# U.P. Subordinate Services Selection Commission Lko v. Poonam Dwivedi

- **Citation:** (2023) 1 ILRA 433
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-09
- **Case number:** Special Appeal. No. 467 of 2022
- **Bench:** Ramesh Sinha, Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-subordinate-services-selection-commission-lko-v-poonam-dwivedi-49646
- **Pages:** 9

## Headnote

Service Law
-
UP Public
Service
(Reservation
for
Economically
Weaker
Sections) Act, 2020 - Post of Health workers
(female) - Selection - Reservation under
Economic Weaker Section (EWS) segment
claimed - Income certificate was issued
prior
to
the
date
of
issuance
of
advertisement - Relevance - Petitioners
were considered under General category -
Legality challenged - Held, the action of the
appellants ignoring the certificates and
considering the case of the writ petitioners
in open category which they did not make
the cut-off for the open category cannot be
faulted. (Para 38)
B. Procedural law - Non-impleadment of
last selected candidate - Objection raised in
the counter affidavit filed in writ petition -
However, no effort to cure the defects was
made - Effect - Held, the writ petitioners
did not implead the last selected candidates
of the open category rather some randomly
selected candidates have been impleaded,
this shall not cure the defect of not
impleading the last appointed candidates
from the open category - Ranjan Kumar's
case relied upon. (Para 36 and 40)
Special Appeal allowed and Writ petition
dismissed. (E-1)
List of Cases cited:
434 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

1 All. U.P. Subordinate Services Selection Commission Lko. Vs. Poonam Dwivedi
433

17. The Appellants have submitted that
the respondent No.1-petitioner had filed a false
declaration in the application form for Primary
Teachers Recruitment Examination, 2019 as on
the cut off date the respondent No.1-petitioner
did not have prescribed qualification for
applying in the aforesaid examination. In this
respect, it is to be noted that prior to the cut off
date the mistake/error in the result of BTC
Course 2015 of the respondent No.1-petitioner
was brought to the notice of the Appellants by
the respondent No.1-petitioner. Appellant No.4
by his communication dated October 28, 2018
has acknowledged the aforesaid mistake and
has recommended to Appellant No.2 for
issuance of the corrected mark sheet. The delay
in correction of the mark sheet of the
respondent No.1-petitioner is at the behest of
the Appellants and for no fault of the
respondent No.1-petitioner, the respondent
No.1-petitioner
candidature
for
Primary
Teachers Recruitment Examination, 2019
cannot be faulted. Once the respondent No.1petitioner has duly passed the BTC course on
the relevant date. The Appellants cannot be
permitted to take benefit of their own mistake
and subsequently objected to the candidature of
the respondent No.1-petitioner for Primary
Teachers Recruitment Examination 2019.

18. In the result, we do not find any error
in the impugned judgment and order passed by
the learned Single Judge and as such the present
Special Appeal lacks merit and is dismissed
----------
(2023) 1 ILRA 433
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.01.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE JASPREET SINGH, J.

Special Appeal. No. 467 of 2022
&
Special Appeal. No. 464 of 2022
&
Special Appeal. No. 465 of 2022
&
Special Appeal. No. 466 of 2022

U.P.
Subordinate
Services
Selection
Commission Lko. ...Appellant
Versus
Poonam Dwivedi ...Respondent

Counsel for the Appellant:
Sri Gaurav Mehrotra

Counsel for the Respondent:
Sri Alok Mishra, Sri Abhay Pratap Singh,
C.S.C., Priyanka Singh

