# State of U.P. & Ors v. Kuldeep Naiyar

- **Citation:** (2021) 8 ILRA 701
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-13
- **Case number:** Special Appeal No. 109 of 2021
- **Bench:** Munishwar Nath Bhandari, A.C.J. Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-kuldeep-naiyar-47294
- **Pages:** 3

## Headnote

A. Service Law - Recruitment - Uttar
Pradesh
Police
Constable
and
Head
Constable Service Rules, 2015: Rule 15(g)
-
The
Rule
gives
authority
to
the
Appointing Authority to ask the successful
candidates
to
appear
for
medical
examination, which is to be conducted in
Police Line of the concerned district or at
the place mentioned by the Appointing
Authority. The aforesaid rule has been ignored
by the learned Single Judge while giving
authority to the Recruitment Board for holding
the medical examination and passing order. The
judgment under challenge is not sustainable as
goes against the Rules. (Para 8)

Special appeal allowed. (E-3)

Present appeal assails the judgment and
order
dated
12.01.2021,
passed
by
learned Single Judge.

## Text

8 All. State of U.P. & Ors. Vs. Kuldeep Naiyar
701

12. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

13. The concerned Court /Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.
----------
(2021)08ILR A701
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, A.C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Special Appeal No. 109 of 2021

State of U.P. & Ors. ...Appellants
Versus
Kuldeep Naiyar ...Respondent

Counsel for the Appellants:
Sri Anand Kumar Ray

Counsel for the Respondent:
Sri Virendra Singh

A. Service Law - Recruitment - Uttar
Pradesh
Police
Constable
and
Head
Constable Service Rules, 2015: Rule 15(g)
-
The
Rule
gives
authority
to
the
Appointing Authority to ask the successful
candidates
to
appear
for
medical
examination, which is to be conducted in
Police Line of the concerned district or at
the place mentioned by the Appointing
Authority. The aforesaid rule has been ignored
by the learned Single Judge while giving
authority to the Recruitment Board for holding
the medical examination and passing order. The
judgment under challenge is not sustainable as
goes against the Rules. (Para 8)

Special appeal allowed. (E-3)

Present appeal assails the judgment and
order
dated
12.01.2021,
passed
by
learned Single Judge.

(Delivered by Hon'ble Munishwar Nath
Bhandari, A.C.J.
&
Hon'ble Piyush Agrawal, J.)

1. Heard Sri Anand Kumar Ray,
learned Additional Chief Standing Counsel
for the appellants and Sri Virendra Singh,
learned counsel for the respondent.

2. By this appeal, a challenge is made
to the judgment dated 12th January, 2021,
whereby the writ petition preferred by the
petitioner/non-appellant was allowed.

3. It is a case where post of Police
Constables were advertised by the U.P.
Police Recruitment and Promotion Board
(for short "Recruitment Board") in the year
2015.
The
petitioner/non-appellant
appeared in the selection and remained
successful
thus,
his
name
was
recommended to the Appointing Authority.
In pursuant to it, the Appointing Authority
directed the petitioner/non-appellant to
appear before the Medical Board where he
was found unfit on account of height.
Petitioner/non-appellant
challenged
the
decision of the Medical Board by a writ
petition. The writ petition was dismissed.
However, in an intra court appeal, an order
was passed on 11th March, 2019 directing
the
respondents
to
hold
physical
examination of the petitioner/non-appellant
again. The Review Medical Board was
constituted by the Appointing Authority
where the petitioner/non-appellant was
702 INDIAN LAW REPORTS ALLAHABAD SERIES
initially directed to appear before the
Medical Board at Lucknow but finding
Medical Board to be constituted at district
level, he was sent to the Medical Board at
Varanasi. In the Review Medical Board, the
petitioner/non-appellant's colour vision was
not found to be in order thus, he was
declared
unfit.
The
petitioner/nonappellant,
however,
approached
the
Recruitment Board to get him medically
examined and pursuant to his request,
Recruitment Board sent the petitioner/nonappellant for medical examination at
Gorakhpur though the Recruitment Board
had no authority to send the petitioner/nonappellant for medical examination. It is for
the reason that after the recruitment and
sending the select list, it becomes functus
officio. The process of physical and
medical examination is to be undertaken by
the Appointing Authority. Since in the
Review Medical Board, the petitioner/nonappellant was declared unfit on account of
colour vision, the appointment could not be
given to him.

