# Sushil Kumar & Ors v. Legislative Council U.P. & Ors

- **Citation:** (2023) 4 ILRA 1004
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-12
- **Case number:** Writ A No. 36 of 2021
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-ors-v-legislative-council-u-p-ors-49901
- **Pages:** 9

## Headnote

C.S.C., Akansha Dubey, Ashok Shukla,
Gaurav Mehrotra, Lalit Shukla, Manoj
Kumar Chaursiya

A.
Service
Law
-
Recruitment
-
Selection Process - U.P. Legislative
Council Secretariat (Recruitment and
Condition of Service) Rules, 1976 -
Rules, 21, 22 & 23 of Rule-6 (i-D); Uttar
Pradesh Direct Recruitment to Junior
Level
Posts
(Discontinuation
of
Interview)
Rules,
2017;
Legislative
Council
Promulgated
(Fourth
Amendment) Rules, 2019.
4 All. Sushil Kumar & Ors. Vs. Legislative Council & Ors.
1005
The law is well settled that the Court
should avoid fishing and roving enquiry in
the matter on the basis of which a person
can set-out his case. Allegations should
not be vague and general and particulars
of
corrupt
practice
must
be
stated
specifically. In an appropriate case, if the
material is necessary, the Court can order for
production of relevant documents, but before
that, it would be the duty of the party, asking
production of documents, to make-out a case
that it would be necessary that certain
documents are to be produced. (Para 23)

B. Scope of Judicial Review - Appointments
for a post in a public body must be in a fair and
reasonable term. Fairness and reasonableness
must be ensured in entire process of selection.
The
decision
of
recruiting
body
is
amenable to judicial review, subject to
settled principle that it should take the
decision in accordance with law, and best
suited to sanctity and integrity of the
selection
process.
The
selection
process/exercise can stand vitiated itself
where the irregularities in the process
have taken place at systematic level.
(Para 24)

If the systematic irregularities or cross-over into
the domain of fraud as a result of which the
credibility and legitimacy of the process gets
squarely affected then the entire selection
requires to be quashed. However, if some of the
participants in the selection process, who
appeared at the examination or selection,
themselves are guilty of irregularities, and there
is possibility to segregate such persons, who are
guilty of wrong-doing from others, then the
entire selection is not to be cancelled. Such
persons, who had indulged in wrong-doing, their
cases should be excluded from the selection
process. (Para 24)

C. Recruitment to public services must
command public confidence. If there is a
systematic failure to ensure the fairness,
impartiality
and
sanctity
of
the
examination then the examination is to be
cancelled. Persons, who are recruited, are
intended to perform public functions associated
with the functioning of the Government. Where
the entire process is found to be flawed, its
cancellation may undoubtedly cause hardship to
a few, who may not be specifically found to be
involved in wrong-doing, however, to maintain
public confidence in the selection process, to
ensure its integrity, sanctity and credibility in
the recruitment/selection process, in such a
situation the entire selection process has to be
cancelled. The petitioners have not been able to
point
out
such
a
systematic
failure
or
irregularities in the selection process. (Para 25)

D. Recruitment for a public post must be
in free and reasonable terms. A fair and
reasonable process of selection to posts,
subject to the norm of equality of
opportunity is mandate of Articles 14
and 16 of the Constitution of India. To
maintain
the
public
confidence
in
the
recruitment
process
in
the
Legislative
Assembly and Legislative Council in respect of
Class-III posts, the recruitment should be in
the
hands
of
the
specialized
statutory
recruitment body, and not in the hands of a
selection committee or a private agency.
Therefore, it is directed that in future all
Class-III posts in Assembly and Council are to
be filled up by the selection made by the UP
Subordinate Services Selection Commission.
In this respect, necessary amendment in the
recruitment rules are to be carried out within
a period of three months from today. (Para
26, 27)

Writ petition dismissed, so far as the
praye

## Text

1004 INDIAN LAW REPORTS ALLAHABAD SERIES
emanated from the active participation of
the
police
and
in
particular
the
investigating officer in collusion with the
Village Pradhan of the village-Pati Ram-
(P.W.-8). There is no denying fact that on
account of supporting candidature of one
Dharmendra
Gangwar,
who
contested
village pradhan election against the sitting
Village Pradhan, Pati Ram was supported
by the accused, therefore, Pati Ram had got
a cause against the accused and the
testimony of P.W.-1 itself is indicative of
fact that the F.I.R. was dictated by Daroga
Ji to Pati Ram at the police station that by
itself is sufficient for creating lot of
material
loopholes
and
dent
in
the
prosecution story, which for the aforesaid
obvious reasons would create strong case
of benefit of doubt in favour of accused.

