# Rajesh Sharma v. Advocate General U.P. High Court

- **Citation:** (2003) 1 ILRA 55
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-12-12
- **Case number:** Special Appeal No. 1038 of 2001
- **Bench:** G.P. Mathur, A.C.J. Y.R. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-sharma-v-advocate-general-u-p-high-court-40058
- **Pages:** 5

## Headnote

Constitution of India, Act 226 Writ
Petition - Ad hoc appointee challenged
the action of state law officer or
remaining them from service undoubtly
the salary being given from the fund of
govt. - in absence of State Government -
No positive direction can be issued.

Held - Para 7 & 10

It would also be pertinent to point out
that any direction of this court in writ
petition
can
not
be
enforced
or
implemented in absence of the State of
Uttar Pradesh as a party to the writ
petition. A person removed from the
State law Officers Establishment has
right to appeal to the State Government,
and, therefore, the Advocate General
being the appointing authority is not the
final authority in the matter of removal
or dismissal of the employees of State
Law Officers Establishment and the State
Government has the power to reverse his
orders in appeal. Besides, it is the State
Government which allocates the budget
from which the employees of the State
Law Officers Establishment draw their
salaries and other allowances. Therefore,
no effective direction could be made and
order passed in the writ petition in
absence of State of Uttar Pradesh.

True, the Apex Court in various cases has
expressed its concern over increasing
disregard and by passing of statutory
rules in recruitment proceedings and this
case also appears to one of such cases
but we are constrained to observe that
the petitioner having neither impleaded
necessary and proper parties nor having
come up with correct facts squarely to
blame himself. To our mind, therefore it
was not a fit case for exercise of extraordinary writ jurisdiction under Article
226 of the Constitution.

## Text

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1 All] Rajesh Sharma Vs. Advocate General U.P. High Court
55
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2002

BEFORE
THE HON'BLE G.P. MATHUR, A.C.J.
THE HON'BLE Y.R. TRIPATHI, J.

Special Appeal No. 1038 of 2001

Rajesh Sharma

...Appellant
Versus
Advocate General U.P. High Court

 ...Respondents

Counsel for the Appellant:
Sri Rajesh Sharma
Sri P.C. Srivastava
Sri S.C. Tiwari

Counsel for the Respondents:
Sri Vinod Mishra, S.C.

Constitution of India, Act 226 Writ
Petition - Ad hoc appointee challenged
the action of state law officer or
remaining them from service undoubtly
the salary being given from the fund of
govt. - in absence of State Government -
No positive direction can be issued.

Held - Para 7 & 10

It would also be pertinent to point out
that any direction of this court in writ
petition
can
not
be
enforced
or
implemented in absence of the State of
Uttar Pradesh as a party to the writ
petition. A person removed from the
State law Officers Establishment has
right to appeal to the State Government,
and, therefore, the Advocate General
being the appointing authority is not the
final authority in the matter of removal
or dismissal of the employees of State
Law Officers Establishment and the State
Government has the power to reverse his
orders in appeal. Besides, it is the State
Government which allocates the budget
from which the employees of the State
Law Officers Establishment draw their
salaries and other allowances. Therefore,
no effective direction could be made and
order passed in the writ petition in
absence of State of Uttar Pradesh.

True, the Apex Court in various cases has
expressed its concern over increasing
disregard and by passing of statutory
rules in recruitment proceedings and this
case also appears to one of such cases
but we are constrained to observe that
the petitioner having neither impleaded
necessary and proper parties nor having
come up with correct facts squarely to
blame himself. To our mind, therefore it
was not a fit case for exercise of extraordinary writ jurisdiction under Article
226 of the Constitution.

(Delivered by Hon'ble Y.R. Tripathi, J.)

1. These special appeals raising
common questions of law and facts arise
out of the judgment and order dated 20th
August,2001 passed by learned Single
Judge of this court in Civil Misc. Writ
Petition No. 17432 of 1999 Rajesh
Sharma Versus Advocate General U.P.
and others, whereby he having partly
allowed the writ petition has set aside the
selection of Shri K.K. Shastri, respondent
no.2 to the writ petition, on the post of
Routine Grade clerk/Typist in the State
Law Officers Establishment and has given
a direction that the vacancy caused as a
consequence of setting aside selection of
Shri K.K. Shastri be filled from the next
candidate in the merit list and if the next
in the merit list is not available or does
not choose to take appointment, then from
next to next in the merit list.

