# Rohit Sharma & Anr v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 893
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-04
- **Case number:** Writ A No.13670 of 2021
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rohit-sharma-anr-v-state-of-u-p-ors-49284
- **Pages:** 8

## Headnote

Law
-
U.P.
Police
Computer
Operator (Non- Gazetted) Staff Service
Rules 2011-Rule 15 (4)-Petitioners applied
for Computer Operator-secured a little lower
than the cut off marks-out of advertised
posts-130 seats were still vacant-claim to fill
the remaining vacant post-no provision for
preparation of waiting list in Rules, 2011.

Held, It is settled position of law that in
absence of any specific provision for waiting
list and on the contrary, there being specific
provision that there shall not be any waiting
list and that the posts remaining unfilled on
any ground shall have to be carried forward
for the next recruitment. The candidates
lower in merit than that last selected
candidate
have
no
right
to
claim
for
appointment on vacancies left unfilled due to
non joining of the selected candidates. (para
33)

W.P. dismissed. (E-9)

List of Cases cited:

## Text

9 All. Rohit Sharma & Anr. Vs. State of U.P. & Ors.
893

We quantify the cost to Rs.
20,000/- for each of the petitioners herein,
which shall be deposited by them in the
Registry of the High Court within a period
of one month from today.

The cost so deposited by the
petitioners shall be transmitted in the
accounts of the High Court Legal Services
Committee.

With the above directions, the
writ petition is dismissed being devoid of
merits.
----------
(2022) 9 ILRA 893
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.05.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ A No.13670 of 2021

Rohit Sharma & Anr. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Sri Rishi Kant Singh Chauhan, Sri Ashok
Khare (Sr. Adv.)

Counsel for the Respondents:
C.S.C.

Civil
Law
-
U.P.
Police
Computer
Operator (Non- Gazetted) Staff Service
Rules 2011-Rule 15 (4)-Petitioners applied
for Computer Operator-secured a little lower
than the cut off marks-out of advertised
posts-130 seats were still vacant-claim to fill
the remaining vacant post-no provision for
preparation of waiting list in Rules, 2011.

Held, It is settled position of law that in
absence of any specific provision for waiting
list and on the contrary, there being specific
provision that there shall not be any waiting
list and that the posts remaining unfilled on
any ground shall have to be carried forward
for the next recruitment. The candidates
lower in merit than that last selected
candidate
have
no
right
to
claim
for
appointment on vacancies left unfilled due to
non joining of the selected candidates. (para
33)

W.P. dismissed. (E-9)

List of Cases cited:

1. Munja Praveen Vs St. of Telangana, passed
in Civil Appeal No. 10583 of 2017

2. Vatsyayan Shukla & anr. Vs St. of U.P. &
ors., passed in Writ A No.7494 of 2019, vide
order dated 30.07.2019

3. Vallampati Sathish Babu Vs St. of Andhra
Pradesh & ors., reported in 2022 SCC Online
SC 470
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J)

1. Heard Mr. Ashok Khare, learned
Senior Counsel assisted by Mr. Rishi
Kant Singh Chauhan, learned counsel for
the petitioners and Mr. Pranav Ojha,
learned
Additional
Chief
Standing
Counsel for the State-respondents.

2. Initially the writ petition has been
filed with the following prayer:-

"(i) Issue a writ, order or
direction in the nature of mandamus
directing respondents to fill up all the 81
posts of Computer Operator available due
to non joining of the selected candidates of
general category in pursuant to the
advertisement dated 23.02.2016.

(ii) Issue a writ, order or
direction in the nature of mandamus
894 INDIAN LAW REPORTS ALLAHABAD SERIES
directing respondents to consider the
vested, legitimate right of the petitioners
against posts fallen vacant due to non
joining of candidates."

3. The amendment application was
moved which was allowed by order dated
07.12.2021 and the amended prayer is as
follows:-

"(i) Issue a writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
05.08.2021 passed by Respondent no.3
(Annexure No.8) to the writ petition to the
extent of not considering petitioners for
appointment against the available left out
60 posts."

4. Brief of the facts are that, the U.P.
Police Recruitment and Promotion Board,
Lucknow issued an advertisement dated
23.02.2016 notifying the recruitment of 1865
posts of U.P. Police Computer Operator. The
petitioners belonging to general category,
being fully qualified and eligible, applied for
consideration, pursuant to the aforesaid
advertisement. The petitioners were issued
admits cards and after appearing in the
written examination, they have declared
successful and thereafter, they have also
appeared in computer typing test. The final
result/select list of the selection was
published and after declaration of result the
cut-off merit with regard to the individual
categories of finally selected candidates were
also notified on 21.12.2016.

