# Sudhanshu Aggarwal v. State of U.P. & Ors

- **Citation:** (2024) 12 ILRA 954
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-17
- **Case number:** Special Appeal No. 693 of 2024
- **Bench:** Vivek Kumar Birla, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sudhanshu-aggarwal-v-state-of-u-p-ors-51367
- **Pages:** 11

## Headnote

A. Service/Education Law - Appointment -
U.P. State Universities Act, 1973 - U.P.
Higher Education Service Commission Act,
1980 - Sections 12 & 13 - Uttar Pradesh
Higher Education Services Commission
(Procedure for Selection of Teachers)
Regulations, 1983 - Regulation 5 - Mere
entry in the select list or existence of
vacancies would not give a legal right to a
candidate to be appointed or to seek
entitlement for a mandamus in regard to
the same. (Para 17, 24)

A candidate included in the merit list has
no indefeasible right to be appointed even
if vacancies exist. (Para 18, 24)

A selected candidate has a right to be
considered for appointment but he has no
such right to be allocated to a cadre/post
of his choice. (Para 19, 20, 26)

In the present case, the petitioner was placed in
the waiting list of the selected candidates and
has been recommended for appointment on a
post at Satish Chandra College, Ballia which was
mentioned at serial no. 28 of the preferential list
of 30 colleges submitted by the petitioner in his
application. There being no dispute that two
colleges namely, Hindu College, Moradabad and
K.G.K.P.G. College, Moradabad where the
petitioner has sought to raise a claim for being
appointed
were
not
mentioned
in
the
preferential list submitted by him, no mistake
can be said to have been committed by the
concerned authority in giving him appointment
to a college specified at serial no. 28 of the
preferential list submitted by the petitioner.
(Para 27)

The alternative relief sought by the petitioner at
the stage of the present special appeal, for
being granted placement at any of the colleges
which had been specified at serial nos. 1 to 27
of the preferential list, cannot be granted as no
vacancy exist at any of the said institutions.
(Para 28)
As per the finding given by the learned Single
Judge in the judgment under appeal, nothing has
been placed on record to indicate that any person
standing lower in the merit has been given
appointment in any of the colleges mentioned in
the preferential list of the petitioner above serial
no. 28 where the petitioner has been offered
appointment. The conclusion drawn thereafter that
no illegality had been committed in offering
appointment to the petitioner at a college specified
at serial no. 28 of the preferential list submitted by
the petitioner himself, therefore, cannot be faulted
with. (Para 29)

Appellant has not been able to point out any
material error or illegality in the order passed by
the learned Single Judge. (Para 30)

Special appeal dismissed. (E-4)

Precedent followed:

## Text

954 INDIAN LAW REPORTS ALLAHABAD SERIES
or demolition of the premises and for which
naturally the tenant will have to vacate because
no reconstruction, no rebuilding or alteration or
demolition can be carried out with the tenant
sitting inside. In so far as the first proviso is
concerned, it gives a statutory right to the tenant
to re-enter the tenancy to occupy the premises
provided the landlord and tenant have mutually
agreed for the same. This mutual agreement is
also at the discretion of the landlord because if
the landlord does not want any mutual
agreement and wants not to let out the building
after reconstruction or remodeling or alteration,
then tenant cannot compel him. This further
comes to be affirmed from the second proviso
which says that in the absence of submission of
such mutual tenancy agreement with the rent
authority, tenant cannot reoccupy the premises.
Further, clause (i) and (ii) of the second proviso
make it absolutely clear that this statutory right
of the tenant is not absolute.

17. Moving to clause (m), I find that
this clause is more applicable to the facts of the
case because it provides for landlord to get the
building vacated and to use it by raising new
construction after demolition. Looking to the
averments made in eviction application, in my
considered view the application falls within
clause 21(2)(m) and therefore, the argument
advanced by Mr.Jain holds merit. The clause
(m) does not get qualified from any such
proviso as contained under Section 21(2)(e) of
the Act.

