# Shivam Pandey & Ors v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 480
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-29
- **Case number:** Writ A No. 4063 of 2020
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivam-pandey-ors-v-state-of-u-p-ors-51668
- **Pages:** 10

## Headnote

A. Service Law - Constitution of India -
103rd Constitutional Amendment - UP
Public
Services
(Reservation
for
Economically Weaker Sections) Act, 2020
- 10% reservation in favour of EWS -
Applicability
-
Selection
process
of
appointment of 69000 posts of Assistant
Teachers
was
commenced
from
16.05.2020 i.e. after 103rd Constitutional
Amendment but before enactment of U.P.
Act No. 10 of 2020 i.e. on 31.08.2020 -
Effect - Held, as per savings clause
(Section 13), provisions of U.P. Act No. 10
of 2020 would not be applicable - Since
procedure for selection for 69000 posts of
Assistant Teachers was commenced prior
to 31.08.2020, therefore, St. of U.P. was
not
legally
bound
to
provide
EWS
reservation in said recruitment process -
It was only after enactment of said Act,
the St. is under a legal obligation to
provide reservation to EWS and not before
it. (Para 18, 23 and 24)

Writ petition dismissed. (E-1)

List of cases cited :-

## Text

480 INDIAN LAW REPORTS ALLAHABAD SERIES
that impugned order may be set aside and
Basic Shiksha Adhikari concerned be
directed to proceed from stage of inquiry
report i.e. after serving a copy of it upon
petitioner.

5. Taking note of prompt response as
well as fair submission, impugned order is
set aside and concerned B.S.A. is directed
to provide a copy of inquiry report to
petitioner and to proceed further in
accordance with prescribed procedure and
to conclude the inquiry expeditiously
preferably within a period of six weeks
from today.

 6. Accordingly, writ petition is
disposed of.
----------
(2024) 3 ILRA 480
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.02.2024
BEFORE
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ A No. 4063 of 2020
with other cases

Shivam Pandey & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Seemant singh, Sri G.K. Singh (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Arun Kumar

A. Service Law - Constitution of India -
103rd Constitutional Amendment - UP
Public
Services
(Reservation
for
Economically Weaker Sections) Act, 2020
- 10% reservation in favour of EWS -
Applicability
-
Selection
process
of
appointment of 69000 posts of Assistant
Teachers
was
commenced
from
16.05.2020 i.e. after 103rd Constitutional
Amendment but before enactment of U.P.
Act No. 10 of 2020 i.e. on 31.08.2020 -
Effect - Held, as per savings clause
(Section 13), provisions of U.P. Act No. 10
of 2020 would not be applicable - Since
procedure for selection for 69000 posts of
Assistant Teachers was commenced prior
to 31.08.2020, therefore, St. of U.P. was
not
legally
bound
to
provide
EWS
reservation in said recruitment process -
It was only after enactment of said Act,
the St. is under a legal obligation to
provide reservation to EWS and not before
it. (Para 18, 23 and 24)

Writ petition dismissed. (E-1)

List of cases cited :-

1. Prashant Kumar Vs St. of U.P. & ors., 2005
(4) ESC (All) 2395

2. Writ A No. 13156 of 2020; Mahendra Pal &
ors.Vs St. of U.P. & ors.decided on 13.03.2023

3. Special Appeal No. 156 of 2019; Raghvendra
Pratap Singh & ors.Vs St. of U.P. decided on
06.05.2020

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1.
Issue
before
this
Court
for
consideration are -:

(i) "Whether in pursuance of
103rd Amendment in Constitution of India
dated 12.01.2019, whereby provision for
10% reservation to Economically Weaker
Sections (for short "EWS") and adopted by
State of Uttar Pradesh through Office
Memorandum dated 18.02.2019) would be
applicable
to
a
Notification
dated
16.05.2020 issued by State Government in
regard to selection on 69000 posts of
Assistant
Teachers?"
3 All. Shivam Pandey & Ors. Vs. State of U.P. & Ors.
481

(ii) "Whether selection process would
consider to be commenced when on
01.12.2018
(i.e.
before
Constitutional
Amendment), when State Government
issued a Government Order for conducting
Assistant
Teachers
Recruitment
Examination-2019
(for
short
"ATRE2019"),
a
qualifying
examination
to
participate in above referred selection
process? and;

(iii) "What would be effect of
Uttar Pradesh Public Services (Reservation
for Economically Weaker Section) Act,
2020?"