5. From the perusal of the aforesaid cutoff merit, it is apparent that the last selected
candidate in General category has secured an
aggregate of 113.75 marks, the candidate
selected under the O.B.C. category has
secured 90 marks and the candidate
belonging to Schedule Caste category has
secured 80 marks whereas the candidate
under dependent of Freedom Fighter category
has secured 95 marks and for females the cutoff marks is 81.25.

6. It is very much clear from the
aforesaid cut-off marks that the petitioners
have secured marks a little bit lower than the
last selected candidate in the General
category.

7. The selection in question is being
done as per provisions of U.P. Police
Computer Operator (Non-Gazetted) Staff
Service Rules 2011 which was amended by
first amendment of Rule 2015 (in short 2011).
The petitioners being a little lower than in
marks could not be selected as the
respondents have taken stand that there is no
provision for preparation of waiting list in
U.P. Police Computer Operator (NonGazetted) Staff Service Rules 2011.

8. Learned counsel for the petitioners
submits that out of total 1592 advertised posts
only 1462 candidates have turned up for
document verification meaning thereby 130
seats were still vacant which is also apparent
from the letter dated 31.01.2019 as 130
vacant seats were available due to non
turning up of candidates for documents
verification. The aforesaid seats should have
been filled by the number of petitioners being
next in merit.

9. Due to non consideration of claim of
the petitioners, Writ Petition No.23016 of
2017 was filed and the Hon'ble Court, vide
order dated 03.12.2019 was pleased to allow
the writ petition and direct the respondents to
consider the claim of the petitioners against
unfilled vacancies.

10. The operative portion of the order
dated 03.12.2019 is as follows:-
9 All. Rohit Sharma & Anr. Vs. State of U.P. & Ors.
895

"Accordingly, with the consent of
parties of present writ petition as well as
other connected, all the writ petitions are
disposed of asking the Competent Authority
to look into the grievance of the petitioner
and in case vacancies are still available
and the petitioners fall in the zone of
consideration, their claim be decided in the
light of the observations so made in
Vatsyayan Shukla (supra), expeditiously,
preferably within a period of two months
from the date of production of certified
copy of this order."

11. The
aforesaid order dated
03.12.2019 was challenged by the State by
means of filing Special Appeal No.1181 of
2021 and the Hon'ble Court has been
pleased not to interfere in the order passed
by the learned Single Judge.

12. The operative portion of the order
dated 08.02.2021 passed in Special Appeal
is as follows:-

"It is in view of the fact that on the
cut off marks of open category, there were
73 candidates out of which 21 were given
appointments based on the age as none of
them were having preferential qualification.
It is a fact that out of the total candidates
offered appointment, 81 open category
candidates did not join the post. The list of
the candidates scored same marks could
have been used for giving appointment as
the list of those candidates was available
thus list of candidates next in the merit was
not required to be called. There would be no
purpose to keep post vacant in a case where
there are number of candidates scored same
marks. It is not a case where the department
was not having the list of the candidates who
can be offered appointment which otherwise
remain in the shape of waiting list and to be
called.

The case has peculiarity and
thereby we find no reason to cause
interference in the judgment passed by
learned Single Judge but it need to clarify
that the judgment of learned Single Judge
would not be treated as precedent. It is not
only for the reason that the case has
peculiarity as more than 73 candidates
scored same marks in the selection and list
of those was available. The direction in this
case cannot be made applicable in general
and
therefore
while
not
causing
interference in the judgment and order of
learned Single Judge, it is made clear that
this judgment would not be treated as
precedent."

13.

Against
the
order
dated
08.02.2021, passed in Special Appeal, State
Government filed S.L.P. before the Hon'ble
Apex Court, which has been dismissed by
order dated 19.07.2021.

14. In compliance of the aforesaid
orders of this Court, the respondents
published the names of only 21 candidates
against the 81 vacant posts of General
category
on
05.08.2021,
leaving
60
candidates of General category during
training period. The petitioners approached
the respondents by means of filing the
representation which has been rejected by
the impugned order dated 05.08.2021,
hence, the present petition has been filed.

15.

Learned
counsel
for
the
petitioners submits that the respondents
have rejected the claim of the petitioners,
ignoring the relevant fact that posts are still
lying vacant due to non joining of some
candidates.
While
passing
the
order
impugned, the respondents have ignored
the settled legal position that posts covered
by particular advertisement are required to
be filled up on the basis of remaining merit
896 INDIAN LAW REPORTS ALLAHABAD SERIES
list so prepared and any such vacant posts
are covered by same advertisement.

