# Singh Mukesh Kumar v. State Of U.P. & Ors. 214 INDIAN LAW REPORTS ALLAHABAD SERIES - **Citation:** (2016) 5 ILRA 213 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-24 - **Bench:** Amreshwar Pratap Sahi, Vivek Kumar Birla - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/singh-mukesh-kumar-v-state-of-u-p-ors-214-indian-law-reports-allahabad-series-43927 - **Pages:** 4 ## Text 5 All. Singh Mukesh Kumar Vs State Of U.P. & Ors. 213 available then, against which the appellant had been appointed, could have been filled-up only by promotion and not otherwise. 13. In view of the law laid down by the Full Bench in the case of Heera Lal (supra) over-ruling the ratio of the judgment delivered in the present case on 6.8.2009, reservation to the extent of 21% for Scheduled Caste against the post available could not have been applied arithmetically at all and thus, the appellant-Mahendra Kumar Gond could not have been appointed giving the benefit of reservation. His direct appointment therefore was in violation of the law relating to reservation as laid down in the aforesaid decisions which went unnoticed while delivering the judgment dated 6.8.2009. However, the fact remains that as on date, there are two posts still available and are lying vacant in the institution. 14. In this view of the matter, we are of the considered opinion that at this stage, it will not be appropriate to set aside the appointment of the appellant, but at the same time, since the judgment deserves to be reviewed, we do so by modifying the judgment dated 6.8.2009 to the extent that the law laid down therein vis-a-vis reservation is no longer the correct law in view of the Full Bench decision in the case of Heera Lal (supra). Further, since two vacant posts are available in the institution as on date, the judgment of the learned Single Judge dated 29.6.2009 can be implemented extending the benefit of promotion to the respondent-petitioner Vinod Kumar Singh. 15. We accordingly recall the judgment dated 6.8.2009 to the extent it sets aside the claim of the respondent-petitioner. The judgment would stand modified with a direction that the appellant's appointment shall not be disturbed, but the claim of the respondent-Vinod Kumar Singh against the two available posts shall be forthwith considered and the District Inspector of Schools, Azamgarh shall proceed to pass appropriate orders vis-a-vis the respondent-petitioner Vinod Kumar Singh in terms of the direction of the learned Single Judge dated 29.6.2009 within eight weeks from the date of production of a certified copy of this order. 16. The review application stands allowed to the extent above and is disposed off with the said directions accordingly. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 24.05.2016 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. THE HON'BLE VIVEK KUMAR BIRLA, J. Special Appeal No.- 1182 Of 2008 Singh Mukesh Kumar ...Appellant Versus State Of U.P. & Ors. ...Respondents 214 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for Appellant: Umakant, Ram Prakash Shukla Counsel for Respondents: C.S.C., Ranjan.Srivastva. Held:- Appointment to the post of Farrash must strictly follow Rule 4(2) and Rule 12 of the 1955 Rules. Appointment without advertisement, selection procedure and waiting list is illegal. The appellant acquired no right to continue in service. Appeal dismissed. Case Law Cited:- None (Delivered by Hon'ble Amreshwar Pratap Sahi, J. & Hon'ble Vivek Kumar Birla, J.) 1. Heard Sri Umakant, learned counsel for the appellant and Sri Manish Goyal, learned counsel for the respondents. 2. The matter relates to the appointment on the post of Farrash in the district judgeship of Jalaun at Orai. The services of the appellant were dispensed with in the circumstances that have been already indicated in detail by the learned Single Judge. 3. The two issues that fell for consideration in relation to the claim of the appellant as well as other employees, were, as to whether the appointments had been preceded by a valid advertisement and secondly whether a valid selection procedure had been followed in terms of the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955 (hereinafter referred to as the '1955 Rules'). While proceeding to record findings, the learned Single Judge even though proceeded to hold that the judgement in the case of Sachin Kumar vs. State of UP, 2005 ALJ 3100 would apply prospectively, yet advertisement was a necessary concomitant of the selection procedure but the judgement would not apply retrospectively. On the issue of the selection procedure having been violated, the learned Single Judge took up the individual cases separately and recorded separate findings. 