18. Coming to the last argument
regarding non compliance of Rule 7 of the
Rules suffice it to say that it relate to procedural
part of the Act and for any procedural infirmity,
if application was not entertainable, then
objection ought to have been taken at very
initial stage. Petitioner having not taken any
objection at the stage of Prescribed Authority
would be taken to have submitted to the
proceedings and therefore, cannot be permitted
to raise objection at the stage of appeal. Besides
this, I also find that the purpose for certain
details and documents that are required for an
eviction application to bear, is only for the
purposes of facilitating copies to the tenant/
respondent and to provide him full knowledge
for which the application has been filed.

19. Once the tenant files his written
objection to the eviction application, it will be
taken that he is fully aware of the facts and
therefore, it was his opportunity now to allege
that the facts were wrong or that the application
was misconceived.

20. In my considered view, merely
for any procedural flaw an application has
been entertained, if the proceedings did
not suffer from any vice of inherent lack
of jurisdiction of the court, the mere
entertainability of such application and
thereafter, the decision thereupon would
not render the judgment bad much less a
nullity. No other points have been argued
before the court on behalf of the
petitioners.

21. In view of the above, all the four
petitions are held to be devoid of merit and are
accordingly dismissed.
----------
(2024) 12 ILRA 954
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 693 of 2024

Sudhanshu Aggarwal ...Appellant
Versus
State of U.P. & Ors. ...Respondents
12 All. Sudhanshu Aggarwal Vs. State of U.P. & Ors.
955
Counsel for the Appellant:
Usha Kiran

Counsel for the Respondents:
C.S.C., Gagan Mehta

A. Service/Education Law - Appointment -
U.P. State Universities Act, 1973 - U.P.
Higher Education Service Commission Act,
1980 - Sections 12 & 13 - Uttar Pradesh
Higher Education Services Commission
(Procedure for Selection of Teachers)
Regulations, 1983 - Regulation 5 - Mere
entry in the select list or existence of
vacancies would not give a legal right to a
candidate to be appointed or to seek
entitlement for a mandamus in regard to
the same. (Para 17, 24)

A candidate included in the merit list has
no indefeasible right to be appointed even
if vacancies exist. (Para 18, 24)

A selected candidate has a right to be
considered for appointment but he has no
such right to be allocated to a cadre/post
of his choice. (Para 19, 20, 26)

In the present case, the petitioner was placed in
the waiting list of the selected candidates and
has been recommended for appointment on a
post at Satish Chandra College, Ballia which was
mentioned at serial no. 28 of the preferential list
of 30 colleges submitted by the petitioner in his
application. There being no dispute that two
colleges namely, Hindu College, Moradabad and
K.G.K.P.G. College, Moradabad where the
petitioner has sought to raise a claim for being
appointed
were
not
mentioned
in
the
preferential list submitted by him, no mistake
can be said to have been committed by the
concerned authority in giving him appointment
to a college specified at serial no. 28 of the
preferential list submitted by the petitioner.
(Para 27)

The alternative relief sought by the petitioner at
the stage of the present special appeal, for
being granted placement at any of the colleges
which had been specified at serial nos. 1 to 27
of the preferential list, cannot be granted as no
vacancy exist at any of the said institutions.
(Para 28)
As per the finding given by the learned Single
Judge in the judgment under appeal, nothing has
been placed on record to indicate that any person
standing lower in the merit has been given
appointment in any of the colleges mentioned in
the preferential list of the petitioner above serial
no. 28 where the petitioner has been offered
appointment. The conclusion drawn thereafter that
no illegality had been committed in offering
appointment to the petitioner at a college specified
at serial no. 28 of the preferential list submitted by
the petitioner himself, therefore, cannot be faulted
with. (Para 29)

Appellant has not been able to point out any
material error or illegality in the order passed by
the learned Single Judge. (Para 30)

Special appeal dismissed. (E-4)

Precedent followed:

1. St.of Har. Vs Subash Chander Marwaha,
(1974) 3 SCC 220 (Para 17)

2. Shankarsan Dash Vs U.O.I., (1991) 3 SCC 47
(Para 18)

3. U.O.I. & ors. Vs Rajiv Yadav, IAS & ors.,
(1994) 6 SCC 38 (Para 19)

4. U.O.I. & anr. Vs A. Shainamol, IAS & anr.,
(2021) 20 SCC 267 (Para 20)

5. Tej Prakash Pathak & ors. Vs Raj.

6. High Court & ors., (2025) 2 SCC 1 (Para 21)

Present special appeal challenges the
judgment and order dated 23.07.2024,
passed by a learned Single Judge of the
Court in Writ - A No. - 8718 of 2024
(Sudhanshu Aggarwal Vs. State of U.P.
and 2 Others).

