# Shaharoz Alam & Ors v. State of U.P. & Ors

- **Citation:** (2020) 11 ILRA 145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-22
- **Case number:** Writ-A No. 6711 of 2020
- **Bench:** Vivek Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shaharoz-alam-ors-v-state-of-u-p-ors-45377
- **Pages:** 13

## Headnote

A. Service Law - Pension - Uttar Pradesh
Retirement Benefits (Amendment) Rules,
2005; Uttar Pradesh Retirement Benefits
Rules, 1961; General Provident Fund
(Uttar
Pradesh)
Rules,
1985;
U.P.
Secondary Education Services Selection
Board Act, 1982: Section 33(c) - A person
whose name appears in the select list
does not acquire any indefeasible right of
appointment. Empanelment at the best is
a condition of eligibility for the purpose of
appointment and by itself does not
amount to selection or create a vested
right to be appointed. (Para 33, 34)

B. In a society which is governed by rule
of law, sympathies cannot override the
rules and regulations. (Para 32)

C. The ratio of one case cannot be
mechanically applied to another case
without having regard to the fact situation
and circumstances obtaining in two cases.
(Para 39, 40, 41, 42, 46)

D. While exercising the authority under
Articles
309,
310
and
311
of
the
146 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution of India, the terms of service
can be altered unilaterally by Government,
there is no vested contractual right for the
servant - In the present case, as has been
discussed above, recruitment was initiated on
06.01.2005,
results
were
declared
on
23.04.2005 followed by the medical examination
and document verification from 24.04.2005 and
therefore, definitely appointment orders were
issued after 24.04.2005 whereas the Rules of
2005 had become effective w.e.f. 01.04.2005
i.e., much before the date of declaration of even
the results of the petitioner. (Para 43)

E. Prospectivity of the Rules - It is settled
principle of law that a person attains rights in
the matter of service from the date of
appointment and not from the date of initiation
of the recruitment process. (Para 44, 48, 49, 52)

F. Power of judicial review can be
exercised in such matters only if it is
shown that the action of the employer is
contrary to any constitutional or statutory
provision or patently arbitrary or is
vitiated by mala fides - Petitioners neither
have been able to establish any mala fide,
arbitrariness or deliberate delay in the process
of recruitment. Petitioners have failed to make
out the case that the legislative and executive
action has failed to satisfy the twin test of
reasonable
classification
and
the
rational
principal co-related to the object sought to be
achieved. In absence of such pleadings and
submissions even on this ground petition is not
maintainable. Petitioners contention that due to
pendency of similar litigation delay has been
caused in issuance of appointment order is not
made out from record. (Para 45, 46, 47, 50, 51)

G. Dismissal of SLP does not mean that
the judgment of High Court has attained a
binding nature with the seal of approval of
the Supreme Court - Once leave is granted
but SLP converted into appeal is dismissed with
or without reasons, merger results and law is
declared. It is no longer permissible to move the
High Court by review and no Court, Tribunal or
Authority can express any opinion contrary to
the view taken by Supreme Court. Order
appealed against can be reversed, modified or
affirmed by the Supreme Court in exercise of
appellate jurisdiction at the second stage only
and not at the discretionary first stage of special
leave under Article 136 of the Constitution of
India. (Para 54, 55)

Writ petitions dismissed.

Precedent followed:

## Text

_Characters 0–39,857 of 42,992. This is a partial read: ask again with offset=39857 for what follows._

11 All. Shaharoz Alam & Ors. Vs. State of U.P. & Ors.
145
the importance of utmost rectitude in
candidates applying for appointment in the
police force by holding as under:

"12. So far as the issue of
obtaining
the
appointment
by
misrepresentation is concerned, it is no
more res integra. The question is not
whether the applicant is suitable for the
post.
The
pendency
of
a
criminal
case/proceeding
is
different
from
suppressing
the
information
of
such
pendency. The case pending against a
person might not involve moral turpitude
but suppressing of this information itself
amounts to moral turpitude. In fact, the
information sought by the employer if not
disclosed as required, would definitely
amount
to
suppression
of
material
information. In that eventuality, the service
becomes liable to be terminated, even if
there had been no further trial or the
person
concerned
stood
acquitted/discharged. (emphasis supplied)"

17.

Judged
in
light of
such
requirements of the police force, the
candidature of the petitioner was found to
be unsuitable for appointment in the police
force. The impugned order is not liable to
be interfered with.

18. In the wake of the preceding
discussion, I am not persuaded to exercise
the discretionary jurisdiction vested under
Article 226 of the Constitution of India to
interfere with the impugned order dated
28.01.2019. The impugned order dated
28.01.2019 is upheld.

19. The writ petition is liable to be
dismissed and is, accordingly, dismissed.
----------
(2020)11ILR A145
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2020

BEFORE

THE HON'BLE VIVEK AGARWAL, J.

Writ-A No. 6711 of 2020
And
Writ-A No. 6713 of 2020
And
Writ-A No. 6715 of 2020

Shaharoz Alam & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Hritudhwaj Pratap Sahi, Sri Samarath
Singh, Sri Sankalp Narain

Counsel for the Respondents:
C.S.C.