45. Discussion made by us on all
relevant aspects and in particular fact of
writing of the first information report,
timing of preparation of the inquest report
and the factum of point of false implication
of the accused have not been properly
appreciated and appraised by the lower
court vis-a-vis the testimony on record and
the attendant facts and circumstances of
this case. The material available on record
tilts in favour of accused and advantage of
the same should go to him.

46. For all the reasons stated above,
the appellant is entitled to the benefit of
doubt, accordingly he is entitled to
acquittal.

47. Consequently, the judgement and
order of conviction dated 20.08.2013,
passed by the Additional Sessions Judge,
Court No. 10, Bareilly, in Session Trial No.
1143 of 2012 (State of U.P. Vs. Raju),
arising out of Case Crime No.1092 of 2012,
under Sections - 302, 201 I.P.C., Police
Station - Baheri, District - Bareilly, is
hereby set aside.

48. The appeal is allowed.

49. In this case, the appellant is
languishing in jail for over 10 years, if he is
not wanted in connection with any other
case he may be released forthwith.

50. Let a copy of this judgment/order
be certified to the court concerned for
necessary informant and follow up action.
----------
(2023) 4 ILRA 1004
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.04.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ A No. 36 of 2021

Sushil Kumar & Ors. ...Petitioners
Versus
Legislative Council U.P. & Ors.
 ...Respondents

Counsel for the Petitioners:
Shobhit Mohan Shukla

Counsel for the Respondents:
C.S.C., Akansha Dubey, Ashok Shukla,
Gaurav Mehrotra, Lalit Shukla, Manoj
Kumar Chaursiya

A.
Service
Law
-
Recruitment
-
Selection Process - U.P. Legislative
Council Secretariat (Recruitment and
Condition of Service) Rules, 1976 -
Rules, 21, 22 & 23 of Rule-6 (i-D); Uttar
Pradesh Direct Recruitment to Junior
Level
Posts
(Discontinuation
of
Interview)
Rules,
2017;
Legislative
Council
Promulgated
(Fourth
Amendment) Rules, 2019.
4 All. Sushil Kumar & Ors. Vs. Legislative Council & Ors.
1005
The law is well settled that the Court
should avoid fishing and roving enquiry in
the matter on the basis of which a person
can set-out his case. Allegations should
not be vague and general and particulars
of
corrupt
practice
must
be
stated
specifically. In an appropriate case, if the
material is necessary, the Court can order for
production of relevant documents, but before
that, it would be the duty of the party, asking
production of documents, to make-out a case
that it would be necessary that certain
documents are to be produced. (Para 23)

B. Scope of Judicial Review - Appointments
for a post in a public body must be in a fair and
reasonable term. Fairness and reasonableness
must be ensured in entire process of selection.
The
decision
of
recruiting
body
is
amenable to judicial review, subject to
settled principle that it should take the
decision in accordance with law, and best
suited to sanctity and integrity of the
selection
process.
The
selection
process/exercise can stand vitiated itself
where the irregularities in the process
have taken place at systematic level.
(Para 24)

If the systematic irregularities or cross-over into
the domain of fraud as a result of which the
credibility and legitimacy of the process gets
squarely affected then the entire selection
requires to be quashed. However, if some of the
participants in the selection process, who
appeared at the examination or selection,
themselves are guilty of irregularities, and there
is possibility to segregate such persons, who are
guilty of wrong-doing from others, then the
entire selection is not to be cancelled. Such
persons, who had indulged in wrong-doing, their
cases should be excluded from the selection
process. (Para 24)

C. Recruitment to public services must
command public confidence. If there is a
systematic failure to ensure the fairness,
impartiality
and
sanctity
of
the
examination then the examination is to be
cancelled. Persons, who are recruited, are
intended to perform public functions associated
with the functioning of the Government. Where
the entire process is found to be flawed, its
cancellation may undoubtedly cause hardship to
a few, who may not be specifically found to be
involved in wrong-doing, however, to maintain
public confidence in the selection process, to
ensure its integrity, sanctity and credibility in
the recruitment/selection process, in such a
situation the entire selection process has to be
cancelled. The petitioners have not been able to
point
out
such
a
systematic
failure
or
irregularities in the selection process. (Para 25)