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Ms. Usha Kiran, learned
counsel for the appellant-petitioner, Sri
Manoj Kumar Mishra, learned Standing
956 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel
appearing
for
the
Staterespondent(s) and Sri Gagan Mehta,
learned counsel for the respondent No. 2,
the Uttar Pradesh Higher Education Service
Commission.

2. The present intra-court appeal is
directed against the judgment and order
dated 23.07.2024 passed by a learned
Single Judge of the Court in Writ - A No. -
8718 of 2024 (Sudhanshu Aggarwal Vs.
State of U.P. and 2 Others).

3. The facts of the case as
emerging from the records are that the writ
petition had been filed seeking a direction
to the opposite parties to give him a choice
for appointment as Assistant Professor,
Mathematics at Hindu College Moradabad
or K.G.K.P.G. College Moradabad instead
of Satish Chandra College, Ballia and
permit him to join on any of the aforesaid
two posts.

4. The selection process, pursuant
to an advertisement, bearing Advertisement
No. 50 of 2021, was initiated for making
selections for appointment to the posts of
Assistant Professors in non-government
aided colleges, which included 96 posts in
the subject of Mathematics. The petitioner,
upon declaration of results, was placed at
Serial No. 8 of the waiting list, however
various
writ
petitions
were
filed
challenging the selection process. One of
such writ petitions, being Writ - A No.
13104 of 2023 [Sanjay Prakash Dubey Vs.
State of U.P. and 3 Others] was decided by
means of a judgment and order dated
06.10.2023, remanding the matter to the
Director of Higher Education and providing
that the petitioner therein may prefer a
comprehensive representation before him.
In compliance of the order passed by this
Court, the waiting list was corrected and
the petitioner was placed at Serial No.28.
The petitioner was directed to submit his
preference of colleges for his appointment.
The petitioner submitted his preferential list
of 30 colleges, in which Satish Chandra
College, Ballia was mentioned at Serial
No.28. The Director Education (Higher
Education) wrote a letter dated 15.03.2024
to
the
Secretary/Manager/Authorized
Controller, Satish Chandra College, Ballia,
recommending the name of the petitioner,
for being appointed on a post of Assistant
Professor in that college.

5. Insofar as the claim of the
petitioner for a choice of appointment as
Assistant Professor, Mathematics at Hindu
College Moradabad or K.G.K.P.G. College
Moradabad instead of Satish Chandra
College, Ballia is concerned, learned Single
Judge has taken note of paragraphs 9 and
10 of the supplementary affidavit of the
petitioner wherein a claim based on equity
was raised. However, since none of the
aforesaid two colleges had been mentioned
in the preferential list submitted by the
petitioner, it was held that no illegality had
been committed by the authorities in giving
appointment to the petitioner in a college
specified at serial no.28 of the preferential
list submitted by the petitioner.

6. Learned Single Judge has also
taken note of the fact that nothing had been
placed on record to indicate that any person
standing lower in the merit has been given
appointment in any of the colleges above
serial no.28 in the preferential list of the
petitioner in which, he had been offered
appointment.

7. Upon the appeal being taken up,
on 29.8.2024, before a coordinate Bench of
this Court, it was sought to be argued by
learned counsel for the appellant-petitioner
12 All. Sudhanshu Aggarwal Vs. State of U.P. & Ors.
957
that one Km Arti, who had been placed at
serial no.31 of the revised select list, had
been granted placement at an institution,
which
had
not
been
notified
for
recruitment. It was also urged that in case,
there is any vacancy, at this stage, the
appellant-petitioner would seek the relief
for being granted placement at any of the
institutions, which had been specified at
serial nos.1 to 27 of the preferential list
submitted by the petitioner.

