# Shivendra Vashishtha v. State of U.P

- **Citation:** (2023) 7 ILRA 306
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-04
- **Case number:** Writ-A No. 5435 of 2010
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivendra-vashishtha-v-state-of-u-p-50425
- **Pages:** 4

## Headnote

Law
-
Appointment
-
Discrimination in allowing to join the post
cannot be permitted in similarly situated
selected candidates. It is evident that an
advertisement was published and on the basis
of appointment letter issued to the petitioner
along with six other persons, four persons
namely, Neeraj Kumar Gupta, Santosh Kumar
Upadhyaya, Sanjeev Singh and Seema Verma,
were
given
joining
in
Medical
College,
Azamgarh. Later on, their appointment has been
cancelled
vide
order
dated
22.05.2009.
Subsequently, as a result of order of this Court
in several writ petitions, the order dated
22.05.2009 was recalled by the respondents and
the
aforementioned
four
persons
were
permitted to re-join their respective post.
However, the petitioner, whose name finds
place at serial No. 4 in the aforesaid list, has not
been permitted to join on the ground of
technicalities. This fact itself has been admitted
in the counter affidavit that four persons were
initially permitted to join on the instructions of
higher authorities. Therefore, such kind of
discrimination cannot be permitted to go on.
(Para 13)

If the aforementioned four persons were
the part of same selection under same
advertisement and were permitted to join
the post under same appointment letter,
there is no occasion to not permit the
petitioner to join his respective post. (Para
14)

Writ petition allowed. (E-4)

Present petition prays for issuance of a
writ, order or direction in the nature of
mandamus commanding the respondents
to allow the petitioner to work on the post
of
Pharmacist
in
pursuance
of
appointment order dated 24.02.2009 and
in the light of judgments and orders dated
16.07.2010, 22.02.2010 & 23.03.2010,
with a direction to the respondents to
issue joining letter to the petitioner and to
consider and decide the representation
dated 15.07.2010.

## Text

306 INDIAN LAW REPORTS ALLAHABAD SERIES
"Shri V.K. Tiwari", in the second line of
second paragraph "2022" be read in place
of "2023" and in the third line of third
paragraph "2019" be read in place of
"2009". All the corrections have been made
in the order dated 24.04.2023.
----------
(2023) 7 ILRA 306
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.07.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 5435 of 2010

Shivendra Vashishtha ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Vishal Verma

Counsel for the Respondent:
C.S.C., Mahendra Pratap, Sanjay Bhasin

A.
Service
Law
-
Appointment
-
Discrimination in allowing to join the post
cannot be permitted in similarly situated
selected candidates. It is evident that an
advertisement was published and on the basis
of appointment letter issued to the petitioner
along with six other persons, four persons
namely, Neeraj Kumar Gupta, Santosh Kumar
Upadhyaya, Sanjeev Singh and Seema Verma,
were
given
joining
in
Medical
College,
Azamgarh. Later on, their appointment has been
cancelled
vide
order
dated
22.05.2009.
Subsequently, as a result of order of this Court
in several writ petitions, the order dated
22.05.2009 was recalled by the respondents and
the
aforementioned
four
persons
were
permitted to re-join their respective post.
However, the petitioner, whose name finds
place at serial No. 4 in the aforesaid list, has not
been permitted to join on the ground of
technicalities. This fact itself has been admitted
in the counter affidavit that four persons were
initially permitted to join on the instructions of
higher authorities. Therefore, such kind of
discrimination cannot be permitted to go on.
(Para 13)

If the aforementioned four persons were
the part of same selection under same
advertisement and were permitted to join
the post under same appointment letter,
there is no occasion to not permit the
petitioner to join his respective post. (Para
14)

Writ petition allowed. (E-4)

Present petition prays for issuance of a
writ, order or direction in the nature of
mandamus commanding the respondents
to allow the petitioner to work on the post
of
Pharmacist
in
pursuance
of
appointment order dated 24.02.2009 and
in the light of judgments and orders dated
16.07.2010, 22.02.2010 & 23.03.2010,
with a direction to the respondents to
issue joining letter to the petitioner and to
consider and decide the representation
dated 15.07.2010.

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Vishal Verma, learned
counsel for the petitioner and learned
Additional C.S.C. for the respondent -
State.