16.

Learned
counsel
for
the
petitioners submits that it is settled
principle of law that selections starts with
the advertisement and ends with issuance
of appointment letters, hence, any posts
which has following vacancy prior to
issuance of appointment letter shall not be
notified for next recruitment so far. In
support of his submission, learned counsel
for
the
petitioners
relied
upon
the
judgement of Munja Praveen Vs. State of
Telangana, passed in Civil Appeal No.
10583 of 2017.

17. There is no prohibition in Rules
for preparation of the waiting list, hence,
the petitioners who are next in merit list
were to be considered for being appointed.

18.

Learned
counsel
for
the
petitioners further submits that the posts as
advertised cannot be left vacant without
any rhyme or reason and there should be
plausible reason for not filling up such
posts. It is also settled legal position that
posts covered by particular advertisement
are required to be filled up on the basis of
remaining merit list prepared in pursuance
thereto.

19.

Learned
counsel
for
the
petitioners submits that in the present case
60 candidates did not turn up against 81
posts having the same cut-off marks, hence,
the petitioners being next in merit of legal
right to be appointed in all such vacant
posts. The case of the petitioners was to be
decided in the light of Vatsyayan Shukla
And Another Vs State of U.P. And 5
Others, passed in Writ A No.7494 of
2019, vide order dated 30.07.2019, wherein
it has been held that in case vacancies
remain available due to non joining of
selected candidates, the authorities are
expected to fill up the posts from the
candidates next in the order of merit and
their claim cannot be rejected only on the
ground that the waiting list has not been
prepared.
He
further
submits
that
petitioners have acquired knowledge to be
appointed against the advertised posts
which remains unfilled due to non joining
of
the
candidates
who
were
more
meritorious than him. The concept of
waiting list cannot brought in picture for
defeating the legitimate right of such
candidates against unfilled posts.

20. He further submits that while
passing the impugned order the authorities
concerned
have
not
considered
the
observations as made in the case of
Vatsyayan Shukla and another wherein the
respondents were directed to consider the
claim of the appointment of the petitioners
without taking a plea that waiting list was
not prepared.

21. There is no justifiable reason for
not considering the candidature of the
candidates figuring in the comparative
merit list who was just below the selected
candidates who had not joined the posts.
Therefore, the impugned order is arbitrary,
discriminating and cannot be sustained in
the eyes of law, hence, the same may be set
aside.

22. Learned Standing Counsel on the
other hand submits that petitioner have
secured
112.50
marks
in
the
said
examination and the cut-off marks of
selected candidates was 113.75, therefore,
there is no question of considering the
claim of the petitioners who are less than
the cut-off marks as secured by the selected
candidates. He further submits that learned
Single Judge had directed the respondents
9 All. Rohit Sharma & Anr. Vs. State of U.P. & Ors.
897
to consider the claim of the petitioners in
the light of observations made in Vatsyayan
Shukla (supra) case wherein it was held
that in case vacancies remain available due
to non joining of selected candidates the
authorities were expected to fill up the
posts from the candidates next in order of
merit, whereas in the special appeal filed
against the aforesaid order, it was clarified
that on the cut-of marks of open category
there were 73 candidates out of which 21
were given appointment based on age as
none of them were having preferential
qualification. It was also mentioned that in
case 81 open category candidates did not
join the posts, the list of candidates who
had secured same marks was already
prepared, therefore, the candidates scoring
the same marks would have been used for
giving appointment as such a list of those
candidates were available, hence, the list of
next in merit was not required to be called.

23. Learned Standing counsel submits
that the appointment was to be offered to
those candidates who had secured same
marks,
as
secured
by
the
selected
candidates who had not joined and such a
list was already prepared, therefore, there is
no illegality in the order impugned wherein
claim of the petitioners has been rejected
on the ground that they had not secured
same marks as the selected candidates who
had not joined on the said post and there
was no need to prepare merit list or depend
on any waiting list for the same.

24. Learned Standing Counsel has
further clarified that as per the provisions
contained in the relevant Government
Service Rules, the selection process comes
to an end after issuance of the select list
and the appointments have to be made
from the said list only, there being no
provisions of preparation of any other list
for the purpose of considering the claim of
appointment of persons on unfilled posts
due to non joining of selected candidates.

25. Learned Standing Counsel
further submits that in the present case, the
marks obtained by the last selected
candidate
was
113.75
whereas
the
petitioners have secured only 112.50
which is less than the tie break marks,
hence,
they
cannot
be
selected,
considering the directions as issued by
Hon'ble Court in the writ petition as well
as in the Special Appeal relating to the
petitioners .