8. Taking note of the aforesaid
submissions,
counsel
for
the
Staterespondents
was
directed
to
obtain
instructions.

9. In response to the aforesaid,
learned counsel for the State-respondent
has placed reliance upon paragraphs 9 and
10 of the instructions dated 05.10.2024,
stated to have been received from the
Director of Education (Higher Education),
UP, which read as follows:

"9. चयभनत अभ्यथी आरती जो भक प्रथम
चयन सूची में रम सं0 28 पर भस्क्थत थी, को
आनलाइन आसन व्यिस्क्था के तित उभित नारायण
पी०जी० कालेज पडरौना, कुिीनगर आिंभटत भकया
गया, जो भिज्ञापन 50 में भिज्ञाभपत था। याची का यि
कथन की आरती के आसन-व्यिस्क्था अभिज्ञाभपत पि
पर की गई िै, पूणात: असत्य िै। आयोग द्वारा प्रेभषत
िूसरी चयन सूची में आरती रम सं0 31 पर भस्क्थत िै।
मा0 उच्च न्द्यायालय इलािाबाि द्वारा स्क्पेिल अपील
भडफेभक्टि संख्या-127/2023 में पाररत आिेि
भिनांक 12.04.2023 के अनुपालन में प्रथम चयन
सूची के अभ्यभथायों (आरती सभित) की आसनव्यिस्क्था भनरस्क्त निीं की जा सकीं भजससे उनको
आिंभटत मिाभिद्यालय पूिाित िै।
10. इस कायाालय में गभणत भिषय के
पररणाम सूची के रम संख्या 1 से 27 तक के चयभनत
अभ्यभथायों द्वारा कायािार ग्रिण करने के उपरान्द्त पि
ररक्त की सूचना िून्द्य िै।"
10. Based on the aforesaid written
instructions,
counsel
for
the
Staterespondents has submitted that the other
candidate, namely, Arti, who was at serial
number 28 of the first select list, had been
granted placement at Udit Narayan PG
College, Padrauna, Kushinagar through an
on-line procedure which had been adopted.
It is stated that the aforesaid institution was
duly notified in terms of Advertisement
No.50 pursuant to which, these selections
had been held, and therefore, the contention
that the said candidate had been granted
placement at an institution which had not
been advertised, is absolutely incorrect.

11. In regard to the claim, which is
now being sought to be made by the
petitioner for being granted placement at
any of the institution specified at serial
number 1 to 27 of the preferential list
submitted by him, counsel for the Staterespondents,
by
referring
to
the
instructions, has submitted that no vacancy
exists at any of the said institutions.

12. Heard learned counsel for the
parties and perused the record.

13. The procedure of appointment
of teachers in the colleges which are
affiliated / associated to the universities
governed by U.P. State Universities Act,
19731 is to be as per the terms prescribed
under Section 12 of the U.P. Higher
Education Service Commission Act, 19802.
The recommendation of the Commission is
to be made as per Section 13 of the said
Act. For ease of reference, the aforesaid
provisions are being extracted below:-

"12.
Procedure
for
appointment
of
teachers.-(1)
Every appointment as a teacher of
any college shall be made by the
958 INDIAN LAW REPORTS ALLAHABAD SERIES
management in accordance with the
provisions of this Act and every
appointment made in contravention
thereof shall be void.
Provided that a permanent
teacher
of
an
affiliated
or
associated college, who has been
appointed in accordance with the
provisions of this act and has
completed five years service as
such and who wishes to be
transferred to any other college,
may be transferred in the manner
prescribed by rules from one
college to another, only when the
respective
management
of
the
colleges
concerned
give
their
consent in writing.
(1-a). Notwithstanding any
decree or order of a Court, a
teacher who has been appointed as
such by transfer from one college
to another in pursuance of the
Government Orders No. 429 Siksha
Mantri/Sattar-6-98-15-95,
dated
17.8.1998 or No. 393/Sattar-1-19915(6)-99, dated 28.10.1999 shall be
deemed to have been validly
appointed as if the provisions of the
principal Act as amended by the
Uttar Pradesh Higher Education
Services
Commission
(Second
Amendment) Act, 2004 were in
force at all material times.
(2) The management shall
intimate the existing vacancies and
the vacancies likely to be caused
during the course of the ensuing
academic year, to the Director at
such time and in such manner, as
may be prescribed.
Explanation-The
expression "academic year" means
the
period
of
12
months
commencing on July 1.
(3)
The
Director
shall
notify to the Commission at such
time and in such manner as may be
prescribed
a
subject
wise
consolidated
list
of
vacancies
intimated to him from all colleges.
(4) The manner of selection
of persons for appointment to the
posts of teachers of a college shall
be such, as may be determined by
regulations :
Provided
that
the
Commission shall with a view to
inviting talented persons give wide
publicity in the State to the
vacancies notified to it under subsection (3) :
Provided further that the
candidates shall be required to
indicate their order of preference
for the various colleges, vacancies
wherein have been advertised.