2. By means of present writ petition,
the petitioner has prayed for issuance of a
writ, order or direction in the nature of
mandamus commanding the respondents to
allow the petitioner to work on the post of
Pharmacist in pursuance of appointment
order dated 24.02.2009 with a direction to
the respondents to issue joining letter to the
petitioner with a further prayer to issue a
writ, order or direction in the nature of
mandamus commanding the respondents to
consider and decide the representation
dated
15.07.2010
and
to
allow
the
petitioner to work on the post in the light of
7 All. Shivendra Vashishtha Vs. State of U.P.
307
judgments and orders dated 16.07.2010,
22.02.2010 & 23.03.2010.

3. Brief facts giving rise to the present
writ petition are as under:

Sr.
No.
Relevant Facts of the Case
a.
An advertisement was issued on
29.08.2008 by the Director General
of Medical Education and Training
(for short, "DGME"), Lucknow for
the
post
of
Pharmacist
in
Government
Medical
College,
Kannauj.
b.
On 21.01.2009, a notification was
issued that all the applicants who
possess 62% marks in the diploma
of pharmacy shall appear on
28.01.2009 to 03.02.2009.
c.
On 02.02.2009, a call letter was
sent to the petitioner with other six
persons by the DGME to appear in
the interview for the post of
Pharmacist
and
in
pursuance
thereof, the petitioner appeared in
the interview.
d.
On
18.02.2009,
a
letter
was
endorsed to DGME by the Principal
of Medical College, Azamgarh
asking to fill the different posts
from the waiting list of Medical
College, Kannauj.
e.
On 24.02.2009, an appointment
letter to the petitioner along with
other six persons was issued by the
Medical College, Kannauj to join
on the post of Pharmacist in
Medical
College,
Azamgarh.
Thereafter, the petitioner was not
allowed to join, however, four
persons were allowed to join in
pursuance to the said appointment
letter.
f.
On 22.05.2009, the appointment of
the four persons, who had join the
services, was cancelled.
g.
On 25.06.2009, Hon'ble High Court
has stayed the cancellation order
dated 22.05.2009 and the four
persons were allowed to rejoin on
04.11.2009.
h.
On 15.07.2010, the petitioner made
representation to the concerned
authorities, which is lying pending
consideration and no order has been
passed till date.
i.
Hence, the present writ petition has
been filed before this Court.

4. Submission of learned counsel for
the petitioner is that appointment of the
petitioner was made after following due
procedure and the petitioner has faced
selection committee and appointment letter
has been issued to him and on the ground
of any lapse / technical objection on the
part of the respondents, the petitioner
should not be deprived.

5. He further submitted that there was
no allegation against the petitioner for
concealment or fraud, therefore, he should
not be paralyzed by not allowing him to
join the post.

6. He next submitted that name of the
petitioner finds place at serial No.4 in the
appointment letter issued to the petitioner
along with six other persons. He submitted
that under the order of this Hon'ble Court,
four persons have been permitted to re-join
the said post except the petitioner and in
this regard the petitioner has made
representation also, which is lying pending
and no action has been taken thereupon.
Therefore, the respondents cannot be
permitted to adopt pick and choose formula
adopting
discriminatory
policy
by
depriving the petitioner.
308 INDIAN LAW REPORTS ALLAHABAD SERIES

7. On the other hand, learned
Additional C.S.C. submitted that the
advertisement
dated
29.08.2008
was
published with regard to posts including the
post of Pharmacist for appointing the
candidates in Medical College, Kannauj.
He submitted that case of the petitioner is
that he has been appointed by Dr. R.K.
Gupta, the Principal of Medical College,
Kannauj from the waiting list prepared for
appointments in Medical College, Kannauj.
He submitted that respondent No.2 has
never authorized to the Principal of
Medical College, Kannauj to issue such
appointment
letters
appointing
the
candidates for Medical College, Azamgarh
and he was not the competent authority to
do so.

8. He further submitted that similar
situated persons to the petitioner, namely,
Santosh Kumar Upadhyaya, Neeraj Gupta,
Sandeep Kumar Singh and Sushri Seema
Verma
produced
photocopy
of
the
appointment letter and were permitted to
join the post on the basis of instructions
issued by higher authorities. He submitted
that the petitioner has neither submitted
original copy of the appointment letter nor
the same is available with him. He further
submitted that the appointment letters were
having a rider to join within 15 days, and in
case of non-joining within 15 days, the
same will be automatically cancelled,
therefore, the petitioner cannot benefit of
the same after such a long period.