26. As per the directions of the writ
Court, the claim of the petitioners was to
be decided in the light of Vatsyayan
Shukla (supra) case wherein it has been
held that in case, vacancies remain
unfilled due to non joining of selected
candidates, the authorities are expected to
fill up the posts from the candidates next
in order and their claim cannot be rejected
only on the ground that waiting list has not
been prepared whereas in the Special
Appeal, the court has clarified the position
that the select list of the candidates
scoring same marks which was already
available, could have been used for giving
appointment in order to fill the vacancies,
arisen due to non joining of the selected
candidates. It is clear that the petitioners
had obtained less marks than that of the
last
selected
candidate
and
as
per
direction, only those candidates were to be
considered who had obtained 113.75
marks, hence, the petitioners cannot claim
parity of 113.75 tie break marks. The
petitioners
have
also
not
been
discriminated as the claim of similarly
situated candidates has already been
rejected by the respondents-authorities,
therefore, there is no illegality in the order
898 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned and no interference is required
by this Court.

27.

Learned
Standing
Counsel
submits that, as per the procedure for direct
recruitment to the post of Computer
Operator in Rule 15 of U.P. Police
Computer (Non-Gazetted) Staff Service
Rules 2011 as applicable, in the case of the
petitioners, the successful candidates shall
be placed higher and such candidates who
obtained equal marks the candidates having
preferential qualification shall be placed
higher, and such candidates as have
obtained
equal
marks
having
no
preferential qualification the candidates
senior in age shall be placed higher in the
list. Accordingly, as list was prepared and
appointments were given, based on age as
none of the candidates were having
preferential qualification, therefore, those
having equal marks were to be considered
for appointment on the vacancies left
unfilled due to non joining of the selected
candidates, as per the direction of the writ
court as well as special appeal court. Since,
the petitioners did not have equal marks as
obtained by the last selected candidates,
therefore, their claim has been rightly
rejected.

28. Heard learned counsel for the
parties and perused the material available
on record.

29. Before discussing the merit of the
case, it would be appropriate to quote the
procedure
for
direct
recruitment
as
provided in Rule 15 of U.P. Police
Computer (Non-Gazetted) Staff Service
Rules 2011. Rule 15 is as follows:-

15.
Procedure
for
Direct
Recruitment-- Procedure for recruitment
of Computer Operator Grade-A-

"(1) Direct recruitment to the post
of Computer Operator Grade-A in the
service shall be made through Uttar
Pradesh Police Recruitment and Promotion
Board, Lucknow.

The Board shall scrutinize the
applications
and
require
the
eligible
candidates
to
appear
in
a
written
examination and a Computer Typing
examination. Written examination will be
as under:

(2) Written Examination (200
marks) : written examination shall be of
objective type. Examination shall be of
total 200 marks. The written examination
paper shall consist of questions related to
General
Knowledge,
Mental
Ability,
Reasoning and Computer Science. The
level of question paper shall be according
to
the
level
of
minimum
required
educations qualification for the post.

Minimum 40 per cent marks are
must in the written examination. The
Selection Committee shall call successful
candidates
for
the
Computer Typing
Examination on the basis of merit in the
written examination, in such numbers as
required.

(3)
Computer
Typing
Examination (Qualifying)-- The Computer
Typing Examination shall be qualifying
examination.
Candidates
who
type
minimum 25 words per minute in Hindi
and 40 words per minute in English, shall
be declared successful in the Computer
Typing Examination.

(4)
The
Board
after
due
consideration of proper representation of
candidates according to the norms specified
for reservation, shall prepare a list from the
9 All. Rohit Sharma & Anr. Vs. State of U.P. & Ors.
899
list of successful candidates in Computer
Typing Examination, in order of their
marks obtained in written examination by
considering preferential qualification, and
recommend such number of candidates as it
considers necessary for appointment. Such
candidates who obtained equal marks the
candidates having preferential qualification
shall be placed higher and such candidates
as have obtained equal marks having no
preferential qulification, the candidate
senior in age shall be placed higher in the
list. The Board shall forward the list of
successful candidates to the Appointing
Authority."

30. Accordingly, the select list was to
be prepared from successful candidates in
Computer Typing Examination, in order of
their marks obtained in the written
examination by considering the preferential
qualification and in case of candidates who
obtained equal marks, the candidates
having preferential qualification were to be
placed higher whereas those candidates
who obtained equal marks having no
preferential qualification, the candidates
senior in age was to be placed higher in the
list.