A. Service Law - Pension - Uttar Pradesh
Retirement Benefits (Amendment) Rules,
2005; Uttar Pradesh Retirement Benefits
Rules, 1961; General Provident Fund
(Uttar
Pradesh)
Rules,
1985;
U.P.
Secondary Education Services Selection
Board Act, 1982: Section 33(c) - A person
whose name appears in the select list
does not acquire any indefeasible right of
appointment. Empanelment at the best is
a condition of eligibility for the purpose of
appointment and by itself does not
amount to selection or create a vested
right to be appointed. (Para 33, 34)

B. In a society which is governed by rule
of law, sympathies cannot override the
rules and regulations. (Para 32)

C. The ratio of one case cannot be
mechanically applied to another case
without having regard to the fact situation
and circumstances obtaining in two cases.
(Para 39, 40, 41, 42, 46)

D. While exercising the authority under
Articles
309,
310
and
311
of
the
146 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution of India, the terms of service
can be altered unilaterally by Government,
there is no vested contractual right for the
servant - In the present case, as has been
discussed above, recruitment was initiated on
06.01.2005,
results
were
declared
on
23.04.2005 followed by the medical examination
and document verification from 24.04.2005 and
therefore, definitely appointment orders were
issued after 24.04.2005 whereas the Rules of
2005 had become effective w.e.f. 01.04.2005
i.e., much before the date of declaration of even
the results of the petitioner. (Para 43)

E. Prospectivity of the Rules - It is settled
principle of law that a person attains rights in
the matter of service from the date of
appointment and not from the date of initiation
of the recruitment process. (Para 44, 48, 49, 52)

F. Power of judicial review can be
exercised in such matters only if it is
shown that the action of the employer is
contrary to any constitutional or statutory
provision or patently arbitrary or is
vitiated by mala fides - Petitioners neither
have been able to establish any mala fide,
arbitrariness or deliberate delay in the process
of recruitment. Petitioners have failed to make
out the case that the legislative and executive
action has failed to satisfy the twin test of
reasonable
classification
and
the
rational
principal co-related to the object sought to be
achieved. In absence of such pleadings and
submissions even on this ground petition is not
maintainable. Petitioners contention that due to
pendency of similar litigation delay has been
caused in issuance of appointment order is not
made out from record. (Para 45, 46, 47, 50, 51)

G. Dismissal of SLP does not mean that
the judgment of High Court has attained a
binding nature with the seal of approval of
the Supreme Court - Once leave is granted
but SLP converted into appeal is dismissed with
or without reasons, merger results and law is
declared. It is no longer permissible to move the
High Court by review and no Court, Tribunal or
Authority can express any opinion contrary to
the view taken by Supreme Court. Order
appealed against can be reversed, modified or
affirmed by the Supreme Court in exercise of
appellate jurisdiction at the second stage only
and not at the discretionary first stage of special
leave under Article 136 of the Constitution of
India. (Para 54, 55)

Writ petitions dismissed.

Precedent followed:

1. Satyesh Kumar Mishra and others Vs. State of
U.P. and others, 2016 (6) ADJ 808 (LB) (Para
31)

2. Sudhir Kumar Kansal Vs. Allahabad Bank,
2011 (2) ESC 243 (Para 31)

3. Smt. Rakhi Ray and others Vs. High Court of
Delhi and others, 2010 (2) SCC 637 (Para 31)

4. Vijoy Kumar Pandey Vs. Arvind Kumar Rai and
others, 2013 (11) SCC 611 (Para 31)

5. Bhavnagar University Vs. Palitana Sugar Mills,
(2003) 2 SCC 111 (Para 39)

6. Bharat Petroleum Corporation Ltd. and another
Vs. N.R. Vairamani and another, AIR 2004 SC 778
(Para 40)

7. P.S. Rao Vs. State, JT 2002 (SC) 1 (Para 41)

8. Rafiq Vs. State, 1980 SCC (CRL) 946 (Para 42)

9. Roshan Lal Tandon Vs. Union of India and
others, AIR 1967 SC 1889 (Para 43)

10. Tagin Litin Vs. State of Arunachal Pradesh and
others, (1996) 5 SCC 83 (Para 44)

11. Divisional Manager, Aravali Golf Club and
another Vs. Chander Hass and another, (2008) 1
SCC 683 (Para 45)

12. Ashwani Kumar Singh Vs. U.P. Public Service
Commission and others, (2003) 11 SCC 584 (Para
46)

13. Official Liquidity Vs. Dayanand and others,
(2008) 10 SCC 1 (Para 47)

14. Odisha through Secretary, Commerce and
Transport Department, Bhubaneswar Vs. Hare
Prasad Das and other, (1998) I SCC 487 (Para
48)
11 All. Shaharoz Alam & Ors. Vs. State of U.P. & Ors.
147
15. General Manager Uttaranchal Jal Sansthan
Vs. Laxmi Devi and others, (2009) 7 SCC 205
(Para 49)

16. Kunhayammed & Others Vs. State of Kerala
& Another, 2000 (6) SCC 359 (Para 54)

Precedent distinguished:

1. Mahesh Narayan and others Vs. State of U.P.
and others, 2020 (2) ALJ 518 (Para 11)

2. Ashutosh Joshi & others Vs. State of
Uttrakhand and others, WP (S/S) No. 1170 of
2010 (Para 23)

3. Balwant Singh and Others. Vs. State of
Uttarakhand and Others., WP Nos. 16 and 944
of 2011 (S/S) (Para 24)

4. Inspector Rajendra Singh and others Vs.
Union of India 2017 SCC Online Del 7879 (Para
26)

5. Parmanand Yadav and Others Vs. Union of
India and others {WP(C) No. 3834/2013} (Para
27)

6. Naveen Kumar Jha Vs. Union of India and
others, 2012 SCC Online Delhi 5606 (Para 28)

7. Amrendra Kumar Vs. Union of India and
others, {WP(C) No. 10028 of 2009} decided on
02.08.2010 (Para 29)

8. Shoorvir Singh Negi Vs. Union of India and
others, {WP(C) No. 5830 of 2015} decided on
17.09.2015 (Para 29)

9. Government of National Capital Territory of
Delhi & others etc. Vs. Ajay Kumar & others etc.
(Para 30)

10. Firangi Prasad Vs. State of U.P. & Others,
2010 (10) ADJ 1659 (Para 35)

11. Ashok Kumar Singh and another Vs. UPPCL
and three others, Writ-A No. 50301 of 2014
delivered on 03.03.2020 (Para 38)

12. Kamlesh Kumar Sonkar Vs. State of U.P. and
others, Writ-A No. 55607 of 2008 (Para 38)
(Delivered by Hon'ble Vivek Agarwal, J.)

1. Heard Sri Sankalp Narain, learned
counsel for the petitioners and Sri Ashish
Kumar Nagar, learned Standing Counsel
for the State.

2. Petitioners' learned counsel has
raise an issue that petitioners, who are
working on the post of constable, were
subjected to the recruitment process prior
to the cut off date i.e. 01.04.2005, when
new pension Rules came into vogue.
Petitioners contention is that admittedly
appointment order to the petitioners were
issued after the cut-off date, but that was
due to the fact that similar litigation was
pending in the High Court which was
initiated at the instance of unsuccessful
candidates and on account of stay granted
by the High Court, appointment orders
could not be issued in favour of the
petitioners.

3. Therefore, the whole controversy is
to be addressed within the narrow compass
i.e. whether petitioners who were appointed
after the cut off date i.e. 31.03.2005, are
entitled to benefit of old pension Rules
which were in vogue up to 31.03.2005 or
will be governed by new pension Rule.

4. These three petitions since raise
common legal issues and the factual back
drop under which this legal issue has been
raised being same, all the three petitions are
being disposed of simultaneously.

5. The brief facts as extracted from
writ petition no.6711 of 2020 are that on
06.01.2005, 4364 (Four thousand three
hundred and sixty four) posts of Constable
in Civil Police and PAC were advertised by
the State of Uttar Pradesh.
148 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Petitioners were since eligible, had
applied for the post of Constable. In the
advertisement, it is mentioned that eligible
candidates may appear in the office of the
Senior
Superintendent
of
Police/Superintendent of Police between
10.01.2005 and 10.02.2005 on any working
day between 10.00 a.m. and 5.00 p.m.
where applications be examined and
physical measurements will be carried out.
It is mentioned that no application shall be
entertained after the cut-off date. It is also
mentioned that persons who qualify the
preliminary eligibility parameters during
scrutiny of their candidature and subject to
fulfilment of physical parameters, alone
shall be eligible for other stages of
selection. It is also mentioned in the
advertisement that physical efficiency test
will commence on 17.02.2005 at 8.00 a.m.
and a candidate will be required to appear
on the same centre where he had deposited
his application form.

7. Learned counsel for the petitioners
submits that since petitioners' recruitment
was initiated before coming into force of
notification
dated
28.03.2005
and
07.04.2005 so also before coming into
force of the Uttar Pradesh Retirement
Benefits
(Amendment)
Rules,
2005
(hereinafter referred to as Rules, 2005)
whereby it is provided that Uttar Pradesh
Retirement
Benefits
Rules,
1961
(hereinafter referred to as Rules, 1961) and
General Provident Fund (Uttar Pradesh)
Rules, 1985 (hereinafter referred to as
Rules, 1985) will not apply to employees
entering in service on or after 01.04.2005,
these Rules will not be applicable from a
retrospective date.

8. Petitioners' submission is that at the
time of initiation of the recruitment when
advertisement dated 06.01.2005 was issued,
provisions of the Rules, 1961 were invogue
and therefore, there was a legitimate
expectation that their service conditions
will be governed by Rules, 1961 and they
will be getting remuneration on the post of
constable in terms of the Rules, 1961.

9. Learned counsel for the petitioners
also submits that the advertisement did not
disclose the fact that petitioners will be
subjected to new contributory pension
system, which was introduced for the first
time vide notification dated 28.03.2005
followed by subsequent amendment in the
Rules
notified
on
07.04.2005
made
effective from 01.04.2005.