9. He next submitted that the
appointment granted to similarly situated
persons was cancelled by the respondents,
which was stayed by this Hon'ble Court in
various writ petitions, however, the case. of
the petitioner is not covered with those
candidates, as neither the petitioner joined
the post in question nor his appointment
was cancelled at any point of time. He
submitted that the petitioner has filed the
writ petition after more than one year and
two months, therefore, no cause of action
remains and the writ petition is liable to be
dismissed.

10. He lastly submitted that the
Principal of Medical College, Kannauj is
not the appointing authority to an employee
at
Medical
College,
Azamgarh.
He
submitted that no procedure has been
followed to appoint the candidates in
Medical College, Azamgarh, as neither
there
was
advertisement
issued
nor
selection by interview, appointment letters
and joining were conducted by the
appointing authority.

11. Learned counsel for the petitioner
on the basis of rejoinder affidavit submitted
that the DGME has the full jurisdiction to
fill vacancy in any Government Medical
College
running
in
the
State.
An
appointment letter to the petitioner along
with six other persons was issued by
Principal, Medical College Kannauj on
24.02.2009 to join the post of Pharmacist in
Medical College, Azamgarh. He submitted
that authencity of appoinment letter dated
24.2.2009 is itself proved from joining of
other four persons, namely, Neeraj Kumar
Gupta,
Santosh
Kumar
Upadhyaya,
Sanjeev Singh and Seema Verma and the
respondents have denied the joining to the
petitioner on the basis of technical
objections.

12. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record.

13. On perusal, it is evident that an
advertisement was published and on the
basis of appointment letter issued to the
7 All. Prof. Amar Nath Vs. State of U.P. & Ors.
309
petitioner along with six other persons, four
persons named above were given joining in
Medical College, Azamgarh. Later on, their
appointment has been cancelled vide order
dated 22.05.2009. Subsequently, as a result
of order of this Court in several writ
petitions, the order dated 22.05.2009 was
recalled by the respondents and the
aforementioned
four
persons
were
permitted to re-join their respective post.
However, the petitioner, whose name finds
place at serial No.4 in the aforesaid list, has
not been permitted to join on the ground of
technicalities. This fact itself has been
admitted in the counter affidavit that four
persons were initially permitted to join on
the instructions of higher authorities.
Therefore, such kind of discrimination
cannot be permitted to go on.

14. If the aforementioned four persons
were the part of same selection under same
advertisement and were permitted to join
the post under same appointment letter,
there is no occasion to not permit the
petitioner to join his respective post.

15. In view of reasons recorded
above, the writ petition deserved to be
allowed and is hereby allowed.

16. A writ in the nature of mandamus
is issued commanding the respondent No.2
to look into the matter and if case of the
petitioner
is
akin
to
aforementioned
persons,
namely,
Santosh
Kumar
Upadhyaya, Neeraj Gupta, Sandeep Kumar
Singh and Sushri Seema Verma, he shall
also be given joining within a period of
four weeks from the date of production of a
certified copy of this order.

17. No order as to costs.
----------
(2023) 7 ILRA 309
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.05.2023

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-A No. 5750 of 2023

Prof. Amar Nath ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ms. Mamta, Ms. Jigyasa Singh

Counsel for the Respondents:
C.S.C., Sri M.N. Singh, Sri Fuzail Ahmad
Ansari

A.
Service
Law
-
Recruitment
-
Reservation
-
U.P.
Public
Services
(Reservation for SC, ST and OBC) Act,
1994 - Section 3(5) - The roster shall be
applicable strictly in consonance with the
reservation and if the same has to be
properly given credence to the yearwise
vacancy arising out of vacant posts
created after retirement or vacated on any
reason, the same has to be strictly filled
up with the reservation available for each
and every category. (Para 7)

The posts which are meant for the reserved
category, would be offered only to the reserved
category so long as the reserved roster point
are not occupied by reserved category. In case
2 posts are reserved out of total cadre strength
of the Principal, Government Ayurvedic Medical
College which is 8 in number then in that case,
the reservation shall be available for reserved
category i.e. specifically for the Scheduled Caste
to the tune of 21% shall exceed to 25%,
moreover, the roster which is 100 point roster
and the bifurcation of the posts available for the
reserved category as well as for the unreserved
category shall be applicable for the 8 posts
(total cadre strength) has to be recalculated in
terms of 100 point roster, and as such, the
entire exercise as initiated by the U.P. Public