2. It is case of petitioners that on
01.12.2018, the State Government issued a
Government Order for conducting "ATRE2019",
which
was
conducted
on
06.01.2019.
The
petitioners
have
participated in said examination under
Unreserved (General) category and result
thereof was issued on 12.05.2020, wherein
all petitioners were qualified i.e. have
scored more than minimum qualifying
marks.

3. It is further case of petitioners that
on 16.05.2020, the State Government
initiated further process of selection of
69000 posts of Assistant Teachers for
appointment in primary education in State
of U.P. Meanwhile, in pursuance of 103rd
Amendment in Constitution, petitioners
have got their EWS certificate issued by
competent
Authority
and
they
have
represented before concerned respondents
to provide 10% reservation of EWS.

4. The petitioners approached this
Court in June, 2023. During pendency of
their writ petition, process of selection was
completed and petitioners were not selected
since they were placed lower in merit.

5. Sri G.K. Singh, learned Senior
Advocate assisted by S/Sri Seemant Singh,
Anurag Tripathi, Irshad Ali and Rahul
Kumar
Mishra,
learned
counsel
for
petitioners in all writ petitions have
vehemently submitted that State was under
obligation to provide 10% EWS reservation
in examination in question since it was held
after above referred 103rd Constitutional
Amendment was notified as well as
subsequent to Office Memorandum dated
18.02.2019, whereby in principal EWS
reservation was adopted by the State of
Uttar Pradesh.

6. In order to substantiate his
arguments, learned Senior Advocate for
petitioners has referred a notification issued
by State of U.P. dated 13.08.2019, whereby
in pursuance of O.M. dated 18.02.2019, a
roster system was published.

7. Learned Senior Advocate for
petitioners in order to further substantiate
his argument has vehemently placed
reliance on a judgment passed by the Full
Bench of this Court in Prashant Kumar
vs. State of U.P. and others, 2005 (4) ESC
(All) 2395, wherein following question was
referred for consideration -:

"At what stage the caste of a
candidate should be entered in the Schedule
I of the U.P. Public Services (Reservation
for Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994 for him
to get benefit as an OBC candidate; should
it be before the notification/advertisement
of the selections, or the written test, or the
oral test (in case of oral test only), or the
declaration of the result."

8. Above referred question was
answered by the Full Bench in following
terms -:
482 INDIAN LAW REPORTS ALLAHABAD SERIES

"The benefit of reservation
to Other Backward Class' candidates in
selection in Public Services by direct
recruitment as provided by U.P. Public
Service ( Reservation for Scheduled
Castes/Scheduled
Tribes
and
Other
Backward Class) Act, 1994, is applicable,
to only those categories or castes which are
notified as Other Backward Classes entered
in Schedule I of the Act, upto the last date
of filling up of the application form for
such selections, provided there is no
contrary provision in the Service Rules, the
terms and conditions of recruitment, or in
the advertisement."

9. Further argument of learned
counsel for petitioners are summarized in
written submissions and relevant being are
extracted hereinbelow -:

"1. That, bare perusal of the result
declared on 13.05.2019 it is clear that result
of
Assistant
Teachers
Recruitments
Examination has not been declare as per the
reservation schedule i.e. for S.C./S.T.,
OBC/General Category, rather declaration
has been made that candidates has been
declared as a whole without disclosing their
category, who have qualified as per the
percentage fix by the Government of U.P.

2. That, the advertisement begins
only when the post are advertised as per
District wise and that has been made only
by the notification dated 16.05.2020,
wherein it has also been mention that the
reservation Rule will be apply as per the
Act and G.O. implemented in State of U.P.
on that day i.e. 16.05.2020 (Clause- 3 of
Guideline issued along with G.O. dated
16.05.2019).

3.
That,
since
the
EWS
reservation in U.P. has been adopted on
18.02.2019 itself, so the EWS reservation is
apply in the vacancy in question."