D. Recruitment for a public post must be
in free and reasonable terms. A fair and
reasonable process of selection to posts,
subject to the norm of equality of
opportunity is mandate of Articles 14
and 16 of the Constitution of India. To
maintain
the
public
confidence
in
the
recruitment
process
in
the
Legislative
Assembly and Legislative Council in respect of
Class-III posts, the recruitment should be in
the
hands
of
the
specialized
statutory
recruitment body, and not in the hands of a
selection committee or a private agency.
Therefore, it is directed that in future all
Class-III posts in Assembly and Council are to
be filled up by the selection made by the UP
Subordinate Services Selection Commission.
In this respect, necessary amendment in the
recruitment rules are to be carried out within
a period of three months from today. (Para
26, 27)

Writ petition dismissed, so far as the
prayer made for quashing of the selection
pursuant to the impugned advertisement
is concerned. ((E-4)

Precedent followed:

Sachin Kumar & ors. Vs Delhi Subordinate
Service Selection Board (DSSB) & ors., (2021) 4
SCC 631 (Para 25)

Present petition seeks quashing of the
entire process of selection pursuant to
the Advertisement No. 01 of 2020
dated 17.07.2020 and Supplementary
Advertisement dated 27.09.2020.

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)
1006 INDIAN LAW REPORTS ALLAHABAD SERIES

1. The present petition under Article
226 of the Constitution of India has been
filed
by
the
petitioners,
who
were
appointed on contractual basis as per the
scheme contained in the Government Order
No.A-2/234/10-98-24(6)97
dated
22.05.1998 issued by the Department of
Finance, Government of Uttar Pradesh,
providing that appointment to fill up
vacancies in Legislative Council Secretariat
arising in Class-III and Class-IV posts
would be made on temporary/daily-wagebasis for a maximum period of six months
at a time, and the said Government Order
specifically mentioned that employees,
appointed on temporary and daily-wagebasis, shall not have any claim for
regularization.

2. The petitioner nos. 1, 2 and 3
were given contractual appointments on the
post of assistant review officer vide orders
dated
20.11.2012,
11.01.2011
and
24.12.2014 respectively.

3. The service conditions of
officers/employees
of
Legislative
Council Secretariat are governed by the
U.P. Legislative Council Secretariat
(Recruitment and Condition of Service)
Rules, 1976 (hereinafter referred to at
the "Rules, 1976") framed under Article
187(B) of the Constitution of India. The
Rules, 1976 have been amended vide
4th
Amendment
Rules,
2019
(hereinafter referred to as the "Rules,
2019") notified on 14.01.2020. One of
the important and major changes in
amended Rules is that the posts, which
were earlier within the purview of U.P.
Public Service Commission, have been
taken out from the purview of the U.P.
Public Service Commission, and the
said posts have been brought within the
purview of a selection committee to be
constituted under the amended Rule-6
(i-D).

4. Vide Advertisement dated
17.09.2020
and
supplementary
advertisement dated 27.09.2020 Online
applications were invited for holding
recruitment for 99 vacancies of 11
cadres, including the posts of assistant
review officer, review officer and
additional private secretary.

5. The petitioners applied for 3
posts i.e. for the post of assistant review
officer, review officer and additional
private
secretary.
They
were
unsuccessful
in
the
preliminary
examination of the recruitment process.

6. In the present petition, the
petitioners have sought quashing of the
entire process of selection pursuant to
the Advertisement No.01 of 2020 dated
17.07.2020
and
Supplementary
Advertisement dated 27.09.2020.

Further prayer has been made for
issuance of a direction to the respondents to
allow the petitioners to continue to work on
their respective posts as per scheme of
Government Order dated 22.05.1998.

7. In support of their prayers, the
petitioners have made allegations of
nepotism,
favoritism,
mala
fide
and
violation of rules in the selection process. It
is further alleged that earlier it was the U.P.
Public Service Commission, which was
making selection for the posts advertised,
however, amendment in the Rules, 1976
were made, and in a collusive manner,
selection has been entrusted to a private
agency. It is further alleged that the paper
was leaked on the day of the examination at
Gorakhpur Center. Though the examination
4 All. Sushil Kumar & Ors. Vs. Legislative Council & Ors.
1007
at Gorakhpur Center was cancelled, but it is
alleged
that
in
the
present
era
of
technology, where semiconductors and
electronic revolution has taken place, in a
big way, leakage of paper at one center
amounts to leakage of paper at all centers.