2. Skeleton facts necessary to get
hand of the real controversy as also to
appreciate the discussions hereinafter are
that there were certain vacancies of
routine grade clerks/typist in the state law
officers
establishment
against
which
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56 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
certain appointments were made by the
Advocate General on adhoc basis by way
of
stop
gap
arrangement
.
This
arrangement was questioned in writ
petition no 42506 of 1993 Shiv Pratap and
another vs. State of U.P. and others on the
ground of malafide, bias and arbitrariness
praying, in substance, for issuance of
directions to the respondents to the writ
petition to remove the adhoc appointees
and fill up the vacancies by permanent
appointments in accordance with law.
This court while finally disposing of that
writ petition rejected the relief of removal
of adhoc appointees holding it as stop gap
arrangement to cope with the pressure of
work in Advocate General office but
directed regular appointments to be made
after sanction of the strength of the
establishment by the state government in
light
of
suggestions
made
by
the
Advocate General after giving equal
opportunities to all concerned. It appear
that subsequent to the disposal of writ
petition no. 42506 of 1993, in the year
1996 some steps for selection and
appointment to fill up the vacancies in
State Law officers Establishment were
initiated and call letters for interview were
issued to certain candidates which came
up in controversy again before this court
in writ petition no. 37504 of 1996 Narain
Dutt Tripathi Vs. State of U.P. & others.
The Advocate General, Uttar Pradesh in
the aforesaid writ petition gave an
undertaking to follow the procedure
prescribed under law. In view of the said
undertaking of the Advocate General,
U.P. the writ petition was disposed of
with certain directions as to the manner of
advertisement of vacancies ignoring the
call letters already issued. It was also
made clear by this court in the said writ
petition that the candidates to whom call
letters had been issued could have right to
make applications, if they so choose, in
response to the advertisement.

3. As it transpires from the perusal
of the record, twenty posts of Routine
Grade clerks/typists, four to be filled from
amongst
candidates
of
Scheduled
castes/tribes, six from the candidates
belonging to other backward classes of
citizens and ten from general classes,
were advertised inviting applications from
candidates
fulfilling
the
requisite
qualifications.
In
response
to
the
advertisement as many as 3107 candidates
including the petitioner and respondent
no. 2 to the writ petition and 7 others,
who were already working as adhoc
appointees in the office of State Law
Officers
Establishment,
made
their
applications and appeared at the written
test held on 30.08.1998 and the petitioner
and 110 other candidates, in all, including
the candidates belonging to Schedules
Castes/Tribes and other backward classes
of citizens were declared successful at the
written examination and were called for
type test and interview scheduled to be
held on 24th and 25th October, 1998. The
roll nos. of respondent no. 2 Sri K.K.
Shastri and Shri Kailash Nath Prajapati
who were working in the State Law
Officers
Establishment
as
adhoc
appointees did not figure in the declared
list of successful candidates at the written
examination. They were, however, called
for test and interview and on the basis of
marks obtained by each candidate, a
select list of twenty candidates, according
to their merit, ten from amongst general
candidates, four from amongst candidates
belonging to other backward classes was
prepared to fill up twenty existing
vacancies of R.G.C.'s/typists and the
candidates
so
selected
were
given
appointments.
The
petitioner
having
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1 All] Rajesh Sharma Vs. Advocate General U.P. High Court
57
failed to find place in the final select list
of twenty candidates challenged the
selection and appointment of respondent
no. 2 Sri K.K. Shastri on grounds,
interalia
of
bias,
discrimination,
arbitrariness, foul play etc. and prayed for
inclusion of name in the select list and
consequently for his being appointed in
the vacancy created as a consequence of
setting aside the appointment of Shri
Shastri. It is worth mentioning that the
petitioner is down in merit to fifteen other
candidates who neither did figure in the
select list nor could be appointed.