10. Petitioners' contention is that exservicemen, who have been recruited, have
been excluded from the ambit of new
pension scheme and they are being
governed in accordance with earlier rules,
which is violative of Article 16 and 14 of
the Constitution of India. In this back drop,
a prayer has been made in the petition to
issue a writ, order or direction in the nature
of mandamus commanding the respondent
authorities to enforce the provisions of the
earlier pension scheme and not to enforce
the
new
pension
scheme
upon
the
petitioners
which
was
notified
vide
notification dated 28.03.2005.

11. Learned counsel for petitioners
submits that their case is squarely covered
by the judgment of this Court passed in
case of Mahesh Narayan and others vs.
State of U.P. and others as reported in
2020 (2) ALJ 518 wherein the co-ordinate
Bench of this Court partly allowed the writ
petition
and
under
the
facts
and
circumstances of the case held that
petitioners in that case are excluded from
the effect and operation of notifications
dated 28.03.2005 and 07.04.2005 holding it
11 All. Shaharoz Alam & Ors. Vs. State of U.P. & Ors.
149
to be in violation of Article 14 of the
Constitution of India as also the law laid
down
by
different
High
Courts.
Consequently, respondents were directed to
include the petitioners in that case under
old pension scheme as provided in Rules,
1961 before amendment and be given all
other consequential benefits.

12. Learned counsel for the State in
his turn submits that this petition is highly
belated.
Admittedly,
petitioners
were
appointed in May/June, 2005 and this
petition has been filed after 15 years
claiming a relief after being a member of
new contributory pension scheme for about
15 years and therefore, if their plea is to be
accepted then it is barred by the principle
of estopple so also that of acquiescence.

13. It is also submitted that
petitioners have an alternative remedy of
approaching the Uttar Pradesh Public
Services Tribunal, established under the
Uttar Pradesh Public Services (Tribunal)
Act, 1976 and therefore, in view of
alternative statutory remedy, petition is
not maintainable. It is also submitted that
petitioners'
recruitment
process
was
initiated on 06.01.2005 and as per the
terms and conditions of the advertisement
after formal scrutiny of the documents
and
physical
parameters,
physical
efficiency test, consisting of throw ball,
long jump, chinning up, sit ups followed
by running etc., was to be conducted and
those candidates who would have cleared
the eligibility criteria were required to
appear in a written test, consisting of 50
marks in which questions relating to
general knowledge, mental aptitude and
Hindi essay were to be attempted. It was
mandatory to obtain 33% marks in the
written examination which was followed
by interview of 20 marks and thereafter
selected candidates were to be sent for
training.

14. It is also submitted that
petitioners cannot claim parity with the
ex-servicemen for which there is a
separate quota and in any case petitioners
have not enclosed any documentary
evidence
to
substantiate
that
exservicemen Satish Kumar was
also
appointed along with them and therefore,
case of Satish Kumar is similar to that of
petitioners. It is also submitted that plea
of pendency of litigation is also not made
out from record inasmuch as petitioners
have neither given any case number nor
enclosed copy of any order from the
Court to show that procedure of selection
was delayed. It is submitted, in any case
that too will not have any bearing as
benefits are admissible as are permissible
under law on the date of appointment. He
submits that the petition is bereft of
merits and deserves to be dismissed.

15. After hearing learned counsel for
petitioners and going through the records, it
is necessary to first refer to the notifications
and the amendment in the Rules, 1961,
language of which reads that :-

"from
01.04.2005,
the
new
defined contribution pension system would
mandatorily apply to all new recruits to the
service of the State Government and of all
State controlled autonomous/State aided
private educational institutions referred to
above".

16. It provides for two accounts viz.,
pension Tier-I account in which employee
is required to make a monthly contribution
equal to 10% of the salary and Dearness
Allowance. A matching contribution is to
be made by the employer. No withdrawal is
150 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed from this account during the
service period. There is a provision of
voluntary Tier-II account, keeping in mind
the fact that new recruits would not be able
to subscribe to G.P.F. and this is in addition
to the pension Tier-I account. In Tier-II
account, employer would not make any
contribution. However, employee has been
given a liberty of withdrawal in part or all
of the proceeds from Tier-II account. Thus
it is apparent that Tier-I account is with a
view to protect post-retiral interests of the
employee whereas Tier-II account is like
G.P.F. providing flexibility to an employee
to withdraw sums out of his own savings as
per the exigencies of life.

17.

Thus,
submission
of
the
petitioners that this scheme is flawed is not
made out.

18.

Learned
counsel
for
the
petitioners has not been able to demonstrate
any arbitrariness in the scheme and
moreover petitioners have not challenged
the validity of the scheme or of notification
dated 28.03.2005 or of the Rules of 2005.
Therefore, in absence of any challenge to
the said provisions, this Court is not
required to advert to and address them.

19. As far as the decision in case of
Mahesh Narayan (supra) is concerned,
before appreciating the applicability of the
said judgment and the principles of law
applied, it is necessary to appreciate the
facts of that case.