A.
Service Law
-
UP Public
Service
(Reservation
for
Economically
Weaker
Sections) Act, 2020 - Post of Health workers
(female) - Selection - Reservation under
Economic Weaker Section (EWS) segment
claimed - Income certificate was issued
prior
to
the
date
of
issuance
of
advertisement - Relevance - Petitioners
were considered under General category -
Legality challenged - Held, the action of the
appellants ignoring the certificates and
considering the case of the writ petitioners
in open category which they did not make
the cut-off for the open category cannot be
faulted. (Para 38)
B. Procedural law - Non-impleadment of
last selected candidate - Objection raised in
the counter affidavit filed in writ petition -
However, no effort to cure the defects was
made - Effect - Held, the writ petitioners
did not implead the last selected candidates
of the open category rather some randomly
selected candidates have been impleaded,
this shall not cure the defect of not
impleading the last appointed candidates
from the open category - Ranjan Kumar's
case relied upon. (Para 36 and 40)
Special Appeal allowed and Writ petition
dismissed. (E-1)
List of Cases cited:
434 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Special Leave Petition No. 9040 of 2020; Km.
Laxmi Saroj & ors. Vs St. of U.P.& ors. decided
on 15.12.2022
2. Ranjan Kumar& ors. Vs St. of Bihar & ors.;
2014 (16) SCC 187
3. Vijay Kumar Kaul& ors. Vs U.O.I. & ors.; 2012
(7) SCC 610
(Delivered by Hon'ble Ramesh Sinha, J.
&
Hon'ble Jaspreet Singh, J.)

1. This is a bunch of four special
appeals which arise out of a common
judgment and order dated 19.10.2022 passed
by the learned Single Judge in writ petitions
no. 5392 (Writ-A) of 2022 (Poonam Dwivedi
Vs. State of U.P. and others); Writ Petition
No. 6974 (Writ-A) of 2022 (Divya Awasthi
Vs. State of U.P. and others); Writ Petition
No. 6911 (Writ-A) of 2022 (Archana Saxena
Vs. State of U.P. and others); Writ Petition
No. 5264 (Writ-A) of 2022 (Komal Vs. State
of U.P. and others) and Writ Petition No.
6357 of 2022 (Shanu Tiwari Vs. State of U.P.
and others as well as in Writ Petition No.
2109 of 2022 (Thakura Devi and Another Vs.
State of U.P. and others). Since the issue of
fact and law is common in all the four
appeals, hence, they are being decided by this
common judgment.

2. In order to appreciate the controversy
involved in the instant appeals, certain facts
leading up to the appeals are being noticed
hereinafter. For the sake of convenience, the
facts are being noted from leading Special
Appeal No. 467 of 2022, however, wherever
required the respective data and dates relating
to the contesting respondents/writ petitioners
will be noted at the appropriate place.

3.
The
U.P.
Subordinate
Service
Selection
Commission
had
issued
an
advertisement on 15.12.2021 for filling up
9212 posts of health workers (female). The
last date for submission of the application
form was 05.01.2022. In pursuance of the
said
advertisement,
the
main
written
examination was conducted on 08.05.2022
wherein the petitioners before the writ court
had all appeared. The results were declared
on 26.05.2022 and all the petitioners before
the writ court were declared successful in the
main examinations and then they were
required to appear in the next level
examination which was held between
09.06.2022 to 18.06.2022 and after the
eligibility documents were verified, the final
results were declared on 06.08.2022 where
the names of the petitioners before the writ
court did not find mention and it is in the
aforesaid backdrop that the writ petitions
came to be filed.

4. The issue raised before the writ court
was that all the writ petitioners before the
writ court were claiming the benefit of
reservation under the Economic Weaker
Section segment.

5. It has been the specific case of the
writ-petitioners before the writ court that they
all possess the requisite income certificate
which clearly indicated that they were
covered by the eligibility criteria for the grant
of such reservation for economically weaker
section and that the Commission had
arbitrarily ignored the said certificates.

6. It is in light thereof it was prayed
by the writ petitioners that the final select
list made on 06.08.2022 be set aside and
further direction was sought that the said
select list may not be given effect to prior
to considering the case of the petitioners
who were eligible to be given the benefit of
reservation under the EWS segment.

7. The U.P. Subordinate Service
Selection Commission contested the claim
1 All. U.P. Subordinate Services Selection Commission Lko. Vs. Poonam Dwivedi
435
of the writ petitioners before the writ court
by filing a counter affidavit and raised the
plea that the certificate submitted by the
writ petitioners was not in accordance with
the advertisement and was defective.