13.

Recommendation
of
Commission.-(1) The Commission shall,
as soon as possible, after the notification of
vacancies to it under sub-section (3) of
Section 12, hold written examination and
interview of the candidates and send to the
Director a list recommending such number
of names of candidates found most suitable
in each subject as may be, so for as
practicable, twenty-five per cent more than
the number of vacancies in that subject.
Such names shall be arranged in order of
merit shown in the interview, or in the
examination
and
interview
if
an
examination is held.

(2) The list sent by the
Commission shall be valid till the
receipt of a new list from the
Commission.
(3)
The
Director
shall
having due regard in the prescribed
12 All. Sudhanshu Aggarwal Vs. State of U.P. & Ors.
959
manner, to the order of preference
if any indicated by the candidates
under the second proviso to subsection (4) of Section 12, intimate
to the management the name of a
candidate from the list referred to
in
sub-section
(1)
for
being
appointed in the vacancy intimated
under sub-section (2) of Section 12.
(4) Where a vacancy occurs
due
to
death,
resignation
or
otherwise during the period of
validity of the list referred to in
sub-section (2), and such vacancy
has not been notified to the
Commission under sub-section (3)
of Section 12, the Director may
intimate to the management the
name of a candidate from such list
for appointment in such vacancy.
(5)
Notwithstanding
anything
in
the
preceding
provisions, whereto abolition of
any post of teacher in any college,
services of the person substantively
appointed
to
such
post
is
terminated, the State Government
may make suitable order for his
appointment in a suitable vacancy,
whether notified under sub-section
(3) of Section 12 or not, in any
other college, and thereupon the
Director shall intimate to the
management accordingly.
(6) The Director shall send
a copy of the intimation made
under sub-section (3) or sub-section
(4) or sub-section (5) to the
candidate concerned."
(emphasis supplied)

14. The procedure for selection of
teachers is to be as per the terms of the
Uttar
Pradesh
Higher
Education
Services Commission (Procedure for
Selection
of
Teachers)
Regulations,
19833. The manner of notification of
vacancies, submission of applications, and
indication of preference is to be as per
Regulation 5 of the aforesaid Regulations,
which is being reproduced below:

"5.
Notification
of
vacancies,
submission
of
application and indication of
preference.-The
Commission
shall advertise the vacancies in
three issues of at least three
newspapers. The Commission shall
send a copy of the advertisement to
the Director and may, if it considers
proper, also send a copy thereto to
the District Inspector of Schools
and
to
the
Colleges.
Such
advertisement shall, inter
alia,
indicate
the
total
number
of
vacancies as also the number of
vacancies in women's colleges and
other colleges separately, the names
of the college(s) and where they are
situate
and
shall
require
the
candidates to apply in prescribed
form and to give if he so desires,
the choice of not more than five
colleges in order of preference.
Where a candidate wishes to be
considered for a particular college
or colleges only, and for no other,
he shall mention the fact in his
application.
Provided that where the
number of colleges is large or for
any other reason the Commission
considers it inexpedient, it may,
instead of mentioning the names
and particulars of the colleges in
the advertisement, send the copy
thereof to the colleges and to the
District Inspector of Schools and
mention in the advertisement that
960 INDIAN LAW REPORTS ALLAHABAD SERIES
particulars of the colleges may be
seen
in
the
office
of
the
Commission, the office of District
Inspector of Schools or in the
Colleges:
Provided
also
that
the
Commission shall not be bound by
the choice given by the candidate
and
may,
in
its
discretion,
recommend him for appointment in
a college other than indicated by
him."
(emphasis supplied)