20. In case of Mahesh Narayan and
others (supra), requisition for appointment
to 954 posts of Junior Engineer (Civil) in
the irrigation department of State of U.P.
was sent on 20.10.1999 to the U.P. Public
Service Commission. In the notification
itself it was clearly mentioned that posts
are
pensionable
and
after
receiving
requisition,
Commission
issued
an
advertisement no. A-3/E-1/2000 dated
22.12.2000. The last date of submission of
form was 27.01.2001. Originally the
scheme as was advertised provided for a
preliminary screening test, followed by a
written test but subsequently preliminary
screening test was done away and all
applicants
were
permitted
to
appear
straightway
in
the
mains
written
examination
which
was
held
on
22.12.2001.

21. It is mentioned in para 2 of the
judgment itself that prior to holding of
written examination writ petition no.7062
(S/S) of 2001 was filed by some candidates
possessing degree in Civil Engineering to
claim permission to participate in the said
examination. In the said petition, stay was
granted by learned single judge restraining
the holding of examination vide order dated
18.12.2001. Against this, Special Appeal
was filed by the Commission and vide
order dated 19.12.2001 interim order was
modified, that persons challenging the
exam were permitted to appear in the said
examination. However, Commission was
directed not to declare the results of such
candidates, who were allowed to appear on
the strength of the intervention of the
Court. It is mentioned that there was no
restrain order with regard to declaration of
result of remaining candidates but there
was only observation that declaration of
result of remaining candidates shall be
provisional, subject to final decision of writ
petition. In this back drop, result of the said
examination
was
not
declared.
Subsequently, vide order dated 05.07.2005,
writ petition no.7062 (S/S) of 2001 and
connected petitions were dismissed. After
dismissal of these petitions, result of
written examination was declared on
11 All. Shaharoz Alam & Ors. Vs. State of U.P. & Ors.
151
05.10.2005. Reasons shown as having
qualified
were
called
for
interview.
Interviews were held between November,
2005 and January, 2006 and thereafter vide
office order dated 14.06.2006, appointment
was
granted.
Consequent
to
such
appointment, joining was given to different
candidates in June and July, 2006.

22. In the above back drop, petitioners
raised their grievance in regard to their
exclusion from the benefit of pension
payable under the provisions of U.P.
Retirement Benefit Rules, 1961 and from
Provident Fund under the Rules, 1985. The
notifications
dated
28.03.2005
and
07.04.2005 so also the amended Rules,
2005 were assailed by the petitioners on the
ground that in the notification dated
20.10.1999, it was clearly mentioned that
posts are pensionable and due to certain
litigations if selection process could not be
finalised then petitioners cannot be put to a
disadvantage.

23. In case of Mahesh Narayan and
others (supra) co-ordinate Bench of this
Court has placed reliance on the judgment
in case of Ashutosh Joshi & others Vs.
State of Uttrakhand and others in Writ
Petition (S/S) No. 1170 of 2010 wherein
the facts were that against the same
advertisement, appointments were made
creating two categories i.e, one for female
candidates who were given appointment
prior to cut-off date from which "new
pension scheme" was implemented whereas
the
male
candidates
were
given
appointment
after
the
cut-off
date.
Therefore, this act of the employer was
held to be violative of Article 14 of the
Constitution of India.

24. Another judgment relied on is that
of Balwant Singh and Others. Vs. State of
Uttarakhand and Others. Writ Petition
Nos.16 and 944 of 2011 (S/S). Against the
very same advertisement, there was two
sets of selected candidates one submitting
their joining prior to the cut-off date and
the other after the cut-off date. These
petitions were allowed. Special Appeal
nos.330 of 2013 and 520 of 2013 filed by
the State of Uttrakhand were dismissed by
the Division Bench of Uttrakhand High
Court vide order dated 26.06.2014.

25. The ratio of the judgment of the
Division Bench in Special Appeal is that
service conditions prevailing on the date of
recruitment process commenced cannot be
permitted to be altered to disadvantage of
the recruitees. Further observed that the
Government order dated 25.10.2005 is
prospective in nature and cannot be made
applicable retrospectively for the persons
who had applied for the post prior to
25.10.2005.

26. Co-ordinate Bench in case of
Mahesh Narayan & others (supra) also
placed reliance on the judgment of Delhi
High Court in the matter of Inspector
Rajendra Singh and others vs. Union of
India as reported in 2017 SCC Online Del
7879 where facts of the case are that
petitioners were declared medically unfit.
Thereafter,
petitioners
got
themselves
medically examined in other reputed
medical institutions, where they were
declared medically fit. Thereafter the
petitioners
applied
for
medical
reexamination by a Review Medical Board.
In the meanwhile, appointment orders in
relation
to
other
candidates
who
participated
in
the
same
recruitment
process were issued and they all joined the
respective forces on or before 31.12.2003
but due to delay in the review medical
examination,
petitioners
who
were
152 INDIAN LAW REPORTS ALLAHABAD SERIES
eventually
found
successful,
joined
subsequent to the cut-off date and in this
back drop the Delhi High Court held that :-

"it would be grossly unjust and
arbitrary to deny the petitioners, the benefit
of old pension scheme, applicable at the
time when the posts were advertised, only
because of the fortuitous considerations of
their joining service after the enforcement
of the new pension scheme for reasons not
attributable to them."