8. It was also pleaded that the EWS
certificate was neither in consonance with
the format issued by the Government of
Uttar Pradesh which was in furtherance of
the Government Orders dated 18.02.2019
and 14.03.2019 and that the said EWS
certificate did not relate to the financial
year in question, hence, the same was not
found appropriate for being considered. It
was also pleaded that since the certificate
was not found valid of the writ petitioners,
consequently, they were considered in the
open category and as they did not meet the
cut-off in the open category, hence, their
names did not find place in the select list. It
was also urged that the writ petitions were
bad for non-impleadment of the necessary
parties as the persons who have been
selected had not been impleaded and the
petitions were also defective on the
aforesaid count.

9. The writ court taking note of the
respective submissions and the material on
record held that since the details and
income of the candidate and his/her family
member was filled up by the Competent
Authority and that the advertisement was
vague and the Government Order dated
14.03.2019 as well as the advertisement did
not mention the word 'financial year' and
used the words ''previous year' hence, the
previous year would normally be taken to
be the calender year and found that there
appeared to be some confusion and
considering the aforesaid, the writ petitions
were partly allowed and the writ court
directed the concerned Tehsildar to issue
fresh certificates to the writ petitioners
correctly indicating the income of the
candidates and that the said certificates be
issued
for
the
period
2021-22
and
documents pertaining to the financial year
2021 shall be issued by the Competent
Authority. The said exercise was required
to be completed within a period of two
weeks with a further direction that after
having received the fresh certificates, the
same were to be submitted before the U.P.
Subordinate Service Selection Commission
within
a
week
thereafter
and
the
Commission was required to proceed
considering the candidature of the writpetitioners on their merits before finalizing
final results/issuing appointment letters. A
further direction was issued to the State
Government to look into the matter and
issue necessary clarification with regard to
the contents of the EWS certificates and
instruct the Competent Authorities to fill up
the same as it is incorrect issuance which
affects the innocent candidates.

10. The relevant paras of the
impugned judgment reads as under:-

"18. In view of above, it is
directed that the concerned Tehsildar who
is the competent authority and who has
issued EWS certificates to the petitioners
shall issue fresh certificate correctly
indicating the income of the candidate and
his/her family members, the said income
certificate shall be issued for period 202122 and documents pertaining to financial
year 2020-2021 shall be issued by the
competent authority.

19. Let aforesaid exercise be
completed within a period of two weeks
from the date of production of certified
copy of this order before the competent
authority and fresh certificate shall be
issued in the light of observations made
436 INDIAN LAW REPORTS ALLAHABAD SERIES
herein above and same shall be submitted
to the U.P. Subordinate Service Selection
Commission, within one week thereafter on
issuance of the same. On receipt of such
certificate(s) the Commission shall proceed
to consider candidature of the petitioners
on their merits before finalising the final
results/issuing appointment letters.

20. Before parting with the matter
this Court is of the considered view that the
State Government should also look into the
matter and issue necessary clarification
with regard to the contents of EWS
certificate and instruct the competent
authorities to fill up the same legally and
properly, as its incorrect issuance will
adversely impact innocent candidates, who
rely on the wisdom of the competent
authority and presume that the certificate
issued is valid and correct and in
accordance with law. "

11. It is being aggrieved against the
aforesaid
judgment
and
order
dated
19.10.2022 that the U.P. Subordinate
Service
Selection
Commission
have
assailed the said judgment in the aforesaid
four appeals which as noticed above is
being decided by this common judgment.

12. We have heard Sri Gaurav
Mehrotra, learned counsel appearing for the
U.P.
Subordinate
Service
Selection
Commission, the appellants of the appeals,
Sri Alok Mishra, learned counsel for the
Poonam Dwivedi who is the respondent no.
1 in Special Appeal No. 467 of 2022, Sri
Sandeep Kumar Srivastava, learned counsel
for the respondent no. 1 in Special Appeal
No. 465 of 2022, Sri Shobh Nath Pandey,
learned counsel appearing for Ms. Komal,
the respondent no. 1 of Special Appeal No.
464 of 2022 and Sri Durga Prasad Shukla,
learned counsel for Sri Shanu Tiwari, the
respondent no. 1 in Special Appeal No. 466
of 2022 and the learned Standing Counsel
for the State-respondents.