4. The respondents contested the
writ petition by filing their counter
affidavits denying allegations of malafide,
foul play discrimination and arbitrariness
and claiming fair selection of candidates
on merits in accordance with law and the
rules. The learned Single Judge, however,
on appraisal of materials before him
found the selection of Shri K.K. Shastri
illegal and violative of Article 16 of the
Constitution and passed the impugned
judgment and order. The petitioner
dissatisfied from the direction of the
learned Single Judge to fill up the
vacancy created as a consequence of
setting aside the appointments of Shri
Shastri from candidate next in merit and
the respondents aggrieved from the
finding of Shri Shastri's appointment
being declared illegal and violative of
Article 16 of the Constitution have come
up in these special appeals.

5. We have heard the learned
counsel for the parties in extenso and
have gone through the records.

6. It is undisputed that the persons
employed as R.G.C's/typists in the State
Law Officers Establishment work in
connection with the affairs of the State
and hold civil posts within the meaning of
Article 311 of The Constitution. Such
incumbents are paid their salaries from
the budget passed by the State legislature
and allocated by the State Government.
The constitutional position of Advocate
General hardly has any relevance so far as
the status of such employees is concerned.
The State Legislature, therefore, under
Article 309 of the Constitution has the
power to regulate the recruitment and
conditions of service of person appointed
to the State Law Officers Establishment
and in absence of any law made by State
legislature, the Governor of the State or
such other person as he may authorize has
the power to make rules regulating the
recruitment and conditions of service of
such persons and any rules so made have
the effect subject to any law made by the
State Legislature. In the writ petition in
question, it would appear, that the correct
facts were not brought to the notice of the
court evidently because the State of Uttar
Pradesh having ultimate administrative
control
over
State
Law
Officers
Establishment and being necessary party
was not impleaded. During the course of
arguments our attention was drawn
towards Karmic Anubhag-2, Notification
No. 20/1/19/TC-97 dated June 9,1998
published in the U.P. Gazette, Extra Part
(4) Section (Ka) dated 9th June,1998
whereby Uttar Pradesh Procedure for
Direct Recruitment for Group 'C' post
(Outside the purview of the Uttar Pradesh
Public Service Commission) Rules, 1998
have been notified. These rules according
to the Gazette Notification came into
force at once. Rule (2) of these rules
provides that these rules shall have effect
notwithstanding anything to the contrary
contained in any other rules or orders.
Sub-Rule (3) of Rule 1 of these Rules
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58 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
excludes from its operation certain posts
and departments mentioned therein. It is
not
disputed
that
the
posts
of
R.G.C.'s/typists fall within group 'C'.
This being the position, the aforesaid
Rules appears to have been applicable to
the recruitment of RG.C's /Typist in the
State Law Officers Establishment and had
the effect of law, but none of the parties to
the writ petition referred to the said Rules
and instead, a reference was made about
the applicability of The United Provinces
Legal Remembrance's and law officers
Establishment Rules, 1942 which were
pre- constitution Rules and even if they
were applicable to the recruitment of
R.G.C.'s/typists in State Law Officers
Establishment at any point of time stood
superceded by Rule(2) of the Uttar
Pradesh Procedure for Direct Recruitment
for Group 'C' posts (Outside the purview
of the Uttar Pradesh Public Service
Commission)
Rules,
1998,
which
provides for those rules having overriding
effect. The said Rules of 1998 having
been published in Uttar Pradesh Extra
Ordinary Gazette can be taken judicial
notice of and they having come into force
on 9th of June,1998 were applicable to the
disputed selection of R.G.C.'s/typists.