27. Reliance is also placed on the
judgment of Delhi High Court in case of
Parmanand Yadav and Others Vs. Union
of
India
and
others
{WP(C)
No.3834/2013} decided on 12.02.2015
wherein the appointment letters were
delayed by three months, the fact which
was admitted by the Director General of
BSF in his counter affidavit and thus for the
reasons of parity, relief was granted to
Paramanand Yadav treating his case to be at
par with Navin Kumar Jha and Avinash
Singh.

28. In case of Naveen Kumar Jha vs.
Union of India and others, as reported in
2012 SCC Online Delhi 5606 wherein
noting
a
fact
that
Staff
Selection
Commission had invited applications to fill
up posts of Sub-Inspector in Central Para
Military Force. They were declared unfit by
the
medical
board
which
conducted
medical
examination
on
04.02.2002.
Petitioner had applied for re-examination
before a Review Medical Board as per the
scheme of the recruitment within 30 days
of unfitness being intimated but Review
Medical Board was not convened and in the
meanwhile by March, 2003 others who
were successful were allowed to join the
respective Para Military Force to which
their allocation was made. Petitioner was
called for interview in July, 2003 and after
clearing the same, was offered appointment
in April, 2004. Thus finding that the delay
in conducting the Review Medical Board
being a fortuitous circumstance, petitioner
was allowed to be a member of pension
scheme which remained in vogue till
31.12.2003. Thus apparently case of
Naveen Kumar Jha and Avinash Singh is on
the same footing as that of Inspector
Rajendra Singh (supra).

29. Co-ordinate Bench also relied on
the judgment of Amrendra Kumar vs. UOI
& Others., passed by High Court of Delhi
in {WP(C) No.10028 of 2009} decided on
02.08.2010 which is again on the same
lines as that of Inspector Rajendra Singh
(supra), similarly, case of Shoorvir Singh
Negi Vs. Union of India and others again
originating from the High Court of Delhi in
{WP(C) No.5830 of 2015} decided on
17.09.2015 has been relied facts of which
are similar to that of Naveen Kumar Jha.

30. Reliance is also placed on the
judgment of Delhi High Court passed in
case of Government of National Capital
Territory of Delhi & others. etc. Vs. Ajay
Kumar & others etc. so also other
connected matters where the facts were
similar to Naveen Kumar Jha. It is noted
that this judgment of Delhi High Court was
challenged before the Supreme Court by
filing Diary No.15658 of 2019 which has
been dismissed by Supreme Court vide
order dated 10.07.2019. In fact a perusal of
order on the website of Supreme Court
reveals that delay was condoned and matter
dismissed.

31. Similarly, there is mention of
judgment of Allahabad High Court in case
of Satyesh Kumar Mishra and others vs.
State of U.P. and others, as reported in
11 All. Shaharoz Alam & Ors. Vs. State of U.P. & Ors.
153
2016(6) ADJ 808 (LB) where Lucknow
Bench of Allahabad High Court referring to
the judgment of Supreme Court in case of
Sudhir Kumar Kansal Vs. Allahabad
Bank as reported in 2011 (2) ESC 243 and
also on case of Smt. Rakhi Ray and others
Vs. High Court of Delhi and others as
reported in 2010 (2) SCC 637 so also on
case of Vijoy Kumar Pandey Vs. Arvind
Kumar Rai and others as reported in 2013
(11) SCC 611 dismissed the petition filed
by Satyesh Kumar Mishra and others
wherein petitioners had sought direction to
respondents to make necessary deduction
towards G.P.F. etc. in view of old pension
scheme, which was in existence at the time
of notification dated 27.09.2002 issued by
Secondary Education Service Selection
Board, oblivious of the fact that petitioners
had entered into service on 16.04.2005
after coming in effect of the new pension
scheme.

32. Hon'ble Co-ordinate Bench
recorded a finding in case of Sudhir Kumar
Kansal (supra), to the effect that :-

"in a society governed by rule of
law, sympathies cannot override the rules
and regulations".

33. Similarly, in case of Rakhi Ray
and others (supra) the Supreme Court in
para 24 observed that :-

"a person whose name appears in
the select list does not acquire any
indefeasible
right
of
appointment.
Empanelment at the best is a condition of
eligibility for the purpose of appointment
and by itself does not amount to selection
or create a vested right to be appointed."