10. Per contra, Ms. Shruti Malviya,
S/Sri L.M. Singh, Manvendra Dixit, Suresh
Srivastava and Ritesh Kumar Singh,
learned
counsel
for
respondents
has
referred following paragraphs of counter
affidavit -:

"5. That, in reply to the contents
of paragraph nos. 13 and 14 of the writ
petition, it is stated that, pursuant to the
Government
Order
dated
01.12.2018,
process for selection on the post of 69000
vacancies of Assistant Teacher was started
by
initiating
the
Assistant
Teachers
Recruitment Examination 2019. At that
point of time, there was no provision for
granting
horizontal
reservation
to
economically weaker section, as such there
was no provision for categorization of
EWS candidates in the Assistant Teacher
Recruitment Examination- 2019. As the
process for recruitment on the vacancies of
69000 Assistant Teacher had started on
01.12.2018, the provision of providing 10%
reservation to EWS candidates, was not
provided when the Government Order
dated 13.05.2020 and 16.05.2020 was
issued. The averments to the contrary are
denied.

6. That, in reply to the contents of
paragraph nos. 15 and 16 of the writ
petition, it is stated that when the
Government
Order
dated
13.08.2019,
providing 10% reservation to the persons
belonging to EWS was issued, the process
for recruitment on 69000 vacancies of
Assistant Teacher had already commenced.
In view of the aforesaid fact any change in
the reservation Policy subsequent to the
start of recruitment process could not be
introduced at any intermediate stage of the
proceedings. The averments to the contrary
are denied.

7. That, in reply to the contents of
paragraph nos. 17, 18 and 19, of the writ
3 All. Shivam Pandey & Ors. Vs. State of U.P. & Ors.
483
petition, it is stated that in the selection of
Assistant Teachers for appointment in
Basic Schools run by the Parisahd, manual
interference has been completely done
away with, as the entire process of
selection right from the submission of
application form, declaration of result and
allocation of Districts according to merit, is
carried out through a Software developed
by the National Informatics Centre. At the
time of Development of the Software,
inviting application for recruitment of
Assistant Teacher 2019, pursuant to the
Government Order dated 01.12.2018, there
was no provision providing reservation in
favour of candidates from EWS category.
The process of selection was delayed due to
unavoidable
circumstances,
in
the
meantime the Government Order dated
13.08.2019 was issued providing 10%
reservation to the EWS. The Government
Order
dated
13.08.2019
has
no
retrospective effect, it could not be applied
in the present selection of 69000 vacancies
of Assistant Teachers. The averments to the
contrary are denied.

8. That, in reply to the contents of
paragraph nos. 20 and 21 of the writ
petition, it is stated that the provision of
providing
10%
reservation
to
the
candidates belonging to the EWS category
was introduced in the State of Uttar
Pradesh by the Government Order dated
13.08.2019. As the recruitment process for
filling up 69000 vacancies of Assistant
Teachers had already started by the
Government Order dated 01.12.2018, hence
the benefit of the Government Order dated
13.08.2019 could not be introduced at the
intermediate stage. The averments to the
contrary are denied."

11. Learned counsel for respondents
have also placed reliance upon a judgment
passed by the coordinate Bench of this
Court in case of Mahendra Pal and others
vs. State of U.P. and others, Writ A No.
13156 of 2020 decided on 13.03.2023.

12. In rejoinder, learned Senior
Advocate for petitioners has placed reliance
upon a judgment of Division Bench of this
Court in case of Raghvendra Pratap
Singh and others vs. State of U.P.
through
Principal
Secretary,
Basic
Education,
U.P.,
Lucknow,
Special
Appeal No. 156 of 2019 decided on
06.05.2020 that ATRE-2019 examination
was only a qualifying examination which
could not be considered to be part of
selection process and selection process was
initiated only by the Notification dated
16.05.2020 i.e. subsequent to aforesaid
103rd Constitutional Amendment.

13. Learned Senior Advocate for
petitioners has also submitted that law is
well established that the reservation would
apply from the date of issuance of the
advertisement dated 16.05.2020 issued by
the Secretary, U.P. Basic Education Board,
Prayagraj for making recruitment of 69,000
posts of Assistant Teacher inviting online
application from the eligible candidates
having all the essential qualifications
including the qualification of having
qualified ATRE-2019 also.