8. Learned counsel for the
petitioners has also submitted that the
conjoint reading of Rules, 21, 22 and 23 of
Rule-6 (i-D) would establish that the Rule22(2) is in derogation of the scheme of
Rule-21 of Rule 6(i-D). Now, it is the
selection committee, which is empowered,
to
hold
written-examination
and/or
interview.

9. It is important to note here that
Rule-22 (2) provides that the Chairman
may authorize any external agency to
conduct the whole selection process or part
thereof, therefore, the submissions made on
behalf of the petitioners that the entire
selection from issuing advertisement to
conducting
written-examination
and
holding interview etc. is a job of selection
committee referred to in Rule-6(i-D) does
not appear to be correct in view of the
scheme of the Rules. It has been submitted
that in the present case only the writtenexamination has been conducted, and no
interview was conducted by the selection
committee before declaring the result of
final selection.

10.

Under
Rule-21
writtenexamination and/or interview is prescribed
and, therefore, the written-examination is to
be mandatorily followed by the interview,
and in case the selection is to take place
only on the basis of interview, there will be
no requirement of written-examination.
However, since the written-examination
was conducted, interview should have been
conducted.
11. It may be said that the
petitioners have lost sight of the Uttar
Pradesh Direct Recruitment to Junior Level
Posts (Discontinuation of Interview) Rules,
2017
whereby
the
interviews
for
appointment to the posts of Class-III and
Class-IV posts have been discontinued, and
the appointments are to be made only on
the basis of written-examination.

12. It has been next submitted on
behalf of the petitioners that without
disclosing
the
marks
obtained
and
publication of names of the successful
candidates, the online forms were called for
the
main-examination.
The
selection
comittee, however, relaxed the condition
and uploaded the offline forms, which
could have been downloaded, and filled at
the time of main-examination. It is alleged
that several candidates close to the present
and the retired officers of Secretariat, were
selected, and the candidates of personal
choice of Principal Secretary of the
Legislative Council Special Secretary,
Legislative
Council
and
Chairman,
Legislative Council and its Members
Secretary
and other
officers
of
the
Legislative Council have been arrayed as
respondents. It is alleged that the whole
selection process was an eye-wash, and in
violation of due process of law.

13. Further allegation of the
petitioners is that two persons, namely,
Manoj Kumar Sahani and Sunil Kumar
Yadav, who were working on the contract
basis,
have
been
regularized/given
substantive appointments prior to holding
the selection against the statutory rules.

14. The main-examination was
conducted and, result was declared on
08.01.2021 then the petitioners made
allegation that one Pankaj Mishra, who was
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
working as officer-on-special-duty with the
Chairman, Legislative Assembly, who does
not have the requisite eligibility got
selected
as
officer-on-special-duty
(publication) against the rules.

15. The petitioners have filed an
application
for
interim
direction
on
19.01.2023 accompanied by an affidavit
alleging that TSR Data Processing Private
Limited agency was given the work for
conducting the examination for selection on
Class-III and Class-IV posts in Uttar
Pradesh Legislative Council. The said
agency was near & dear to the then
Chairman of the Legislative Council. One
of the directors of the said agency, Smt.
Bhavana Yadav has been selected and
appointed through the impugned selection
as review officer in the Legislative Council,
and this fact would itself be sufficient to
establish that the selection in question was
nothing but a complete eye-wash, and a
drawing-room-arrangement.
A
list
of
candidates has been drawn/mentioned in
paragraph-4 of the affidavit filed in support
of the application for interim direction to
show that several candidates, who are
relatives of the officers working in the
Legislative Council, have been selected. It
was alleged that one candidate, namely,
Anirudh Yadav (Roll No.145198), who
answered only 8 questions, was declared
successful
in
written-examination,
however, his name did not find place in the
final select list.

16. Mr. Shobhit Mohan Shukla,
learned counsel for the petitioners, in view
of the submissions, has prayed that the
entire selection may be cancelled.