4. The writ petition filed by the appellant, namely, writ petition no. 56744 of 2006 was dismissed by recording the following findings: "In Writ Petition 56744 of 2006, the petitioner Singh Mukesh Kumar was appointed as Farrash for a period of three months. A Farrash can only be appointed from a waiting list under Rule 4(2) of the Rules of 1955 which contemplates appointments by direct recruitment after due advertisement and a selection process. Further, a waiting list is required to be prepared under Rule 12 of the Rules. The counter affidavit as well as the record reveals that no selection procedure was 5 All. Singh Mukesh Kumar Vs State Of U.P. & Ors. 215 adopted nor an advertisement was made nor any waiting listing was prepared and that the District Judge had arbitrarily appointed the said petitioner without following the procedure. Consequently, this Court is of the opinion, that the discretion exercised by the District Judge in giving an appointment to the petitioner, Singh Mukesh Kumar, was in complete violation of Rules 4(2) of the Rules of 1955. Consequently, the said petitioner Singh Mukesh Kumar is not entitled for any relief and his writ petition is dismissed." 5. Rule 4(2) of the 1955 Rules as has been indicated therein is extracted in its entirety hereinafter: "4. Method of recruitment.- Recruitment to the following posts in the establishment shall be made: (1) Daftaries and bundle lifters.- By promotion strictly on merits from amongst processservers,orderlies, office peons, and farrashes who have put in at least five years' service as such: Provided that no person shall be promoted to these posts unless he is able to read and writ Hindi in Devnagri Script with correctness and fluency and can discharge the duties of the office satisfactorily and in the case of the post of daftari unless he also knows book-binding. (2) Process servers, orderly peons, office peons and farrashes. (a) by appointment of candidates on the waiting list prepared under rule 12 or, (b) by transfer from one post to another according to suitability. (3) chawkidars, malis, waterman and sweepers.- By direct recruitment on the discretion of District Judge." 6. A perusal thereof clearly indicates that a selection procedure is envisaged therein and, therefore, the appointment to the post of process servers, orderly peons, office peons and farrashes could have been made only under the aforesaid prescribed procedure as per Rule 4(2) of 1955 Rules. 7. The respondents had filed a counter affidavit that was taken notice of by the learned Single Judge and relying on the aforesaid rules, the conclusion was drawn that the said process has not been followed. Even before us, no material has been brought on record that may impel us to take a different view with regard to the procedure relating to the method of recruitment as per Rule 4(2) of 1955 Rules. A counter affidavit has been filed to this appeal as well and on the issue of advertisement several other subsequent judgements have also been relied upon as also the circular of the High Court dated 20th February, 1996 to contend that vacancies were required to be notified and applications were to be invited in view of the observations made by learned Single Judge of this Court in the case of Ram Babu vs. District Judge, Banda in writ petition no. 5857 of 1994 and Ran Das Pal vs. District Judge, Banda in writ petition no. 5913 of 1994. The said circular also 216 INDIAN LAW REPORTS ALLAHABAD SERIES indicates the method of the preparation of a waiting list that also does not appear to have been followed by the learned District Judge in the matter of appointment of the appellant. 8. Sri Umakant, learned counsel for the appellant has invited the attention of this Court to the letter of appointment and confirmation order of the appellant that are Annexure-1 and Annexure-2 respectively to the writ petition. The said appointment letter and confirmation order leaves no room for doubt that the appellant was appointed as a Farrash and, therefore, it could have been done only in accordance with the procedure as indicated above. Since neither the procedure has been followed nor the circular has been adhered to, we do not find any reason to take a different view than what has been stated above. 9. On the issue of no advertisement, the judgement in the case of Sachin Kumar (supra) stands supervened by a host of judgements that have been filed along with the counter affidavit but in the present case even the circular of the High Court dated 20.2.1996 has been ignored by the District Judge and has gone unnoticed in the interim order dated 15.9.2008 passed in this appeal. 10. The appeal therefore lacks merit and is accordingly dismissed. Interim order dated 15.9.2008 is hereby discharged. --------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 02.05.2016 BEFORE THE HON'BLE MRS. RANJANA PANDYA, J. Criminal Appeal No.- 1267 Of 1982 Prem Singh ...Appellant Versus State Of U.P. & Ors. ...Respondents Counsel for Appellant: Smt. Rathore, Kapil Rathore, S.S. Rathore,T. Rathore,Vikram Deo Singh Rathore,Vinay Kumar Singh Counsel for Respondents: A.G.A. Present appeal was filed challenging the order dated 12.05.1982 passed by XIIth Additional Sessions Judge, Agra, in Sessions Trial No. 166 of 1980 whereby the accused-appellant has been convicted and sentenced to five years' rigorous imprisonment under section 304 part II read with Section 34 I.P.C.; three months rigorous imprisonment under section 323 read with Section 34 I.P.C. On 5.02.1979 FIR was lodged by the informant stating that Mohar Singh was going to his college, as he reached near field of Khubi, suddenly, Prem Singh assaulted him with the lathi who came out of the field of Khubi. When he raised alarm, Nek Ram reached the place of incident who was also assaulted by Prem Singh, Mangal Singh and Bhikam Singh by means of lathi.