14. Heard learned counsel for parties
and perused record.

15. In present case, I have heard
counsel for parties at length, however, they
have not placed on record that State of U.P.
has enacted an Act for implementation of
EWS reservation by way of enactment of
Uttar Pradesh Public Services (Reservation
for EWS) Act, 2020 (U.P. Act No. 10 of
2020) published in Gazette on 31.08.2020.
The
said
Act
being
relevant
for
484 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration of rival submissions is
reproduced hereinafter in its entirety -:

"THE UTTAR PRADESH PUBLIC
SERVICES (RESERVATION
 FOR ECONOMICALLY WEAKER
SECTIONS) ACT, 2020
(U.P. Act No. 10 OF 2020)
[As Passed by the Uttar Pradesh
Legislature]
AN
ACT

to provide for the reservation in
public services and posts in favour of the
persons belonging to the Economically
Weaker Sections of citizens in addition to
the existing reservation applicable in the
State and for matters connected therewith
or incidental thereto.

IT IS HEREBY enacted in the
Seventy-First Year of the Republic of India
as follows :-

Short title and commencement -
:

1. (1) This Act may be called the
Uttar Pradesh Public Services (Reservation
For Economically Weaker Section) Act,
2020. (2) It shall be deemed to have come
into force on February 01, 2019.

Definitions

2. In this Act unless the context
otherwise requires,-

(a) "appointing authority" in
relation to public services and posts means
the
authority
empowered
to
make
appointment to such services or posts ;

(b)
"Economically
Weaker
Sections of citizens" means the persons
belonging
to
Economically
Weaker
Sections
as
defined
in
the
Office
Memorandum
F.No.
36039/1/2019
Estt.(Res), dated 19.01.2019 of D.O.P.T.
Ministry of Personnel and Public Grievance
and Pension Government of India for the
time being in force.

(c) "public services and posts"
means the services and posts in connection
with the affairs of the State and includes
services and posts-

(i) a local authority ;

(ii) a co-operative society as
defined in clause (f) of section 2 of the
Uttar Pradesh Co-operative Societies Act,
1965 in which not less than fifty-one
percent of the share capital of the society is
held by the State Government ;

(iii) a Board or a corporation or a
statutory body established by or under a
Central or Uttar Pradesh Act which is
owned and controlled by the State
Government, or a Government company as
defined in section 617 of the Companies
Act, 1956 in which not less than fifty-one
percent of the paid up share capital is held
by the State Government ;

(iv) an educational institution
owned and controlled by the State
Government or which receives grants in aid
from the State Government, including a
university established by or under a Uttar
Pradesh
Act,
except
an
institution
established and administered by minorities
referred to in clause (1) of Article 30 of the
Constitution ;

(v)
in
respect
of
which
reservation
was
applicable
by
the
Government
orders
on
the
date
of
commencement of this Act and are not
covered under sub-clauses (i) to (iv) ;

(d)
"Reservation"
means
reservation
for
economically
Weaker
Sections in vacancies of posts and services
in the State of Uttar Pradesh.

(e) "year of recruitment" in
relation to a vacancy means a period of
twelve months commencing on the first of
July of a calendar year within which the
process of direct recruitment against such
vacancy is initiated.
3 All. Shivam Pandey & Ors. Vs. State of U.P. & Ors.
485

Reservation
in
favour
of
Economically Weaker Section

3. (1) In public services and
posts, at the stage of direct recruitment, ten
percent of vacancies to which recruitment
are to be made, they shall be reserved in
favour of the persons belonging to
Economically Weaker Sections of citizens:

Provided that the reservation shall
not apply to the category of Economically
Weaker Sections of citizens specified in the
Schedule to this Act:

Provided
further
that
the
candidates from out of the State of Uttar
Pradesh shall not be eligible for benefits of
reservation under this Act.

(2) The reservation under this
section shall be in addition to the
reservation provided under the Uttar
Pradesh Public Services (Reservation for
Schedule Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994.