31. Considering the aforesaid provision
in the present case, the list was prepared
based on age as none of the candidates were
having preferential qualification from such a
list, those candidates having marks 113.75
were declared successful and names were
recommended. When the selected candidates
from the said list did not join, the posts left
vacant due to the aforesaid, was to be filled
from the list as prepared according to Rule
15(4) of the aforesaid Act, which was already
available with the respondents authorities,
considering which, the petitioners having less
than 113.75 marks as per the tie break marks
were not eligible for being considered.

32. There is no provision for
preparation of any waiting list as per the
aforesaid rules, therefore, such a list of those
candidates who was not figuring in the
comparative merit list as already available,
could not be considered for appointment on
the posts by preparing another list of the
persons next in the merit.

33. It is settled position of law that in
absence of any specific provision for waiting
list and on the contrary, there being specific
provision that there shall not be any waiting
list and that the posts remaining unfilled on
any ground shall have to be carried forward
for the next recruitment. The candidates
lower in merit than that last selected
candidate have no right to claim for
appointment on vacancies left unfilled due to
non joining of the selected candidates. The
issue with respect to claim of candidates for
consideration of their appointment on unfilled
posts due to non joining of the selected
candidates came to be considered in the case
of Vallampati Sathish Babu Vs. State of
Andhra Pradesh and Others, reported in
2022 SCC Online SC 470, wherein the Apex
Court observed that even in case selected
candidates have not joined in the absence of
statutory rules, to the contrary, the employer
is not bound to offer the unfilled vacancy to
the candidates next below the said candidates
in the merit list. It has been held that in
absence of any provision the employer is not
bound to prepare waiting list in addition to
the panel of candidates to appoint candidates
from the waiting list, in case the candidates
from the panel could not join.

34. Erstwhile rightly interpreting the
directions as given by the writ Court and
special appeal court in case of the
petitioner, the claim of the petitioners has
been rejected on the ground that they did
not have the tie break marks as obtained by
900 INDIAN LAW REPORTS ALLAHABAD SERIES
the last selected candidates as the posts
which were vacant due to non joining of
the selected candidates was to be filled
from the list already available with the
respondents, wherein the petitioners have
obtained less than the tie break marks of
113.75.

35. In view of the aforesaid
discussion, this Court finds no good ground
to interfere in this matter.

36. Accordingly, the writ petition is
dismissed.
----------
(2022) 9 ILRA 900
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.09.2022

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Writ A No.18864 of 2016

Vanshraj Sharma ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Amar Nath Dubey, Sri Anurag Srivastava

Counsel for the Respondents:
C.S.C.

Petitioner seeks seniority from date of
getting salary-appointed on regular basis
in 1995-interim order for salary in 1994the
said
Writ
dismissed
for
non
prosecution-Petitioner not entitled for any
benefit except the salary as directed.

W.P. dismissed. (E-9)

List of Cases cited:

1. Kunhayammed & ors. Vs St. of Kerala & anr.;
(2000) 6 SCC 359
2. Civil Appeal No. 2417 of 2022; St. of U.P. &
ors. Vs Prem Chopra

3. Sanjay K. Sinha-II & ors. Vs St. of Bihar &
ors.; (2004) 10 SCC 734,

4. Rashi Mani Mishra & ors. Vs St. of U.P. & ors.;
2021 SCC Online SC 509

5. Malook Singh & ors. Vs St. of Punj. & ors.;
Civil Appeal No.6026-6028 of 2021
(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Sri Anurag Singh, learned
counsel for the petitioner and Sri Pratyush
Tripathi, learned Additional Chief Standing
Counsel.

2. By means of the present writ
petition, the petitioner has assailed the
order dated 13.07.2016 passed by the Chief
Conservator of Forest, Southern Region,
U.P.,
Allahabad,
by
which
the
representation of the petitioner dated
23.04.2016
has
been
rejected.
The
petitioner has further prayed for a direction
to the opposite party nos. 1 to 5 to provide
seniority to the petitioner from February
1994.

3. It would be apt to refer the brief
facts of the case for adjudication of the case
in hand. Initially, the petitioner was
engaged on daily wage basis on the post of
Driver in the Forest Department. He
approached this Court by means of Writ
Petition No.307(S/S) of 1994 claiming his
regularization. The interim order was
passed in the writ petition on 21.01.1994,
by means of which it was provided that the
opposite parties shall consider the matter of
regularization of the petitioner and the
petitioner shall be paid salary in the regular
scale of pay as admissible to the driver
until further orders. In pursuance thereof, a
Selection Committee was constituted and in