# Smt. Kalpana Agrahari v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1233
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-10-17
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kalpana-agrahari-v-state-of-u-p-and-others-41951
- **Pages:** 4

## Headnote

Constitution of India-Article 226-Right to
appointment
once
selection
process
started-appointment
letter
issued-can
not be file up such vacancy-by transfer
from
another
judgeship-held-joining
within one month-transfer employee
accommodated any other place or to
adjust in future vacancy.

Held: Para 10

Respectfully following the aforesaid two
decisions, I am of the view that the
filling up vacancy by transfer of Arun
1234 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Kumar Singh from Etawah Judgeship to
Banda Judgeship after the advertisement
for filling up the 14 vacancies and on
completion of the selection process and
the issue of appointment letter to the
petitioner
being
selected
was
not
justified and has no consequence and,
therefore, the petitioner is entitled to be
appointed in pursuance of the vacancy
advertised.
Case law discussed:
2010 (1) ESC 250 (All); 2008 (4) ESC 2799
(All) (DB); 2006 (5) AWC 4682

## Text

3 All] Smt. Kalpana Agrahari V. State of U.P. and others
1233
inquiry particularly in the light of the fact
that the order sheet has some manipulation
in the form of pasting of a piece of paper for
hiding an earlier written order by changing
the same.

11. Though I am inclined to uphold
preliminary objection of learned counsel for
respondent no.7 that the petitioner is a mere
complainant hence cannot be allowed to
challenge the order passed by the licensing
authority withdrawing show cause notice
and dropping the proceedings under Section
17(3) of the Arms Act 1959 but exercising
the powers in constitutional extraordinary
jurisdiction under Article 226 this Court
cannot remain a silent spectator if it comes
to the knowledge of the Court that the
executive authorities in sensitive matter like
regulation of firearm are acting in a dubious
manner which if allowed to perpetuate may
result in more serious consequences to the
detriment of public at large. In the
circumstances, I decline to interfere in the
order impugned in the writ petition at the
instance of the petitioner but dispose of the
writ petition with the following directions:

(I) This judgment shall not preclude
the
State
Government
from
making
appropriate inquiry in the manner and the
circumstances, the impugned order has been
passed by respondent no.3.

(II)
The
Chief
Secretary,
U.P.
Government shall get appropriate inquiry
into the matter and if necessary, through
vigilance establishment or CB CID, as the
case may be, and submit progress report on
16.1.2012.

(III) In case the State Government
finds it necessary to pass order relating to
continuation
of
firearm
licences
no
551/1983
and
5469
possessed
by
respondent no.7, it can take such action as
permissible in law and this judgment shall
not come in its way.

(IV) Registrar General is directed to
send a copy of this order forthwith to Chief
Secretary U.P. Government for information
and compliance.

(V) This writ petition stands disposed
of for all purposes except for perusal of the
progress report for which it shall be listed
on 16.1.2012.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2011

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No.44591 Of 2011

Smt. Kalpana Agrahari
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Mishra

Counsel for the Respondents:
Sri Amit Sthalekar
Sri Yashwant Verma
C.S.C.

Constitution of India-Article 226-Right to
appointment
once
selection
process
started-appointment
letter
issued-can
not be file up such vacancy-by transfer
from
another
judgeship-held-joining
within one month-transfer employee
accommodated any other place or to
adjust in future vacancy.

Held: Para 10

Respectfully following the aforesaid two
decisions, I am of the view that the
filling up vacancy by transfer of Arun
1234 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Kumar Singh from Etawah Judgeship to
Banda Judgeship after the advertisement
for filling up the 14 vacancies and on
completion of the selection process and
the issue of appointment letter to the
petitioner
being
selected
was
not
justified and has no consequence and,
therefore, the petitioner is entitled to be
appointed in pursuance of the vacancy
advertised.
Case law discussed:
2010 (1) ESC 250 (All); 2008 (4) ESC 2799
(All) (DB); 2006 (5) AWC 4682

(Delivered by Hon'ble Rajes Kumar, J. )

1. Heard Sri S.K.Mishra, learned
counsel
for
the
petitioner,
learned
Standing Counsel appearing on behalf of
respondent no.1 and Sri Yashwant Verma,
learned counsel appearing on behalf of
respondent nos.2 and 3.