(3) The office memorandum
issued
by
Karmik
Anubhag-2
wide
no.1/2019/4/1/2002/ka-2/19T.C.II,
dated
18.02.2019 shall be deemed to have been
issued under this section.

(4) For applying the reservation
under sub-section (1), roaster has been
issued
by
notification
O.M.
No.5/2019/4/1/2002/ka-2/2019T.C.-
I,
dated 13th August, 2019 by the State
Government which shall be continuously
applied till it is exhausted.

(5) If a person belonging to
Economically Weaker Sections of citizens
gets selected on the basis of merit in an
open
competition
with
unreserved
candidates, he shall not be adjusted against
the vacancies reserved for such category
under sub-section (1).

(6) "Where in any particular
recruitment year any vacancy earmarked
under sub-section (1) for Economically
Weaker Sections cannot be filled up due to
non availability of a suitable candidate
belonging
to
Economically
Weaker
Sections such vacancies shall not be carried
forward to the next recruitment year as
backlog and the said vacancy shall be filled
by the eligible candidates of unreserved
category."

Responsibility and powers for
compliance of the Act

4. (1) The State Government may,
by notified order, entrust the appointing
authority or any officer or employee with
the
responsibility
of
ensuring
the
compliance of the provision of this Act.

(2) The State Government may, in
the like manner, invest the appointing
authority or officer or employee referred to
in sub-section (1) with such powers or
authority
as
may
be
necessary
for
effectively discharging the responsibility
entrusted to him under sub-section (1).

Penalty

5. (1) Any appointing authority or
officer or employee entrusted with the
responsibility under sub-section (1) of
section 4 who willfully acts in a manner
intended to contravene or defeat the
purpose of this Act shall, on conviction, be
punishable with imprisonment which may
extend to three months or with fine which
may extend one thousand rupees or with
both.

(2)
No
court
shall
take
cognizance of an offence under this section
except with the previous sanction of the
State Government or an officer authorized
in this behalf by the State Government by
an order.

(3) An offence punishable under
sub-section (1) shall be tried summarily by
a Metropolitan Magistrate or a Judicial
Magistrate of the first class and the
provision of sub-section (1) of section 262,
section 263, section 264 and section 265 of
486 INDIAN LAW REPORTS ALLAHABAD SERIES
the Code of Criminal Procedure, 1973 shall
mutatis mutandis apply.

Power to call for record

6. If it comes to the notice of the
State
Government,
that
any
person
belonging
to
Economically
Weaker
Sections mentioned in subsection (1) of
section 3 has been adversely affected on
account
of
non
compliance
of
the
provisions of this Act or the rules made
thereunder or the Government orders issued
in this behalf by the appointing authority, it
may call for such records and take such
action as it may consider necessary.

Income and Assets certificate

7. For the purpose of reservation
provided under this Act, income and assets
certificate shall be issued by such authority
or officer not below the rank of Tehsildar in
the State and in such manner and in such
form as the State Government may, by
order, provide.

The
office
memorandum
no.1/2019/4/1/2002/ka-2/ 19T.C.II, dated
18 February 2019 shall be deemed to have
been issued under this section.

Removal of difficulties

8. If any difficulty arises in
giving effect to the provisions of this Act,
the State Government may, by a notified
order,
make
such
provisions
not
inconsistent with the provisions of this Act,
as appears to it to be necessary or expedient
for removing the difficulty.

Protection of action taken in
good faith

9. No suit, prosecution or other
legal proceedings shall lie against the State
Government or any person for anything
which is done or intended to be done in
good faith in pursuance of this Act or the
rules made thereunder.

Power to make rules

10. The State Government may,
by notification, make rules for carrying out
the purposes of this Act.

Power to amend the Schedule

11. The State Government may,
by notification amend the Schedule and
upon the publication of such notification in
Gazette, the Schedule shall stand amended
accordingly.

Laying of Order etc.

12. Every order made under subsections (4) of section 3 and section 4 and 8
shall be laid as soon as may be, before each
House of the State Legislature and the
provisions of sub-section (1) of section 23-
A of the Uttar Pradesh General Clauses
Act, 1904 shall apply as they apply in
respect of rules made by the State
Government under any Uttar Pradesh Act.