7. It would also be pertinent to point
out that any direction of this court in writ
petition
can
not
be
enforced
or
implemented in absence of the State of
Uttar Pradesh as a party to the writ
petition. A person removed from the State
law officers Establishment has right to
appeal to the State Government, and,
therefore, the Advocate General being the
appointing authority is not the final
authority in the matter of removal or
dismissal of the employees of State Law
Officers Establishment and the State
Government has the power to reverse his
orders in appeal. Besides, it is the State
Government which allocates the budgets
from which the employees of the State
Law Officers Establishment draw their
salaries and other allowances. Therefore,
no effective direction could be made and
order passed in the writ petition in
absence of State of Uttar Pradesh, which
is a necessary party. In the writ petition
Nos. 43506 of 1993 and 3754 of 1996
filed earlier the State of U.P. had been
arrayed as one of the respondents and a
direction had also been made to it by this
court
to
sanction
the
strength
of
ministerial staff in the State Law Officers
establishment in the light of suggestions
of Advocate General.

8. It would then next be found that
Article 226 confers an extra-ordinary
jurisdiction on the High Courts, to be
resorted
to
only
when
exceptional
circumstances warrant it. The grant of
writ under article 226 of the Constitution
is purely discretionary and can seldom be
claimed as of right. The provisions
contained under Article 226 are for
advancement of ex debito Justitiae and
can be invoked only on equitable
considerations. In the writ petition in
question the petitioner had challenged the
select list on the ground of bias,
discrimination, malafides etc. and had
originally sought the relief for declaring
the selection of respondent no. 2 and one
Shri Kailash Nath Prajapati in whose
cases discrimination had allegedly been
made, bad in law, but during the
proceedings the name of Shri Kailash
Nath Prajapati, whose case almost stands
on the same footing as that of the
respondent no. 2, was deleted from the
array of respondents. Thus even if the
petitioner succeeded in proving illegality
in the selection and appointment for
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1 All] Rahman Siddiqui Vs. State of U.P. and others
59
respondent no. 2 that infirmity cannot be
done away with by declaring the selection
and appointment of only respondent no. 2
as illegal as even after such a declaration
the said illegality will exist in the case of
selection and appointment of other
candidates. The relief under Article 226
of the Constitution being discretionary
could be granted for removing the
illegality, if any, and not for perpetuating
it. In this case even after declaring the
selection and appointment of respondent
no. 2, as illegal some other candidates
having been selected and appointed in the
same manner will still continue in service
because of their not being made parties.
The grant of relief to the petitioner thus
will shake public faith in dispensation of
justice and also impair the credibility of
judicial system in the country. There is,
therefore, no justification for setting aside
the selection of respondent no. 2 only
when
some
similarly
selected
and
appointed candidates shall still continue
on their posts.

9. It is also worth while to point out
that the petitioner's name appears at 26th
position in the merit list of the candidates.
Fifteen candidates thus stand higher in
position to the petitioner. Even after
declaring the selection and appointment
of respondent no. 2 as illegal, it would be
quite unjust, unfair and improper to make
a direction for his appointment as a
consequence of vacancy created by
setting
aside
the
selection
and
appointment of respondent no. 2. The
candidates holding positions above the
petitioner in the merit list have not been
made parties and no order can legally be
passed against them either in the writ
petition or in the appeals in their absence.

10. True, the Apex Court in various
cases has expressed its concern over
increasing disregard and by-passing of
statutory rules in recruitment proceedings
and this case also appears to be one of
such cases but we are constrained to
observe that the petitioner having neither
impleaded necessary and proper parties
nor having come up with correct facts has
squarely to blame himself. To our mind,
therefore it was not a fit case for exercise
of extra-ordinary writ jurisdiction under
Article 226 of the Constitution.

For the reasons stated above, we find
that the impugned order passed by the
learned Single Judge in Writ petition No.
17432 of 1999 cannot be sustained and
has to be set aside.

We, accordingly, find force in the
Special Appeal Nos. 1054 of 2001 and
1100 of 2001 and setting aside the order
impugned in these Special Appeals
dismiss the writ petition No. 17432 of
1999. The Special Appeal No. 1038 of
2001 being devoid of merit is, hereby,
dismissed.

In
view
of
the
facts
and
circumstances of the case, we make no
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2002

BEFORE
THE HON'BLE G.P. MATHUR, A.C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 8094 of 2001

Rahman Siddiqui

...Petitioner
Versus
State of U.P. and others ...Respondents