17. On the other hand, Mr. Gaurav
Mehrotra,
learned
counsel
for
the
respondents, has submitted that only after
being
declared
unsuccessful
in
the
preliminary-extermination, result whereof
was declared on 11.12.2020, the instant
writ petition was filed by the petitioners.
The selection for different posts advertised
had already been concluded, and most of
the selected candidates had joined on their
respective posts, and they have been
confirmed. The petitioners had applied only
against 3 posts, out of 99 vacancies of 11
cadres, and they cannot be allowed to assail
the entire advertisement. The petitioners
have not challenged the vires of the Rules,
2019, but they have sought relief in
accordance with unamended Rules, 1976,
and such a prayer is not maintainable in the
eyes of law. The age relaxation of 2 years
to the maximum age-limit was prescribed
under the advertisement in addition to the
age- relaxation available to the candidates
of reserved category through reservation,
and further, employees appointed on
contractual/daily-wage-basis were given
weightage of 2 marks in the preliminaryexamination, and 5 marks in mainexamination.
The
petitioners,
despite
availing the age-relaxation and weightage
of marks, could not become successful in
the preliminary-examination and, therefore,
they did not feature in the list of candidates,
who were called for the main-examination.
The petitioners, who applied only against
three posts, cannot be allowed to challenge
the entire selection process, which has been
free & fair.

18. Learned counsel for the
respondents, Mr. Gaurav Mehrotra has
further submitted that several requests were
sent to the U.P. Public Service Commission
by the Legislative Council to undertake
recruitment
exercise
for
vacancies,
however, the Public Service Commission
could
not
undertake
the
recruitment
exercise for filling up the posts and,
4 All. Sushil Kumar & Ors. Vs. Legislative Council & Ors.
1009
therefore, a conscious decision was taken in
the year 2011 to make recruitment by the
Council and Assembly themselves. In
2019, the Chairman of the Legislative
Council promulgated (Fourth Amendment)
Rules, 2019 by which the recruitment
process for different secretariat staff of the
Legislative Assembly and Council was
taken out from the purview of the U.P.
Public Service Commission, and this power
is conferred under the Constitution itself.

19. On behalf of the respondents,
learned counsel Mr. Gaurav Mehrotra has
forcefully submitted that the list of
candidates, who were said to be related to
the
officers
and
employees
of
the
Legislative Council, is wholly incorrect,
and the petitioners are trying to indulge into
fishing and roving enquiry. No-one, who is
in relation to the Secretary of the
Legislative Council, has been selected. The
allegations are completely vague. The
burden of proving mala fide is on the
person making allegations, and the burden
is very heavy. There is every presumption
in favour of administration that the power
has been exercised bona fide and in good
faith. Allegations of mala fide demand
proof of high degree of credibility.

20. Mr. Gaurav Mehrotra, learned
counsel for the respondents, has further
submitted that similar challenge was made to
the Advertisement No.1 of 2020 dated
07.12.2020 issued by the Secretariat of U.P.
Legislative Assembly for interview, inter alia,
to the post of assistant review officer etc, and
this Court has dismissed the writ petition,
holding that the Court cannot direct a fishing
and roving enquiry on the basis of which a
person can set-out his case.

21. Mr. Shobhit Mohan Shukla,
learned counsel for the petitioners, in
rejoinder, has submitted that if this Court
does not agree with the submission made
by him on behalf of the petitioners for
quashing
the
entire
selection,
the
petitioners may be allowed to work on
contractual basis as there are posts, which
are lying vacant, till regularly selected
candidates come and join the posts.

22.

I
have
considered
the
submissions advanced by the learned
counsel for the parties.

23. This Court, while considering
similar issue in respect of the selection and
appointment pursuant to the Advertisement
No.1 of 2020 dated 07.12.2020 issued by
the Secretariat of Uttar Pradesh Legislative
Assembly for recruitment, inter alia, to the
post
of
assistant
review
officer,
in
paragraphs-24, 25 and 26 of the order dated
08.10.2021 passed in Writ Petition Service
Single No.11896 of 2021 has held as
under:-

 "24. It is well settled legal
position that the Court should not hold a
fishing and roving enquiry on the basis of
which a person can set-out his case. In an
appropriate case, if the material is
necessary, the Court can order for
production of relevant documents, but
before that, it would be the duty of the
party, asking production of documents, to
make-out a case that it would be necessary
that certain documents are to be produced.
The Supreme Court in the case of
Dhartipakar Madan Lal Agarwal Vs. Rajiv
Gandhi, 1987 Supp SCC 93, which was an
election matter, held that in respect of
allegations of corrupt practice, which are
in the nature of criminal charge, there
should be no vagueness in the allegations.
Allegations should not be vague and
general and particulars of corrupt practice
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
must be stated specifically. The law is well
settled that the Court should avoid fishing
and roving enquiry in the matter.