Savings

13. The provisions of this Act
shall not apply to cases in which selection
process
has
been
initiated
before
commencement of this Act and such cases
shall be dealt with in accordance with the
provisions of law and Government order as
they stood before the commencement.

Explanation: For the purposes of
this section the selection process shall be
deemed to have been initiated where, under
the relevant service rules, recruitment is to
be made on the basis of -

(i) written test or interview only,
the written test or the interview, as the case
may be, has started, or

(ii)
both
written
test
and
interview, the written test has started.
(2) The provisions of this Act shall not
apply to appointment, to be made under the
Uttar Pradesh Recruitment of Dependent of
Government Servant Dying in Harness
Rules, 1974."

16. To decide issue involved in
present case, Sections 1, 2(c), 3, 7 and 13
3 All. Shivam Pandey & Ors. Vs. State of U.P. & Ors.
487
would be relevant which have already been
emphasized hereinabove.

17. U.P. Act No. 10 of 2020 was
published in Gazette on August 31, 2020.
According to Section 1(2), this Act shall be
deemed to have come into force on
February 01, 2019. Section 13 provides
savings that "the provision of this Act shall
not apply to cases in which selection
process
has
been
initiated
before
commencement of this Act and such cases
shall be dealt with in accordance with the
provisions of law and Government Order as
they stood before commencement. The
O.M. dated 18.02.2019 and 13.08.2019
shall be deemed to have been issued under
this Act.

18. In the present case, ATRE
Examination (a qualifying examination)
was held on 06.01.2019 i.e. prior to 103rd
Constitutional
Amendment.
Further
selection process of appointment of 69000
posts
of
Assistant
Teachers
was
commenced from 16.05.2020 i.e. after
103rd
Constitutional
Amendment
but
before enactment of U.P. Act No.10 of
2020 i.e. on 31.08.2020, therefore, as per
savings clause (Section 13), provisions of
U.P. Act No. 10 of 2020 would not be
applicable and it would be governed by
provisions of law and Government Order as
they stood before the commencement of
U.P. Act No. 10 of 2020.

19. Now I proceed to consider
effect of Office Memorandum dated
18.02.2019 issued by State of U.P. and
effect that U.P. Act No. 10 of 2020 deemed
to have come into force on 01.02.2019. I
have carefully perused the said O.M. It
notes that Social Welfare Department of
State of U.P. has decided to provide 10%
reservation to EWS in all State services as
well as in Educational Institutions and also
determine factors for granting benefits to
EWS which are as follows -:

"4. The Constitution (One
hundred and Third Amendment) Act, 2019
के क्रम में भारि सरकार द्वारा सरकारी सेवाओां में वनयुवक्त के सम्बन्ि
में आवथाक रूप से कमजोर वगों के वलये की गयी आरक्षण की
व्यवस्था के अनुसार ही, आवथाक रूप से कमजोर वगों के ऐसे
व्यवक्तयों, जो अनुसूवचि जावि, अनुसूवचि जनजावि िथा अन्य
वपिडे वगों के वलए आरक्षण की विामान व्यवस्था से आच्िाविि
नहीं है िथा उिर प्रिेर्श राज्य के ही मूल वनवासी है, को राज्यािीन
लोग सेवाओां और पिों पर आरक्षण प्रिान करने हेिु वनम्नवि्
व्यवस्था/मानक वनिााररि वकये जाने का वनणाय वलया गया हैः-

(क) आवथाक रूप से कमजोर वगों के ऐसे व्यवक्तयों
जो अनुसूवचि जावि, अनुसूवचि िनजावि िथा अन्य वपिडेे़ वगों के
वलए आरक्षण की विामान व्यवस्था से आच्िाविि नहीं है, को उिर
प्रिेर्श सरकार की लोक सेवाओां और पिों की सभी श्रेवणयों में सीिी
भिी के प्रक्रम पर 10 प्रविर्शि का आरक्षण प्रिान वकया जाय।