34. In case of Vijoy Kumar Pandey
(supra), the Supreme Court held that :-

"preparation of select list or
panel does not by itself entitle the
candidate whose name figures in such a
list/panel to seek appointment or claim
mandamus"

35. Learned Co-ordinate Bench in
case of Mahesh Narayan and others
(supra) placing reliance on the judgment of
Allahabad High Court in case of Firangi
Prasad Vs. State of U.P. & Others as
reported in 2010 (10) ADJ 1659 wherein
facts of the case are that in a matter of
consideration of scheme of regularisation
of ad-hoc appointees, cut-off date of
06.08.1993 was prescribed whereas Firangi
Prasad who was selected for appointment
as Assistant Teacher on 05.01.1993 by the
District Inspector of Schools was not given
appointment by the management of the
school and ultimately management after
initially refusing to perform the ministerial
act of issuing the letter of appointment to
appellant issued appointment letter on
25.08.1993. In this back drop, it is held that
the appointment of the petitioner shall
relate back to the date of the letter of the
District
Inspector
of
Schools,
communicating the order of selection to the
management and therefore, appellant will
be entitled to benefit of Section 33 (c) of
the U.P. Secondary Education Services
Selection
Board
Act,
1982
certain
provisions of which were amended w.e.f.
20.04.1998.

36. In the above back drop, petition in
case of Mahesh Narayan was allowed and
relief has been granted.

37. Now the fact of the matter is that
there exists two judgments of two different
Benches of equal strength of the same High
Court viz., one in case of Mahesh Narayan
and others vs. State of U.P. and others and
154 INDIAN LAW REPORTS ALLAHABAD SERIES
another in case of Satyesh Kumar Mishra
and others and therefore, matter should be
referred to a larger Bench for its decision.

38. The fact of the matter is that
another Co-ordinate Bench in case of
Ashok Kumar Singh and another vs.
UPPCL and three others passed in Writ-A
No.50301 of 2014 delivered on 03.03.2020
has dealt with similar issue and in the light
of the decision in case of Firangi Prasad, it
held that since petitioners were not at fault,
and placing reliance on the judgment of
Kamlesh Kumar Sonkar vs. State of U.P.
and others rendered in Writ-A No.55607 of
2008 dealing with recruitment of Junior
Engineer (Civil), Irrigation Department
pursuant to an advertisement published in
2002 allowed the petition. However, fact of
the matter in the present case are
distinguishable.

39. Admittedly, advertisement was
issued on 06.01.2005. There is no condition
in the advertisement that the posts are
pensionable unlike in case of Mahesh
Narayan and others (supra), therefore, in
the light of the law laid down by Hon'ble
Supreme Court in case of Bhavnagar
University vs. Palitana Sugar Mills as
reported in (2003) 2 SCC 111 wherein in
para 59, the Supreme Court observed :-

"It is also well-settled that a little
difference in facts or additional facts may
make a lot of difference in the precedential
value of a decision."

40. So, also in the light of the
judgment of Supreme Court in Bharat
Petroleum
Corporation
Ltd.,
and
another vs N.R. Vairamani And Another
as reported in AIR 2004 SC 778 that a
decision cannot by relied on without
considering the factual situation. The
Supreme Court observed :-

"Courts should not place reliance
on decisions without discussing as to how
the factual situation fits in with the fact
situation of the decision on which reliance
is placed. Observations of Courts are
neither to be read as Euclid's theorems nor
as provisions of the statute and that too
taken
out
of
their
context.
These
observations must be read in the context in
which they appear to have been stated.
Judgments of Courts are not to be
construed as statutes. To interpret words,
phrases and provisions of a statute, it may
become necessary for judges to embark
into lengthy discussions but the discussion
is meant to explain and not to define.
Judges interpret statutes, they do not
interpret judgments. They interpret words
of statutes; their words are not to be
interpreted as statutes."

41. Similarly, in case of P.S. Rao vs.
State as reported in JT 2002 (SC) 1, the
Supreme Court held as under :-

"There is always a peril in
treating the words of judgment as though
they are words in a legislative enactment,
and it is to be remembered that judicial
utterances are made in setting of the facts
of
a
particular
case.
Circumstantial
flexibility, one additional or different fact
may make a world of difference between
conclusions in two cases."

42. In case of Rafiq vs. State, as
reported in 1980 SCC (CRL) 946 it is
observed as under :-

"The ratio of one case cannot be
mechanically applied to another case
11 All. Shaharoz Alam & Ors. Vs. State of U.P. & Ors.
155
without having regard to the fact situation
and circumstances obtaining in two cases."

43. In the light of decisions of
Hon'ble Supreme Court starting from Rafiq
(supra), P.S. Rao (supra) Bharat Petroleum
Corporation Ltd., (supra) and Bhavnagar
University
(supra),
I
find
myself
sufficiently equipped to hold that under the
facts and circumstances of the case, since
facts of the present case are different from
that of Mahesh Narayan (supra), Firangi
Prasad (supra) and Ashok Kumar Singh and
another (supra), this Court is of the opinion
that in the light of law laid down by
Supreme Court in case of Rakhee Ray and
others (supra), Vijoy Kumar Pandey (supra)
and Sudhir Kumar Kansal (supra) the facts
of the judgments referred to in case of
Ashutosh Joshi and others, Balwant Singh
and others, Inspector Rajendra Singh,
Government of National Capital Territory
of Delhi, and also that from the cases of
Naveen Kumar Jha, Paramanand Yadav,
Avinash Singh, Amrendra Kumar, Shoorvir
Singh Negi are distinguishable from the
facts of the present case. In the present
case, as has been discussed above,
recruitment was initiated on 06.01.2005,
results were declared on 23.04.2005
followed by the medical examination and
document verification from 24.04.2005 and
therefore, definitely appointment orders
were issued after 24.04.2005 whereas the
Rules of 2005 had become effective w.e.f.
01.04.2005 i.e., much before the date of
declaration of even the results of the
petitioner and therefore, there being no
parity in case of the petitioners and also in
the light of the settled law laid down in
case of Roshan Lal Tandon vs. Union of
India and others as reported in AIR 1967
SC 1889 wherein it has been held that
while exercising the authority under
Articles 309, 310 and 311 of the
Constitution of India, the terms of service
can be altered unilaterally by Government,
there is no vested contractual right for the
servant.