15. The aforestated statutory
provisions and the Regulations framed
thereunder indicate that the process for
appointment of teachers to the Colleges,
which are affiliated/associated to the
Universities governed by the Act, 1973, is
initiated by the Management intimating
the existing vacancies and the vacancies
likely to be caused during the course of
the ensuing academic year, to the
Director of Education (Higher Education)
in the prescribed manner. The Director
shall, then notify to the U P Higher
Education Services Commission at such
time and in such manner, as may be
prescribed, a subject wise consolidated
list of vacancies intimated to him from all
colleges. The manner of notification of
vacancies, submission of applications,
and indication of preference is to be as
per the terms of Regulation 5 of the
Regulations, 1983, which provides that
the Commission shall advertise the
vacancies in the newspapers and shall
send copies thereof to the Director and
also to the District Inspector of Schools
and to the Colleges, if it considers proper.
The
advertisement
shall,
inter
alia,
indicate the total number of vacancies as
also the number of vacancies in women's
colleges and other colleges separately, the
names of the colleges and where they
situate and shall require the candidates to
apply in prescribed form and to give, if
he so desires, the choice of colleges in
order of preference. Where a candidate
wishes to be considered for a particular
college or colleges only, and for no other,
he
shall
mention
the
fact
in
his
application. However, as per the second
proviso of the aforesaid Regulation 5, the
Commission shall not be bound by the
choice given by the candidate and may, in
its
discretion,
recommend
him
for
appointment in a college other than
indicated by him.

16. Section 13 of the Act, 1980
provides that the Commission shall, after
notification of vacancies to it, hold written
examination
and
interview
of
the
candidates and send to the Director a list
recommending candidates found suitable in
each subject, the names being arranged in
order of merit. The Director, as per subsection (3) of Section 13 of the Act, 1980,
having due regard to the order of
preference, if any indicated by the
candidates, intimate the Management the
name of the candidate from the select list,
for being appointed in the vacancy
intimated by the institution.

17. The question as to whether
entry of the name of a candidate in the
select list or the existence of vacancies
would give him a right to be appointed and
whether a mandamus can be sought for
issuance of such direction under Article
226 of the Constitution, was examined in
the case of State of Haryana vs. Subash
Chander Marwaha4, and it was held that
mere entry in the select list or existence of
vacancies would not give a legal right to a
candidate to be appointed or to seek
entitlement for a mandamus in regard to the
12 All. Sudhanshu Aggarwal Vs. State of U.P. & Ors.
961
same. The relevant observations made in
the judgment are as follows:-

"7. In the present case it
appears that about 40 candidates
had passed the examination with
the minimum score of 45%. Their
names were published in the
Government Gazette as required by
Rule 10(1) already referred to. It is
not disputed that the mere entry in
this list of the name of candidate
does not give him the right to be
appointed The advertisement that
there are 15 vacancies to be filled
does not also give him a right to be
appointed. It may happen that the
Government for financial or other
administrative reasons may not fill
up any vacancies. In such a case the
candidates, even the first in the list,
will not have a right to be
appointed. The list is merely to
help the State Government in
making the appointments showing
which
candidates
have
the
minimum qualifications under the
Rules. The stage for selection for
appointment comes thereafter, and
it is not disputed that under the
Constitution
it
is
the
State
Government alone which can make
the appointments.
... ... ...
10. One fails to see how the
existence of vacancies gives a legal
right to a candidate to be selected
for appointment. The examination
is for the purpose of showing that a
particular candidate is eligible for
conside- ration. The selection for
appointment comes later. It is open
then to the Government to decide
how many appointments shall be
made. The mere fact that a
candidate's name appears in the list
will not entitle him to a mandamus
that he be appointed. Indeed, if the
State Government while making
the selection for appointment had
departed from the ranking given in
the list, there would have been a
legitimate grievance on the ground
that the State Government had
departed from the rules in this
respect."