(ख) उिर प्रिेर्श सरकार की लोक सेवाओां और पिों
की सभी श्रेवणयों में सीिी भिी के प्रक्रम पर आवथाक रूप से कमजोर
वगों के वलये अनुमन्य वकये गये 10 प्रविर्शि आरक्षण का लाभ प्राप्त
करने हेिु ऐसे व्यवक्त, पात्र/आहा होंगेः-

(i) वजनके पररवार की समस्ि स्त्रोिो से प्राप्त होने
वाली कुल वावर्ाक आय रू०-8.00 लाख से कम होगी। समस्ि
स्त्रोंिो से आय में वेिन, कृवर्, व्यापार, व्यवसाय आवि से प्राप्त आय
सवम्मवलि होंगी और यह आय आरक्षण हेिु आवेिन करने के वर्ा
के पूवा वर्ा की होंगी। इस उद्देश्य के वलये लाभ प्राप्त करने वाले
व्यवक्त के पररवार में उसके/उसकी मािा-वपिा व 18 वर्ा से कम
आयु के भाई-बहन के साथ-साथ उसका/उसकी, पवि/पत्नी और
18 वर्ा से कम आयु के उसके बच्चे सवम्मवलि होंगे। परन्िुः

(ii) एेेसे व्यवक्त, आवथाक रूप से कमजोर वगा की
श्रेणी में पात्र नहीं होंगेः-

(अ) वजनके पररवार के स्वावमत्व अथवा कब्जे में
05 एकड़ या इससे अविक कृवर् भूवम हो, या

(ब) 1000 वगा फीट या इससे अविक क्षेत्र का
आवासीय फ्लैट हो, या

(स) अविसूवचि नगर पावलकाओां में 100 वगा गज
या अविक क्षेत्र का आवासीय भू-खण्ड हो, या

(ि) अविसूवचि नगर पावलकाओां के क्षेत्र से वभन्न
क्षेत्रों में 200 वगा गज या अविक क्षेत्र का आवासीय भू-खण्ड हो।
488 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) पररवार की आय और पररसम्पवि का प्रमाण
पत्र सम्बवन्िि क्षेत्र के िहसीलिार से अवनम्न अविकारी द्वारा
जारी/प्रमावणि वकया जायेगा।

(iv) उत्तर प्रदेश सरिार िी लोि सेवाओं और
पदों िी सर्ी श्रेकणयों में सीिी र्ती िे प्रक्रम पर आकथगि रूप
से िमिोर वर्ों िे कलये कियुकक्तयों में आरक्षण िी व्यवस्ट्था
कदिांि
01.02.2019
या
इसिे
उपरान्त
अकिसूकचत/कवज्ञाकपत होिे वाली ररकक्तयों पर प्रर्ावी होंर्ी।"

20. At this stage, it would be apposite
to refer Section 7 of U.P. Act No. 10 of
2020 that -:

"For the purpose of reservation
provided under this Act, income and assets
certificate shall be issued by such authority
or officer not below the rank of Tehsildar in
the State and in such manner and in such
form as the State Government may, by
order, provide.

The
office
memorandum
no.1/2019/4/1/2002/ka-2/ 19T.C.II, dated
18 February 2019 shall be deemed to
have been issued under this section.".

21. Now, I have to consider scope of
above referred clause 4 (IV) of O.M. dated
18.02.2019 that since selection process for
recruitment of 69000 Assistant Teachers
was commenced (if the argument of
petitioner is deemed to be accepted) with a
G.O.
dated
16.05.2019
i.e.
after
18.02.2019, whether State of U.P. was
under a legal obligation to
 provide reservation for EWS or not?

22. The above referred part of O.M.
states that arrangement of reservation to
EWS will be applicable on notification
issued after 01.02.2019 for recruitment of
State services, however, at that stage, no
Act was enacted in State of U.P. and above
arrangement was provided by an Office
Memorandum. Later on, it was validated by
way of enactment of U.P. Act No. 10 of
2020.

