mainstream of national life. This policy
supports the morale of our defence forces,
636 INDIAN LAW REPORTS ALLAHABAD SERIES
and channelizes energies of young exservicemen in a positive direction.

20. The welfare of ex-servicemen can
never be neglected by any society which
values its freedom. A nation such as ours
which has suffered from long centuries of
foreign rule, and faces extant security
threats cannot ignore the custodians of the
sovereignty and integrity of the nation. The
ex-servicemen
did
not
have
much
representation in the State and were denied
a
proper
look
in
into
the
civil
administration. This created a sense of
isolation, which was not in the interest of
the nation. The State Government is doing
its part by making endeavours to rectify
this anomaly. Though more needs to be
done, much undoubtedly has been done.

21. Principles evolved by courts for
administering benefits of reservation to
various communities, can also be applied to
the class of Ex-Servicemen. Reservation
cannot be construed by the authorities in a
pedantic manner. It has to be implemented
in a fashion to achieve the object of
reservations.

22. In the facts of this case the denial
of the benefits of ex-Servicemen, to the
petitioner was not on the ground that he did
not possess the domicile certificate which
was consistent with the terms of the
advertisement. But because he could not
produce it at the time of scrutiny of
documents.

23. In this case the recruitment
programme is yet to attain finality.
 Nothing has been asserted in the counter
affidavit that the grant of a short time or an
opportunity to the petitioner to produce the
requisite domicile certificate will create
disarray in the recruitment process.

24. On the contrary, the refusal of the
authorities to grant such opportunity to the
petitioner, resulted in a failure on part of
the authorities to implement the policy of
reservation for ex-servicemen with an even
hand.

25. The petitioner is an ex-serviceman
who retired after years of coloured service
in the Indian Army on the rank of
Hawaldar on 31.12.2018. He was a Gunner.
The respondents were liable to give him
another
opportunity
to
produce
the
domicile
certificate
dated
08.02.2018.
Particularly, since the validity of the
aforesaid certificate was not disputed.

26. In light of the preceding
discussions, I find that the respondents
erred in law by failing to grant the
petitioner an opportunity to produce the
eligibility certificate dated 08.02.2018,
which he claims is in his possession.

27. The action of the authorities in
denying the benefit of ex-servicemen
category to the petitioner is arbitrary and
illegal.

28. In such view of the matter, the
matter is remitted to the respondent no.2Chairman, U.P. Police Recruitment and
Promotion Board, Lucknow.

29. A writ in the nature of mandamus
is issued commanding the respondent no.2Chairman, U.P. Police Recruitment and
Promotion Board, Lucknow, to execute the
following directions:

I. The petitioner shall be given five
weeks time to produce his domicile
certificate dated 08.02.2018.

II. The case of the petitioner shall be
processed as per law after considering the
12 All. Mohd. Majhar Vs. The State of U.P. & Ors.
637
domicile certificate dated 08.02.2018 and
ascertaining its authenticity.

30. The writ petition is allowed to the
extent indicate above.
----------
(2020)12ILR A637
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Writ A No. 4818 of 2020

Mohd. Majhar ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Yashwant Pratap Singh, Sri Sanjai Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - Pension and Gratuity -
Civil
Service
Regulations:
Regulations
351, 251A - The question for consideration
in the present case is as to whether the
State Government can direct for not
payment of pension and gratuity when the
departmental or judicial proceedings have
not yet been finalized. State Government
order dated 28.10.1980, provides that those
employees against whom on the date of
retirement departmental, judicial or proceedings
before Administrative Tribunal are proceeding or
it is necessary to draw such proceedings shall
be given interim pension, but gratuity be not
paid till finalization of the proceeding. The same
provision has again been reiterated by GO dated
28.07.1989, in which, reference has also been
made to the GO dated 28.10.1980. (Para 9)

It is admitted that charge-sheet was submitted
before the Court concerned in the matter, which is
still pending consideration. The date of retirement
of the petitioner is 31.12.2019, it is, thus, clear
that on the date of retirement, judicial proceeding,
as contemplated in Regulation 351A of Civil Service
Regulations, have not been instituted against the
petitioner. Under the circumstances, in bereft of
any such proceeding, relying on the GO dated
28.10.1980, the pension and gratuity of petitioner
cannot be stopped, whereas, final report has been
submitted before the Competent Court on
16.9.2019 and the same has not been negated by
the Court concerned. (Para 10,11)

The State Government was not justified in not
paying the pension and gratuity to the
petitioner. However, it is made clear that in case
the petitioner is convicted in the criminal case
pending against him, the Government is fully
empowered
to exercise its power under
Regulation 351 to withhold or withdraw the
pension or any part of it. (Para 12)

Writ Petition allowed. (E-4)

Precedent cited:

1. H.C. Sughar Singh (Retired) Vs Deputy Inspector
General of Police (Establishment), 2004 LawSuit (All)
236 dated 27.02.2004 (Para 4)

2. Kameshwar Prasad Vs St. of U.P. & ors., W.
P. No. 21773/2009 dated 25.04.2011 (Para 4)

Present petition challenges order dated
18.11.2019, passed by Superintendent of
Police, Maharajganj.

(Delivered by Hon'ble Shekhar Kumar Yadav, J.)

1. To assail correctness of the order
impugned dated 18.11.2019 passed by the
respondent no.3-Superintendent of Police,
Maharajganj, whereby regular pension and
gratuity of the petitioner has been stopped
by taking plea that a criminal case being
No.767A/2014, under Sections 147, 323,
504, 506, 307, 352 and 392 I.P.C., Police
Station Jataha Bazar, District Kushinagar,
which is still pending against him, the
instant writ petition has been filed.

2. Briefly, the facts of the present case
are that on 01.11.1978 initially the