2. For the purpose of filling up of 14
vacancies in Class III category in Banda
Judgeship,
a selection
process
was
initiated in pursuant to which the
Selection Committee drew up its minutes
and the same was accepted by the District
Judge
in
pursuance
of
which
advertisement
was
issued
and
examination
was
h0.79"eld
on
27.02.2011. The Selection Committee has
been constituted to complete the selection
process, get the copies of the examinees
examined and get the result declared. The
petitioner was selected in Class III cadre
in general category of the candidates. An
appointment
letter
was
issued
on
30.03.2011 by the District Judge, Banda
appointing the petitioner on temporary
basis. The petitioner was asked to report
for joining within fifteen days and further
asked to bring medical certificate, issued
by Chief Medical Officer, Banda and the
original educational certificates. When the
petitioner appeared for joining, she has
not been allowed to join.

3. A letter dated 07.04.2011 was
issued by Senior Administrative Officer,
Banda to the petitioner stating therein that
he has been asked by the District Judge,
Banda to inform you that you have been
selected in Class III post but since by the
order of Hon'ble High Court, one Sri Arun
Kumar Singh has been transferred from
Etawah Judgeship to Banda Judgeship,
one post has been filled by the transfer
and the total vacancy has been reduced by
one post, therefore, it is not possible to
appoint you and in case in future if any
vacancy will be available you will be
given appointment. According to the
petitioner, subsequently five posts of
Class III posts fallen vacant due to the
reasons mentioned in paragraph no.12 of
the writ petition, which is not disputed but
in paragraph no.13 of the counter
affidavit, it is stated that it relates to the
future
vacancies
which
came
into
existence after the culmination of the
selection process. When the vacancy was
occurred, the petitioner wrote several
letters annexed along with the writ
petition claiming her appointment. When
the
petitioner
could
not
be
given
appointment, the petitioner filed the
present writ petition seeking a direction to
the District Judge, Banda permitting the
petitioner to join in pursuance of the order
dated 30.03.2011 further to count his
seniority since 05.04.2011. In paragraph
no.4 of the counter affidavit, it is stated
that by letter dated 29.03.2011 issued by
High Court, a Class III employee of
Etawah Judgeship was relieved from
Etawah on 31.03.2011 and joined at
Banda Judgeship on 01.04.2011.
3 All] Smt. Kalpana Agrahari V. State of U.P. and others
1235

4. Learned counsel for the petitioner
submitted that once for filling up of 14
existing vacancies in respect of which
there is no dispute, the process of
selection has been started and the
petitioner has been selected and the
appointment letter has been issued, the
petitioner's appointment can not be denied
on the ground that one vacancy has been
reduced on account of the transfer of a
Class
III
employee
from
Etawah
Judgeship
to
Banda
Judgeship.
He
submitted that once the selection process
has been initiated and culminated by the
completion of selection process and by
issuance of appointment letter, the post
can not be reduced by transferring one of
the employee to Banda Judgeship and
such transfer is illegal and unjustified and
could not be given effect to. He further
submitted that the petitioner has been
issued appointment letter on 30.03.2011
while Arun Kumar Singh has been
relieved on 31.03.2011 from Etawah
Judgeship. After the issue of appointment
letter to the petitioner, such transfer could
not be given effect to and the total
vacancies could not be reduced by one
post on account of transfer. Therefore, the
petitioner is entitled to be permitted to
join in pursuance of the appointment letter
dated 30.03.2011.

5. In support of the contention he
relied upon the decision of the learned
Single Judge of this Court in the case of
Raja Ram etc. Vs. State of U.P. and
others, reported in 2010 (1) ESC, 250
(All), wherein it has been held that once
process of selection by direct recruitment
has
begun
by
issuance
of
an
advertisement inviting applications, same
can not be filled by transfer and also on
the Division Bench decision in the case of
Smt. Amita Sinha Vs. State of U.P. and
others, reported in 2008 (4) ESC, 2799
(All) (DB).