13. Sri Alok Mishra, learned counsel
appearing for the respondent Smt. Poonam
Dwivedi in Special Appeal No. 467 of
2022 has filed a preliminary objection
which is taken on record.

14. Sri Gaurav Mehrotra, learned
counsel for the appellants in all the appeals
has strenuously urged that the impugned
order dated 19.10.2022 is bad for the
reasons that admittedly the date of the
advertisement inviting applications was
15.12.2021 and the last date of submission
of the application was 05.01.2022. The
advertisement clearly indicated that in case
of any modification, the same could be
made latest by 12.01.2022. In so far as the
issue in hand is concerned, it related to the
grant of benefit of EWS Reservation to the
writ
petitioners.
In
terms
of
the
advertisement which was issued, a copy of
which was annexed as Annexure No. 8 to
the writ petition in Clause-8 clearly
required the candidates to furnish the
necessary documents claiming the benefit
of reservation which included the EWS
certificate and its profarma was also
annexed with the advertisement.

15. It has been further submitted that
since the selection for the post of Health
Worker (female) was being done in the
year 2022, hence, the EWS certificate
which was required of the previous year
ought to be that of the year 2021 which
commenced on 01.04.2020 and ended on
31.03.2021.

16. It has further been pointed out that
in so far as the case of Ms. Poonam
Dwivedi is concerned, her certificate is
1 All. U.P. Subordinate Services Selection Commission Lko. Vs. Poonam Dwivedi
437
dated 12.01.2021 and it is urged that the
same has been furnished and it does not
relate to the financial year 2021 as on the
date of issuance of the said certificate i.e.
12.01.2021, the financial year 2020-21 had
yet not ended and therefore there could not
have been a proper estimation regarding the
income of the candidate and his/her family
which could only be issued after the end of
the said financial year.

17. In order to further buttress his
submissions, the learned counsel for the
appellants has drawn the attention of the
Court to the Government Order dated
18.02.2019 which was filed as Annexure
No. 9 with the short counter affidavit by the
appellant before the writ court also to the
Government Order dated 14.03.2019 which
was filed as Annexure No. 10 with the
counter affidavit before the writ court and
to the provisions of the Uttar Pradesh
Public
Service
(Reservation
for
Economically Weaker Sections) Act, 2020
(hereinafter referred to as "Act of 2020)
which was filed as Annexure No. 8 to the
counter affidavit before the writ court.

18. The thrust of the submission is that
the certificate which is issued by the
Tehsildar was being done in terms of the
Government Order dated 18.02.2019. The
said Government Order clearly referred to the
notification
issued
by
the
Central
Government in this regard dated 19.01.2019
which also specified the criteria which
determined the eligibility of a person seeking
the benefit of reservation for economically
weaker sections.

19. It has been submitted that in ClauseIV of the said Government Order dated
18.02.2019, it is clearly mentioned that an
application for seeking such certificate
claiming reservation on the ground of
economically weaker sections will refer to a
year prior from the year when the application
is made. Even in the subsequent Government
Order dated 14.03.2019, the certificate would
be issued in the format which was appended
to the said Government Order of 14.03.2019
which also clearly had a column indicating
the financial year for which it was valid.

20. It is further pointed out that the Act
of
2020
clearly
defined
the
word
"Economically Weaker Sections of Citizens"
in Section 2(b). Attention has been drawn to
Section 7 of the Act of 2020 to indicate that
the certificate was to be issued by the officer
not below the rank of Tehsildar and there is a
clear reference that the Government Orders
dated 18.02.2019 shall be deemed to have
been issued under the aforesaid Sections.

21. In the aforesaid backdrop, it is
urged that where the EWS Certificate which
was being issued was in pursuance of the
powers conferred earlier in terms of the
Government Order dated 18.02.2019 and
14.03.2019 and later after the promulgation
of the Act of 2020 in terms of the Act both
had a prescribed format and it was required to
be mentioned that the said certificate would
be valid for which financial year.