4. The learned Single Judge, however,
allowed the writ petition in reference to an
order of the Recruitment Board dated 16th
September, 2019. It is without realising that
the Recruitment Board is authorised to
make selection and on its completion, to
send the list of successful candidates to the
Appointing Authority. Subsequent to the
aforesaid,
physical
and
medical
examination is to be conducted by the
Appointing Authority and in fact the
petitioner/non-appellant
was
medically
examined by the Medical Board constituted
by the Appointing Authority itself. Initially,
he was declared unfit on account of height
and
in
the
Review
Medical
Board
constituted by the Appointing Authority,
the petitioner/non-appellant was declared to
be unfit on account of colour vision. The
Recruitment Board, however, send the
petitioner/non-appellant
for
medical
examination and based on a report only in
regard to height, passed the order on 16th
September, 2019 having no authority for it.

5. The learned Single Judge, however,
relied on the said order without judging the
competence of the Recruitment Board. The
power of the Recruitment Board and the
Appointing Authority was to be recognised.
It has already been clarified that the
Recruitment Board is to conduct the
selection and send the list of successful
candidates to the Appointing Authority.
After receiving the select list of successful
candidates, it is the Appointing Authority to
get the candidate medically examined
through a Medical Board in district for
which selection is conducted. There is
separation of powers in selection and
appointment which has not been touched
by the learned Single Judge.

6.

Learned
counsel
for
the
petitioner/non-appellant has pressed upon
the report of the Medical Board at
Gorakhpur constituted by the Recruitment
Board. It could not have relied on the report
of the Medical Board at Gorakhpur having
been constituted by the Recruitment Board
without authority. The report of Medical
Board constituted by the Appointing
Authority shows petitioner/non-appellant to
be deficient in colour vision and distance.
In pursuant to the said report, a direction
for appointment could not have been given.
The learned Single Judge had wrongly
considered Recruitment Board to be
superior authority for constitution of
Medical Board without realising that
physical examination of the successful
candidates does not fall in the domain of
the Recruitment Board. Thus, the finding of
the learned Single Judge holding that the
8 All. State of U.P. & Ors. Vs. Mahanand Pandey & Anr.
703
SSP Varanasi (the Appointing Authority)
could not have ignored the letter of the
Recruitment Board dated 16th September,
2019 cannot be accepted. The letter
aforesaid was without authority of law as it
has already been clarified that Recruitment
Board has no authority to constitute a
Medical Board thus, no sanctity was
existing to the letter dated 16th September,
2019.

7. The judgment of the learned Single
Judge is even in ignorance of the relevant
Rule and for that, Rule 15 (g) of the Uttar
Pradesh
Police
Constable
and
Head
Constable Service Rules, 2015 is quoted
herein:

"(g) Medical Examination

The candidates whose name are
in the select list sent as per clause (e), will
be
required
to appear
for
Medical
Examination by the Appointing authority.
Medical Examination will be conducted in
the Police Line of the concerned District or
at the place mentioned by the Appointing
authority. Medical Examination will be
conducted
as
per
Appendix-3.
The
candidates found unsuccessful in Medical
Examination shall be declared unfit by the
Appointing authority and such vacancies
shall be carried forward for next selection."

8. The Rule quoted above gives
authority to the Appointing Authority to ask
the successful candidates to appear for
medical
examination.
The
medical
examination is to be conducted in Police
Line of the concerned district or at the
place
mentioned
by
the
Appointing
Authority. It has to be as per Appendix-3.
The Rule aforesaid has been ignored by the
learned Single Judge while giving authority
to the Recruitment Board for holding the
medical examination and passing order.
The judgment under challenge is not
sustainable as goes against the Rules. It is,
accordingly, set aside. The appeal is
allowed with the aforesaid.
----------
(2021)08ILR A703
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, A.C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Special Appeal No. 146 of 2021

State of U.P. & Ors. ...Appellants
Versus
Mahanand Pandey & Anr. ...Respondents

Counsel for the Appellants:
Sri Subhash Rathi

Counsel for the Respondents:
Sri Vinod Kumar Mishra

A. Service Law - Pension and Gratuity
- Civil Service Regulations Relating to
Pension
to
State
Employees:
Regulations 351-AA, 919-A(3) - The
word
"judicial
proceeding"
used
u/Regulation 351-AA would include
every proceeding pending in the Court
whether original or at the appellate
stage.
The
judicial
proceeding
means
proceeding over which Judge presides. A
criminal appeal cannot be taken out from
the definition of "judicial proceeding" and
thereby, if one is acquitted but appeal
thereupon is pending, he/she would be
governed
by
Regulation
351-AA
and
thereby, entitled to the provisional pension.
(Para 15)

In present case, pending criminal appeal
would fall in the definition of "judicial
proceeding" and thereby, Regulation 351AA read with Regulation 919-A(3) would be