 25. The Supreme Court in a
recent judgment in the case of Charansingh
Vs. State of Maharashtra and others,
(2021) 5 469 has held that roving and
fishing enquiry is not permissible under the
law. Paragraph-19 of Charansingh Vs.
State of Maharashtra and others' case
(supra), which is relevant, is extracted
hereunder:-

 "19. However, the next question
posed for the consideration of this Court is,
whether to what extent such an enquiry is
permissible and what would be the scope
and ambit of such an enquiry. By the
impugned notice, impugned before the
High Court, and during the course of the
"open enquiry", the appellant has been
called upon to give his statement and he
has been called upon to carry along with
the information on the points, which are
referred to hereinabove for the purpose of
recording his statement. The information
sought on the aforesaid points is having a
direct connection with the allegations made
against
the
appellant,
namely,
accumulating assets disproportionate to his
known sources of income. However, such a
notice,
while
conducting
the
"open
enquiry", shall be restricted to facilitate the
appellant to clarify regarding his assets
and known sources of income. The same
cannot be said to be a fishing or roving
enquiry. Such a statement cannot be said to
be a statement under Section 160 and/or
the statement to be recorded during the
course of investigation as per the Code of
Criminal Procedure. Such a statement even
cannot be used against the appellant
during the course of trial. Statement of the
appellant and the information so received
during the course of discrete enquiry shall
be only for the purpose to satisfy and find
out whether an offence under Section
13(1)(e) of the PC Act, 1988 is disclosed.
Such a statement cannot be said to be
confessional in character, and as and when
and/or if such a statement is considered to
be confessional, in that case only, it can be
said to be a statement which is selfincriminatory, which can be said to be
impermissible in law."

 26. In view of the aforesaid
discussions, I find that the petitioners have
not
been
able
to
substantiate
the
allegations
of
corrupt
practices,
manipulations and illegal and arbitrary
exercise of powers, while conducting the
selection process for the post of ARO
pursuant
to
the
Advertisement
and,
therefore, this Court cannot permit the
petitioners to open a fishing and roving
inquiry of the selection held pursuant to the
Advertisement when the petitioners could
not secure marks above the cut-off-marks
in their written examination."

24. The present case is identical
one to the aforesaid case in respect of the
recruitment to the Legislative Assembly
and, therefore, it is squarely covered.
However, it is required to note that
appointments for a post in a public body
must be in a fair and reasonable term.
Fairness and reasonableness must be
ensured in entire process of selection. The
decision of recruiting body is amenable to
judicial review, subject to settled principle
that it should take the decision in
accordance with law, and best suited to
sanctity and integrity of the selection
process. The selection process/exercise can
stand vitiated itself where the irregularities
in the process have taken place at
systematic
level.
If
the
systematic
4 All. Sushil Kumar & Ors. Vs. Legislative Council & Ors.
1011
irregularities or cross-over into the domain
of fraud as a result of which the credibility
and legitimacy of the process gets squarely
affected then the entire selection requires to
be quashed. However, if some of the
participants in the selection process, who
appeared at the examination or selection,
themselves are guilty of irregularities, and
there is possibility to segregate such
persons, who are guilty of wrong-doing
from others, then the entire selection is not
to be cancelled. Such persons, who had
indulged in wrong-doing, their cases should
be excluded from the selection process.

25. Recruitment to public services
must command public confidence. Persons,
who are recruited, are intended to perform
public
functions
associated
with
the
functioning of the Government. Where the
entire process is found to be flawed, its
cancellation
may
undoubtedly
cause
hardship to a few, who may not be
specifically found to be involved in wrongdoing,
however,
to
maintain
public
confidence in the selection process, to
ensure its integrity, sanctity and credibility
in the recruitment/selection process, in such
a situation the entire selection process has
to be cancelled. If there is a systematic
failure to ensure the fairness, impartiality
and sanctity of the examination then the
examination is to be cancelled. The
petitioners have not been able to point out
such a systematic failure or irregularities in
the selection process.