22. In the instant case, in the case of
Poonam Dwivedi, the certificate as furnished
by the writ petitioner was dated 12.01.2021
and was on record as Annexure No. 12 with
the writ petition. It clearly stated that the said
certificate was for of the financial year 202021. The certificate further indicated that
Poonam
Dwivedi
belonged
to
an
economically weaker section as for the
financial year 2020-21 and the annual income
of his/her family was less than Rs. 8,00,000/-.

23. As far as the certificate of Shanu
Tiwari is concerned, a copy of which was
438 INDIAN LAW REPORTS ALLAHABAD SERIES
brought on record as Annexure No. 9 with
the writ petition filed by her it was dated
21st of January, 2021 and it was valid for
the year2019-20.

24. In so far as the EWS certificate of
Archana Saxena is concerned, the same
was filed as Annexure No. 11 with her writ
petition and is dated 05.02.2021 and it was
valid for the financial year 2019-20.

25. The certificate of Ms. Komal was
filed with her writ petition as Annexure No.
1 dated 06.01.2021, however, in so far as
this certificate is concerned, the same
mentions only the year 2019.

26. It has also been urged by Sri
Mehrotra that apart from this glaring
discrepancy which was specifically pleaded
by the appellants before the writ court, the
petitioners did not chose to file any
rejoinder affidavit. The appellants before
the writ court had also raised a plea that the
writ petitioners had not impleaded the
validly selected candidates and thus the
petition was bad for non-impleadment for
such parties and consequently no relief
could have been granted.

27. It is lastly urged that the contentions
of the writ petitioners in the writ petition was
specific to the extent that the certificate
issued was valid and therefore they have been
illegally denied the benefit of the reservation
for the economically weaker sections. It is not
their case that the Tehsildar issued incorrect
certificates or that the writ petitioners were
prevented from filing better and correct
certificates. Neither the Tehsildar was
impleaded as a party rather there was a clear
contention in the petition that the certificates
were absolutely valid and the action of the
respondent (the appellants herein) was
arbitrary.

28. In the aforesaid backdrop, it is
urged that where large number of selections
was conducted and appointment letters were
due to be issued on account of the order
impugned, the entire process has been held
up even in respect of such persons who have
attained the selection on their merits and for
the said reasons, the impugned order deserves
to be set aside.

29. Sri Alok Mishra, learned counsel
who has argued the matter on behalf of Smt.
Poonam
Dwivedi
and
primarily
his
submissions have also been adopted by the
learned counsel appearing for the other
respondents
(the
writ
petitioners)
has
submitted that the appellant-Commission
does not have the right to assail the order. It is
urged that the direction was issued to the
Tehsildar to issue fresh certificates and it is
only once the certificate was handed over to
the Commission, was the Commission
required to look into the aspect and hence at
this stage where the Tehsildar has not issued
the certificates, the stage for the appellants to
assail the order has not arrived.

30. It is further urged that the learned
Single Judge has clearly noticed that the
parties had agreed that there was a confusion
and for the said reason and to put the
confusion at naught, the order has been
passed which does substantial justice to the
parties and as such the order impugned does
not require any interference.

31. The Court has considered the rival
submissions and meticulously perused the
material on record.

32. In so far as the facts in between
the parties is concerned, there is hardly any
dispute. It is not disputed by the parties that
the certificates, the reference of which has
been
mentioned
in
the
preceding
1 All. U.P. Subordinate Services Selection Commission Lko. Vs. Poonam Dwivedi
439
paragraphs nos. 22 to 25, the details given
therein is not correct. Now in the aforesaid
backdrop, if the contentions of the
respective parties is seen in context with
the material available on record including
the certificates, the advertisement, it would
be clear that the date of issuance of the said
advertisement is dated 15.12.2021. The
certificates of all the writ petitioners who
are before this Court were issued prior to
the date of issuance of the advertisement.