23. As referred above, later on U.P.
Act No. 10 of 2020 was enacted on
31.08.2020 with a specific saving clause
that provisions of this Act shall not apply to
cases
which
were
initiated
before
commencement of Act and admittedly in
present case, process of selection was
initiated prior to 31.08.2020 (as per stand
of both parties). An Act has always more
legal value in compare to any Office
Memorandum, therefore in case of any
ambiguity, provisions of Act No. 10 of
2020 would prevail. Section 7 of U.P. Act
No. 10 of 2020 provides that O.M. dated
18.02.2019 shall be deemed to have issued
under said scheme and O.M. was provided
legal sanctity only after aforesaid Act was
come into force and not before it and since
procedure for selection for 69000 posts of
Assistant Teachers was commenced prior to
31.08.2020, therefore, State of U.P. was not
legally bound to provide EWS reservation
in said recruitment process.

24. By validating O.M. dated
18.02.2019, the Act has validated if any
reservation was provided to EWS on basis
of said O.M. prior to enactment of U.P. Act
No. 10 of 2020, but it could not be correct
to hold that on basis of said O.M., State
was bound to provide reservation to EWS
in all selection process, even prior to
commencement of U.P. Act No. 10 of 2020
and it was only after enactment of said Act,
the State is under a legal obligation to
provide reservation to EWS and not before
it.

25. In aforesaid circumstances, this
Court is not entering to the dispute whether
ATRE Examination is a starting point of
recruitment process of Assistant Teacher or
3 All. Rabindra Kumar Vs. Disciplinary Authority/Assistant General Manager (O.A.D.) & Ors. 489
not as in view of above discussion, it does
not require as well as in view of above
discussion, other argument of petitioners'
side has no legal basis as well as judgments
cited are distinguishable on facts as well as
on law.

26. The outcome of above discussion
is that relief sought could not be granted,
accordingly,
all
writ
petitions
are
dismissed.
----------
(2024) 3 ILRA 489
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2024
BEFORE
THE HON'BLE DONADI RAMESH, J.

Writ A No. 4080 of 2022

Rabindra Kumar ...Petitioner
Versus
Disciplinary Authority/Assistant General
Manager (O.A.D.) & Ors. ...Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh, Sri Adarsh Singh

Counsel for the Respondents:
Sri Satish Chaturvedi, Sri Sumit Kakkar

A. Service Law - Disciplinary proceeding -
Punishment - Dismissal - Allegation of
impersonation - Earlier dismissal order
was set aside leaving it open to authority
to proceed afresh - Re-enquiry report was
based on a report of handwriting expert,
who was not registered as an expert - No
corroboration of expert report with other
material evidence could be made, though
opportunity to cross examine the expert
was given - No consideration was made
on the issue of missing of photo, in spite
of specific observation made by High
Court in its earlier order - Permissibility -
Held, the respondents have passed the
impugned orders solely depending on the
report submitted by one R. Krishna, who is
handwriting expert, without verifying the
other material and without establishing
that the petitioner has not appeared in the
examination - High Court set aside the
impugned order remanding the matter to
afresh enquiry. (Para 34, 35, 37, 38 and
39)

Writ petition disposed of. (E-1)

List of cases cited :-

1. Ran Vijay Singh Vs U.O.I.; 2018 (4) AWC
3581

2. Writ A No. 21096 of 2018; Vijay Pal & ors. Vs
U.O.I.& ors. decided on 16.05.2023

(Delivered by Hon'ble Donadi Ramesh, J.)

1. Heard Sri Indra Raj Singh, learned
counsel for the petitioner and Sri Sumit
Kakkar,
learned
counsel
for
the
respondents.

2. The petitioner by the instant writ
petition seeks quashing of the impugned
order dated 29.11.2021 and 27.01.2022
passed by respondent no. 1 and 2
(Annexure Nos. 20 and 23).

3. The petitioner having graduate
degree is eligible for the post of clerical
staff. Pursuant to the notification, he has
submitted Online application form for
selection in State Bank of India. The
petitioner was issued an admit card bearing
Roll No.2201047741 with Registration
No.4136762 for appearing in the written
examination scheduled to be held on
15.11.2009. Accordingly, the petitioner had
appeared in the written examination on
15.11.2009 at Jwala Devi Vidya Mandir
Post
Graduate
College, Anand
Bag,
Kanpur.
The
said
examination
was
conduced
in
the
presence
of
two
invigilators including Bank invigilator. At