26. The Supreme Court, in the case
reported in (2021) 4 SCC 631 (Sachin
Kumar and others Vs. Delhi Subordinate
Service Selection Board (DSSB) and
others), has held that a fair and reasonable
process of selection to posts, subject to the
norm of equality of opportunity is mandate
of Articles 14 and 16 of the Constitution of
India. Recruitment for a public post must
be
in
free
and
reasonable
terms.
Throughout the selection process it is duty
of the public body to ensure fairness and
reasonableness of the process. Paragraphs
65 and 66 of the said judgment, which
would be apt to mention, are extracted
herein below:-

 "65. During the course of his
submissions, Mr P.S. Patwalia has sought
to provide explanations for each of the
systemic irregularities pointed out by the
first Committee, including the drastic
reduction in the number of candidates who
appeared for the Tier I examination, nonissuance of hard copies of admit cards,
shortlisting of candidates belonging to a
certain
geographical
area,
lack
of
randomisation in the examination centres,
among others. In response to this, the
learned ASG has pointed out that while
assessing whether the recruitment process
has been compromised, the factors (or
irregularities)
must
be
looked
at
cumulatively to ascertain whether they are
sufficiently grave to cancel the recruitment.
We find ourselves in agreement with the
learned ASG. So long as there is sufficient
basis
to
contend
that
mass-scale
irregularities have occurred, this Court
need not indulge in a roving inquiry to rule
out
all
possible
explanations
and
alternative
scenarios
where
such
irregularities would be justified.

 66. Recruitment to public services
must command public confidence. Persons
who are recruited are intended to fulfil
public
functions
associated
with
the
functioning of the Government. Where the
entire process is found to be flawed, its
cancellation
may
undoubtedly
cause
hardship to a few who may not specifically
be found to be involved in wrongdoing. But
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
that is not sufficient to nullify the ultimate
decision to cancel an examination where
the nature of the wrongdoing cuts through
the entire process so as to seriously
impinge upon the legitimacy of the
examinations which have been held for
recruitment. Both the High Court and the
Tribunal have, in our view, erred in laying
exclusive focus on the report of the second
Committee which was confined to the issue
of impersonation. The report of the second
Committee is only one facet of the matter.
The Deputy Chief Minister was justified in
going
beyond
it
and
ultimately
recommending that the entire process
should be cancelled on the basis of the
findings which were arrived at in the report
of the first Committee. Those findings do
not stand obliterated nor has the Tribunal
found any fault with those findings. In this
view of the matter, both the judgments of
the Tribunal and the High Court are
unsustainable."

27. In view thereof, to maintain the
public confidence in the recruitment
process in the Legislative Assembly and
Legislative Council in respect of Class-III
posts, the recruitment should be in the
hands
of
the
specialized
statutory
recruitment body, and not in the hands of a
selection committee or a private agency.
Therefore, it is directed that in future all
Class-III posts in Assembly and Council
are to be filled up by the selection made by
the Uttar Pradesh Subordinate Services
Selection Commission. In this respect,
necessary amendment in the recruitment
rules are to be carried out within a period of
three months from today.

28. The petitioners, who have been
given appointment on contractual basis,
should be allowed to work on contractual
basis and paid remuneration accordingly,
subject to their performing duties of the
posts, if the posts are vacant on which they
have been working, till regularly selected
candidates come from Uttar Pradesh
Subordinate
Services
Selection
Commission and join the posts.

29.

With
the
aforesaid
observations/directions, this petition stands
dismissed, so far as the prayer made for
quashing of the selection pursuant to the
impugned advertisement is concerned.
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(2023) 4 ILRA 1012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.04.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ A No. 371 of 2012

Shabir Ali ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Nripendra Mishra

Counsel for the Respondents:
C.S.C.

A. Service Law - Suspension - Salary -
U.P. Government Servant (Discipline and
Appeal) Rules, 1999 - Rule 4(3)(ka) - The
deemed suspension of the petitioner can
be continued, even after his release, by
the appointing authority by passing an
express order. It may or may not be
revoked by the competent authority. In
this case, a decision has been taken by the
appointing
authority
vide
order
dated
05.01.2012. (Para 6)

Rule 4(4) of the Rules of 1999 provides that
a government servant shall be deemed to have
been placed or, as the case may be continued