44. Similarly, in case of Tagin Litin
vs. State of Arunachal Pradesh and others
as reported in (1996) 5 SCC 83 it has been
held that appointment order will become
effective from the date of communication.
Un-communicated order of appointment is
held to be ineffective.

45. In case of Divisional Manager,
Aravali Golf Club and another vs.
Chander Hass and another as reported in
(2008) 1 SCC 683 the Supreme Court has
dealt with the issue of separation of powers
and the limits of powers of judiciary, it has
deprecated the attempt on the part of judges
to
perform
executive
or
legislative
functions.

46. In case of Ashwani Kumar Singh
vs. U.P. Public Service Commission and
others as reported in (2003) 11 SCC 584 it
is held that policy decision of the employer
to
appoint
a
particular
number
of
candidates cannot be interfered with unless
it is irrational or mala fide. It has also been
held that judgments are not to be construed
as statutes. Blind reliance on judgment
without considering the fact situation has
been held to be improper.

47. In case of Official Liquidity vs.
Dayanand and others as reported in (2008)
10 SCC 1 it has been held that :-

"in
the
matter
of
different
employment, scope of judicial review of
power of employer to create or abolish
posts or cadres or to prescribe source or
mode of recruitment etc. is not immune
from judicial review, but power of judicial
156 INDIAN LAW REPORTS ALLAHABAD SERIES
review can be exercised in such matters
only if it is shown that the action of the
employer is contrary to any constitutional
or statutory provision or patently arbitrary
or is vitiated by mala fides."

48. In case of Government of Odisha
through
Secretary,
Commerce
and
Transport Department, Bhubaneswar vs.
Hare Prasad Das and other as ported in
(1998) 1 SCC 487 it has been held that
recruitment process of preparation of a
panel does not confer any right on the
candidates
included
therein.
Where
Government decides for a valid reason not
to
make
further
appointments,
such
decision
cannot
be
termed
arbitrary.
Meaning thereby that there is no vested
right to be appointed in a service merely
with the commencement of the recruitment
process or declaration of a panel.

49. In case of General Manager
Uttaranchal Jal Sansthan vs. Laxmi Devi
and others as reported in (2009) 7 SCC
205 Supreme Court held that :-

"an employee can claim status as
government servant only if his appointment
has been made in terms of recruitment rules
and he fulfils criteria for appointment."

50. In view of such facts and the law
on the subject, I am of the opinion that
petitioners have failed to make out a case
either of parity with that of Mahesh
Narayan
or
Firangi
Prasad
or
the
judgements cited therein, neither have been
able to establish any mala fide, arbitrariness
or deliberate delay in the process of
recruitment. Petitioners have failed to make
out the case that the legislative and
executive action has failed to satisfy the
twin test of reasonable classification and
the rational principal co-related to the
object sought to be achieved. In absence of
such pleadings and submissions even on
this ground petition is not maintainable.

51. Petitioners contention that due to
pendency of similar litigation delay has
been caused in issuance of appointment
order is not made out from record. No
proof in regard to this averment has been
furnished by the petitioners.

52. Issue of prospectivity of the Rules
is also discussed above. It is settled
principle of law that a person attains rights
in the matter of service from the date of
appointment and not from the date of
initiation of the recruitment process.
Therefore, this arguments of the petitioners
that recruitment was initiated prior to
coming into force of the amended Pension
Rules has no force.

53. As far as plea of the Co-ordinate
Bench in regard to dismissal of SLP is
concerned, the impact of such dismissal has
been discussed by Hon'ble Supreme Court.
It does not mean that issue has been settled.

54. Supreme Court in the case of
Kunhayammed & Others vs State of
Kerala & Another as reported in 2000 (6)
SCC 359, has dealt with the issue of effect
of ''in limine' dismissal of Special Leave
Petition (SLP) by the Supreme Court and
has held that :-

"....as to when a decision of the
Court in a SLP would be binding and when
not. The Supreme Court observed that there
are two distinct stages: (a) Granting of
special leave to appeal; and (b) Hearing
the appeal. If the SLP is dismissed at the
stage of special leave without a speaking or
reasoned order, there is no res judicata, no
merger of the lower order and the
11 All. Smt. Asha Rai, Officiating Principal, Rashtriya Inter College, Tahbarpur, Azamgarh Vs. State of
 U.P. & Ors.
157
petitioner retains the statutory right, if
available of seeking relief in review
jurisdiction of the High Court.