18. In the Constitution Bench
decision in Shankarsan Dash Vs. Union
of India5, it was authoritatively laid down
that a candidate included in the merit list
has no indefeasible right to be appointed
even if vacancies exist. It was stated as
under:-

"7. It is not correct to say
that if a number of vacancies are
notified
for
appointment
and
adequate number of candidates are
found fit, the successful candidates
acquire an indefeasible right to be
appointed
which
cannot
be
legitimately denied. Ordinarily the
notification merely amounts to an
invitation to qualified candidates to
apply for recruitment and on their
selection they do not acquire any
right to the post. Unless the
relevant
recruitment
rules
so
indicate, the State is under no legal
duty to fill up all or any of the
vacancies. However, it does not
mean that the State has the licence
of acting in an arbitrary manner.
The decision not to fill up the
vacancies has to be taken bona fide
for appropriate reasons. And if the
vacancies or any of them are filled
up, the State is bound to respect the
comparative
merit
of
the
962 INDIAN LAW REPORTS ALLAHABAD SERIES
candidates, as reflected at the
recruitment
test,
and
no
discrimination can be permitted.
This correct position has been
consistently followed by this Court,
and we do not find any discordant
note in the decisions in State of
Haryana vs. Subhash Chander
Marwaha and others, [1974] 1 SCR
165; Miss Neelima Shangla vs.
State of Haryana and others, [1986]
4 SCC 268 and Jitendra Kumar and
Others v. State of Punjab and
Others, [1985] 1 SCR 899.

19. In a somewhat similar set of
facts,
where
candidates
selected
for
appointment to the Indian Administrative
Service, sought to assert a right to be
allocated to a cadre of choice or to their
home State, the Supreme Court in the case
of Union of India and others Vs. Rajiv
Yadav, IAS and others6, held that a
selected candidate has a right to be
considered for appointment but he has no
such right to be allocated to a cadre of his
choice. It was observed as follows:-

"6. We may examine the
question from another angle. A
selected candidate has a right to be
considered for appointment to the
IAS but he has no such right to be
allocated to a cadre of his choice or
to his home-State. Allotment of
cadre is an incidence of service. A
member of an All India Service
bears liability to serve in any part
of
India.
The
principles
of
allocation as contained in Clause 2
of the letter dated May 31, 1985,
wherein preference is given to a
scheduled
caste/scheduled
tribe
candidate for allocation to his home
State,
do
not
provide
for
reservation of appointments or
posts and as such the question of
testing the said principles on the
anvil of Article 16(4) of the
Constitution of India does not arise.
It is common knowledge that the
scheduled
caste/scheduled
tribe
candidates
are normally much
below in the merit list and as such
are not in a position to compete
with
the
general
category
candidates. The "Roster System"
ensures equitable treatment to both
the general candidates and the
reserved categories. In compliance
with the statutory requirement and
in terms of Article 16(4) of the
Constitution
of
India
221/2%
reserved category candidates are
recruited to the IAS. Having done
so both the categories are to be
justly
distributed
amongst
the
States, But for the "Roster System"
it
would
be
difficult
rather
impossible
for
the
scheduled
castes/scheduled tribes candidates
to be allocated to their home States.
The principles of cadre allocation,
thus, ensure equitable distribution
of reserved candidates amongst all
the cadres."

20. A similar view has been taken
in Union of India and another Vs. A.
Shainamol, IAS and another7, wherein it
has been reiterated that allocation of a
cadre is not a matter of right and that a
selected candidate has a right to be
considered for appointment but has no right
to be allocated a cadre of his choice or to
his home State.

21. The law laid down in the
decision in Shankarsan Dash (supra) and
also in the earlier decision in Subash
12 All. Sudhanshu Aggarwal Vs. State of U.P. & Ors.
963
Chander Marwaha (supra), that mere
placement in the select list gives no
indefeasible right to appointment, has been
affirmed in a recent Constitution Bench
decision in Tej Prakash Pathak & Others
vs, Rajasthan High Court and others8.

22. The Regulations, 1983 provide
for the procedure for selection of teachers
in question in the present case. Regulation
5 thereof, requires the candidates to give a
choice of colleges which have been
advertised, in order of preference, in their
applications. The second proviso to the
aforesaid regulation, however makes it
clear that the Commission would not be
bound by the choice given by the candidate
and may, in its discretion, recommend him
for appointment in a college other than
indicated by him.

23. The option to the candidates to
indicate their order of preference in the
colleges, wherein vacancies have been
advertised is also specified in the second
proviso to sub-section (4) of Section 12 of
the Act, 1980 and as per sub-section (3) of
Section 13 of the said Act, upon receiving
the recommendation of the Commission,
the Director shall, having due regard in the
prescribed
manner
to
the
order
of
preference, if any indicated by the
candidates, intimate to the Management the
names of candidates from the select list for
being appointed against the vacancies
which have been intimated.