6. Sri Yashwant Verma, learned
counsel appearing on behalf of respondent
nos.2 and 3 submitted that mere by
issuance of appointment letter, the right to
join did not occur in case there was no
vacancy. He submitted that it is true that
the petitioner was selected and the
appointment
letter
was
issued
but
meanwhile Arun Kumar Singh has been
transferred from Etawah Judgeship to
Banda Judgeship and, therefore, one
vacancy was reduced and the petitioner's
claim of appointment has rightly been
denied. He further submitted that after the
completion of selection process, the
petitioner can not claim her appointment
against future vacancy.

7. In support of his argument, he
relied upon the Division Bench decision
of this Court in the case of District
Judge,
Baghpat
and
another
Vs.
Anurag Kumar and others, reported in
2006 (5) AWC, 4682.

8. I have considered the rival
submissions. The pleading in the writ
petition are not very sound but in sum and
substance the relief claimed by the
petitioner is that in pursuance of selection
and appointment letter, she should be
allowed to join. The Division Bench of
this Court in the case of Smt. Amita Sinha
(Supra) passed in Special Appeal upheld
the view of the learned Single Judge, who
has held that once the process of selection
by Commission has begun by issuance of
advertisement inviting applications, the
vacancy can not be filled by transfer.
Subsequent appointment by transfer after
the issue of advertisement was held
invalid by learned Single Judge. The
1236 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Division Bench of this Court has held that
upto
the
stage
of
computation
of
vacancies, appointment by transfer can be
made and after the advertisement of the
vacancy by Commission, such vacancy
can not be filled up by transfer.

9. The learned Single Judge in the
case of Raja Ram etc. Vs. State of U.P.
and others (Supra) has held as follows:

"So far as the second issue qua
appointment by way of transfer of a
teacher against advertised vacancy is
concerned, a Division Bench of this
Court in the case of Smt. Amita Sinha
Vs. State of U.P. And others (Supra)
has held that once the process of
selection by direct recruitment has
begun by issuance of an advertisement
inviting applications, the same can not
be filled by transfer. Hence in view of
the said Division Bench judgment,
appointments made by transfer against
an
advertised
vacancy
of
Advertisement No.1 of 2005 is rendered
illegal and of no consequence."

10. Respectfully following the
aforesaid two decisions, I am of the view
that the filling up vacancy by transfer of
Arun
Kumar
Singh
from
Etawah
Judgeship to Banda Judgeship after the
advertisement for filling up the 14
vacancies and on completion of the
selection process and the issue of
appointment letter to the petitioner being
selected was not justified and has no
consequence and, therefore, the petitioner
is entitled to be appointed in pursuance of
the vacancy advertised.

11. The decision cited by learned
counsel appearing on behalf of respondent
nos.2 and 3 in the case of District Judge,
Baghpat and another Vs. Anurag
Kumar and others (Supra) is of no help.
It does not decide the issue involved in
the present case. It only provides, 1) the
advertisement of number of post not
existing on the day of advertisement, was
de hors the Rules, and 2) the selection of
the persons against future vacancy which
occurred after advertisement is illegal.

12. In the circumstances, the writ
petition is allowed and the District Judge,
Banda is directed to permit the petitioner
to join within a period of one month from
the date of presentation of the certified
copy of this order. It is further directed
that the District Judge, Banda may request
the Hon'ble High Court to transfer Arun
Kumar Singh to any other place or to
adjust him against future vacancy.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.09.2011

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition N0. 52048 of 2011

Vikas Jauhari

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Vikas Tripathi

Counsel for the Respondents:
Ms. Suman Sirohi (S.C.)
C.S.C.

U.P
Recruitment
of
Dependents
of
Government Servants (Dying in Harness)
Rule 1974-Rule-2(c), 4(42) readwith
Section 12 of Hindu
Adoption and
maintenance Act 1955-compassionate
Appointment-claimed by adopted son-