33. It is not the case of any of the writ
petitioners that the certificates that they have
furnished was issued after the date of
issuance
of
the
advertisement
dated
05.12.2021. It is also to be noticed that the
EWS certificates which is issued by the
Tehsildar for the purpose of claiming
reservation under the Economically Weaker
Segment is issued under the Government
Orders dated 18.02.2019 and 14.03.2019
which further crystallized in the Act of 2020.

34. It is also not disputed that the
certificates which were filed by the respective
writ petitioners who were before this Court,
all were issued after the promulgation of the
Act of 2020 which came into effect on 31st
August, 2020, thus, where the Act prescribes
a mode to do a thing in a particular manner
and it also saves the Government Order dated
18.02.2019 by making a reference in Section
7 of the Act, hence, it cannot be said that
there was confusion amongst the candidates
or the Authorities. It is also to be noticed that
the advertisement clearly provided that the
candidates who sought reservations must
have their certificates ready which were to be
submitted at the time of verification.

35. In the instant case, if the
certificates are perused, it would indicate
that they have been issued in the month of
January, 2021 and February, 2021 as shall
be evident from the details mentioned
hereinafter:-

(i) In case of Poonam Dwivedi,
the certificate is dated 12.01.2021 and is
valid for financial year 2020-21. Hence, the
certificates cannot be valid for 2020-21 as
the year had not been ended by then.

(ii) In the case of Archana
Saxena, the certificate dated 05.02.2021
and valid for financial year 2019-20,
though, it was required to be filed for the
financial year 2020-21, thus, this certificate
is not valid.

(iii) In the case of Komal, the
certificate is dated 06.01.2021 and is valid
for financial year 2019. This certificate also
did not relate to the year 2020-21,
accordingly not valid.

(iv) In the case of Shanu Tiwari,
the certificate is dated 21.01.2021 and valid
for financial year 2019-20. This certificate
too did not relate to the financial year
2020-21.
Hence
all
the
aforesaid
certificates are not valid.

36. Thus, for the said reason, we find
that this aspect of the matter has not been
appropriately considered by the learned
Single Judge. From the perusal of the
material on record, we further find that the
appellants had raised categorical pleas in
their counter affidavit regarding nonimpleadment of parties which has also not
been
addressed.
Moreover,
the
writ
petitioners also did not make any effort to
cure the defect and the plea which had been
raised.

37. In so far as the objections raised
by the respondents-writ petitioners is
concerned that the U.P. Subordinate
440 INDIAN LAW REPORTS ALLAHABAD SERIES
Service Selection Commission does not
have the locus to file the appeal that also
does not impress the Court for the reason
that it is the Commission who is required to
hold the examination, prepare a final list. In
the instant case, the eligibility is to be
considered as up to the last date of
submission
of
the
applications.
The
certificates which ought to have been
furnished was for the financial year 202021 which commenced on 01st of April,
2020 and ended on 31st of March, 2021
and thus, the certificates itself were not
valid for being considered and the view
adopted by the U.P. Subordinate Service
Selection Commission in rejecting the
candidature cannot be faulted. This aspect
has also not been appropriately considered
by the writ court. It would have been a
different matter that the certificates were
validly issued for the appropriate year but
due to some shortcoming of the Authority
the petitioners were loosing out the benefit,
but it is not the case here. Here in all the
cases, since the certificates were issued on
the various dates as noticed in para 35
above are not valid.

38. In light of the above, it cannot be
disputed that the certificates were invalid
and that the action of the appellants
ignoring the certificates and considering the
case of the writ petitioners in open category
which they did not make the cut-off for the
open category cannot be faulted.

39. The learned counsel for the
private respondents have relied upon a
decision of the Apex Court in the case of
Km. Laxmi Saroj and Others Vs. State of
U.P. and others in Special Leave Petition
No. 9040 of 2020 decided on 15.12.2022,
however, from the perusal thereof, it would
indicate that the facts were different which
are not applicable in the instant case. In the
said case, it was found that the candidates
were not at fault as the certificate of
registration which was applied for in time
had not been granted by the Authority
concerned
and
in
the
aforesaid
circumstances,
the
Apex
Court
had
intervened, however, in the instant case, it
is clear from the pleadings of the parties
that they had submitted the certificates
which were not valid and appropriate for
the
aforesaid
reasons
as
noticed
hereinabove, hence, the said decision of
Km. Laxmi Saroj (Supra) does not come to
the rescue of the writ petitioners-private
respondents.