24. It is legally settled that the
mere inclusion of the name of a candidate
in the select list or the existence in the
vacancies would not give a right to be
appointed and also no mandamus can be
issued in exercise of powers under Article
226 of the Constitution in regard to the
same. It is also a settled position in law that
successful candidates in a recruitment
process do not require a indefeasible right
to appointment.

25. The statutory scheme which
governs the procedure for appointment of
teachers, which is in question before us,
gives an option to candidates to indicate
choice of colleges in order of preference in
their
applications;
however,
the
Commission
which
is
to
make
recommendations
consequent
to
recruitment process is not to be bound by
the choice given by candidates, and may, in
its discretion make a recommendation for
appointment in the college other than
indicated by him. It is, therefore, clear that
the option given to a candidate with regard
to
the
colleges
wherein
he
seeks
appointment by his choice, would not in
any
manner
be
binding
upon
the
Commission
which
is
to
make
recommendation for appointment on the
basis of the selection process .

26. It may therefore, be stated as a
proposition of law that a candidate who has
been selected in a recruitment process and
whose name finds mention in the select list
cannot claim any indefeasible or vested
right to be allocated a post of his choice.

27. In the facts of the present case,
the petitioner was placed in the waiting list
of the selected candidates and has been
recommended for appointment on a post at
Satish Chandra College, Ballia which was
mentioned at serial no. 28 of the
preferential list of 30 colleges submitted by
the petitioner in his application. There
being no dispute that two colleges namely,
Hindu College, Moradabad and K.G.K.P.G.
College, Moradabad where the petitioner
has sought to raise a claim for being
appointed were not mentioned in the
964 INDIAN LAW REPORTS ALLAHABAD SERIES
preferential list submitted by him, no
mistake can be said to have been
committed by the concerned authority in
giving him appointment to a college
specified at serial no. 28 of the preferential
list submitted by the petitioner.

28. As regards the alternative relief
which was sought by the petitioner at the
stage of the present special appeal, for
being granted placement at any of the
colleges which had been specified at serial
nos. 1 to 27 of the preferential list, in view
of the factual position borne out from the
instructions placed by the learned counsel
for the State-respondents that no vacancy
exist at any of the said institutions, no
direction can be issued in favour of the
petitioner in this respect also.

29. We may also take note of the
finding given by the learned Single Judge
in the judgment under appeal that nothing
has been placed on record to indicate that
any person standing lower in the merit has
been given appointment in any of the
colleges mentioned in the preferential list
of the petitioner above serial no. 28 where
the
petitioner
has
been
offered
appointment.
The
conclusion
drawn
thereafter that no illegality had been
committed in offering appointment to the
petitioner at a college specified at serial no.
28 of the preferential list submitted by the
petitioner
himself,
in
our
opinion,
therefore, cannot be faulted with.

30. Learned counsel for the
appellant has not been able to point out any
material error or illegality in the order
passed by the learned Single Judge, which
may persuade us to take a different view in
the matter.

31. The appeal lacks merit and is,
accordingly, dismissed.
----------
(2024) 12 ILRA 964
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 1076 of 2024

Shivansh Singh ...Appellant
Versus
Union of India & Ors. ...Respondents

Counsel for the Appellant:
Amal Darsingh

Counsel for the Respondents:
A.S.G.I, Prem Narayan Rai

A. Service Law - Recruitment - Declaring
medically unfit - The scope of interference
in matters relating to assessment of
fitness by a Medical Board constituted
under the statutory rules in exercise of
powers under writ jurisdiction, would be
extremely limited. Matters relating to the
medical evaluation of candidates in a
recruitment
process
involve
expert
determination
and
the
Court
should
exercise
caution
in
supplanting
the
process adopted by the recruiting agency
and substituting it by a Court mandated
further medical evaluation.

Any such exercise in acceding to requests
of candidates who are not found to be
medically fit for reassessment on the basis
of procedures other than those envisaged
by
the
recruiting
agency
under the
relevant
rules
would
result
in
the
recruitment process being derailed, which
would ordinarily be not permissible. (Para
11, 12)