40. Another fact that needs attention
is that 921 posts were reserved for EWS
category against which 644 candidates
were selected. The remaining 277 posts
were filled up by the open category in
terms of Section 3 (c) of the Act of 2020
and the writ petitioners did not implead the
last selected candidates of the open
category rather some randomly selected
candidates have been impleaded, this shall
not cure the defect of not impleading the
last appointed candidates from the open
category. This Court is fortified in its view
in light of the decision of the Apex Court in
the case of Ranjan Kumar and others Vs.
State of Bihar and others reported in 2014
(16) SCC 187; Vijay Kumar Kaul and
others Vs. Union of India and others 2012
(7) SCC 610.

41. In light of the aforesaid detailed
discussions, we have no hesitation to hold
that the impugned order passed by the writ
court dated 19.10.2022 deserves to be set
aside, consequently, the special appeals
are allowed. The writ petitions before the
Court shall stand dismissed. Costs are
made easy.
----------
1 All. Rajendra Singh Vs. State of U.P. & Ors.
441
(2023) 1 ILRA 441
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.11.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal No. 579 of 2022

Rajendra Singh ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Ashok Khare (Sr. Adv.), Sri Ramanuj
Yadav

Counsel for the Respondents:
Sri Syed Ali Murtaza, A.G.A., Sri Ankit Gaur,
S.C.

A. Service Law - Post of Constable -
Selection
-
Acquittal
-
Criminal
proceeding u/s 376 IPC was initiated
against the petitioner after his selection -
Prosecutrix
admitted
that
she
made
wrong St.ment under pressure of her
brother and S.H.O. - Appointment claimed
in view of acquittal - Writ petition
dismissed with the opinion that acquittal
was not honourable - Validity challenged
- Held, the appellant was not acquitted
giving him the benefit of doubt. Rather,
the acquittal of the appellant was on
account of failure of the prosecution to
prove its case as the prosecutrix herself
had denied any incident - Avtar Singh's
case relied upon - Direction for fresh
consideration of the appellant's case
regarding
his
appointment
and
entitlement of service benefits was issued
- High Court also issued show cause
notice against the prosecutrix and her
father and brother for getting a false
criminal case registered. (Para 5, 8, 9, 11,
12 and 14)
Special appeal allowed. (E-1)
List of Cases cited:

1. Avtar Singh Vs U.O.I.& ors., (2016) 8 SCC
471
(Delivered by Hon'ble Rajesh Bindal, C.J.
&
Hon'ble J.J. Munir, J.)

1. Order dated July 26, 2022 passed
by learned Single Judge has been impugned
by filing present intra-Court appeal.

2. The appellant was before this Court
impugning order dated November 21, 2020
passed by the Superintendent of Police,
Jalaun whereby the representation filed by
him was dismissed. It is a case in which the
appellant was selected to the post of
Constable vide selection list dated May 15,
2018. He received call letter dated June 9,
2018 for medical checkup and completion
of other formalities. In terms thereof, the
appellant was to appear for medical
examination on June 12, 2018. The
admitted case of the appellant is that
immediately after coming to know about
his selection as a Constable, his enemies in
the village became active and a false First
Information Report (hereinafter referred to
as 'FIR') was registered against him on July
3, 2018 under Section 354A(1)(iv) of IPC.
The allegation in the FIR is that the present
appellant namely, the accused named in the
FIR, has enticed the prosecutrix inside his
house and used certain obscene words.
Even in the statement got recorded by the
prosecutrix under Section 161 Cr.P.C., she
reiterated the stand taken in the complaint
made to the police, on the basis of which
FIR was registered. Thereafter, statement
of the prosecutrix was recorded under
Section 164 Cr.P.C. wherein she improved
from the version as contained in the FIR
and it was added that she was molested and
she was ravished with use of force by the