# Vibha Yadav v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 41
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-01
- **Case number:** Writ-A No. 7181 of 2022
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vibha-yadav-v-state-of-u-p-ors-47734
- **Pages:** 5

## Headnote

42 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C.

A. Service Law - Selection/Appointment -
Uttar
Pradesh
Sub-Inspector
and
Inspector (Civil Police) Service Rules,
2015: Rule 15(f) - The post which has to
be filled up by way of compassionate
appointment cannot be kept vacant if
there is a deserving candidate. No purpose
would be served to keep the post vacant in a
case where there are number of candidates who
scored same marks. (Para 10, 12)

The very purpose of providing facility for
compassionate
appointment
is
that
the
dependents of the deceased employee are
provided an immediate relief as the main bread
earner of their family is no more. In present
case, the petitioner has secured the same marks
as those of last three selected candidates in the
list of 183 which has been prepared on the basis
of merit, i.e. written examination etc. Learned
Standing Counsel also could not demonstrate as
to what purpose would be served to keep a post
vacant which is earmarked to be filled by way of
compassionate appointment if there is a
candidate available who has secured the same
marks in the written examination as those three
last candidates in the select list. (Para 11, 12)

The writ petition is disposed of with a direction
to UP Police Recruitment & Promotion Board
(respondent No. 3) to consider the case of the
petitioner for appointment on compassionate
ground on the post of Sub Inspector of Civil
Police along with other five candidates who
have secured the identical marks against one
post lying vacant due to withdrawal of one
selected candidate, in accordance with law...
(Para 13)

Writ petition disposed off. (E-4)

Precedent followed:

## Text

10 All. Vibha Yadav Vs. State of U.P. & Ors.
41
in law insofar as thereby the statutory rules
were sought to be superseded. A circular
letter furthermore is not a statutory
instrument. It was not even issued by the
State in exercise of the power under Article
162 of the Constitution of India. Even a
scheme issued under Article 162 of the
Constitution of India, would not prevail
over statutory rules. In the case of
Mahadeo Bhau Khilare (Supra), the
Court has observed that any scheme by way
of an executive instruction in terms of
Article 162 of the Constitution of India, if
violative of such statutory rules, would not
be legally sustainable. Similarly, in the case
of Sandur Micro Circuits Limited
(Supra), it has been held that a circular
cannot take away the effect of notifications
statutorily issued.

27. On overall consideration of facts
and circumstances of the case and law
reports cited by learned counsel for the
parties, the arguments advanced by learned
Additional C.S.C. are not found acceptable
in view of the fact that the sanction granted
with rider has adversely affected the
employees of the colleges. Once the posts
have been sanctioned, the rider imposed
under
the
Government
Order
dated
31.08.1999 and 22.03.2001 are erroneous
in nature and contrary to the statutory
provisions of law provided under Section
60-E of U.P. State Universities Act, 1973
and the liability for payment of salary lies
upon the State Government.

28. In view of reasons recorded
above, the condition incorporated in
Government Order dated 31.08.1999 and
the consequent order dated 22.03.2001, by
which the rider has been imposed in
payment of salary to teachers and other
employees against 64 sanctioned posts in
D.A.V.
College,
Kanpur
and D.B.S.
College,
Kanpur
are
not
found
in
consonance
with
Article
162
of
Constitution of India, therefore, are liable
to be quashed.

29. The writ petitions succeed and are
allowed.

30. The condition incorporated in
Government Order dated 31.08.1999 so far
as it imposes the rider in payment of salary
to teachers and other employees against 64
sanctioned
posts
in
D.A.V.
College,
Kanpur and D.B.S. College, Kanpur and
the consequent order dated 22.03.2001, are
hereby quashed.

31. The respondents are directed to
make payment of regular monthly salary
month by month to the petitioners in as
much as arrears of salary from the date of
their joining in the respective institutions.
The aforesaid exercise shall be completed
within a period of three months from the
date of production of a certified copy of
this order.
----------
(2022) 10 ILRA 41
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2022

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ-A No. 7181 of 2022

Vibha Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Himanshu Singh,
Sri Ashok Khare (Senior Counsel)

Counsel for the Respondents:
42 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C.

A. Service Law - Selection/Appointment -
Uttar
Pradesh
Sub-Inspector
and
Inspector (Civil Police) Service Rules,
2015: Rule 15(f) - The post which has to
be filled up by way of compassionate
appointment cannot be kept vacant if
there is a deserving candidate. No purpose
would be served to keep the post vacant in a
case where there are number of candidates who
scored same marks. (Para 10, 12)

The very purpose of providing facility for
compassionate
appointment
is
that
the
dependents of the deceased employee are
provided an immediate relief as the main bread
earner of their family is no more. In present
case, the petitioner has secured the same marks
as those of last three selected candidates in the
list of 183 which has been prepared on the basis
of merit, i.e. written examination etc. Learned
Standing Counsel also could not demonstrate as
to what purpose would be served to keep a post
vacant which is earmarked to be filled by way of
compassionate appointment if there is a
candidate available who has secured the same
marks in the written examination as those three
last candidates in the select list. (Para 11, 12)

The writ petition is disposed of with a direction
to UP Police Recruitment & Promotion Board
(respondent No. 3) to consider the case of the
petitioner for appointment on compassionate
ground on the post of Sub Inspector of Civil
Police along with other five candidates who
have secured the identical marks against one
post lying vacant due to withdrawal of one
selected candidate, in accordance with law...
(Para 13)

Writ petition disposed off. (E-4)

Precedent followed:

1. State of U.P. & ors. Vs Vatsyayan Shukla &
anr., Special Appeal Defective No. 452 of 2020
(Para 9)

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard Mr. Siddharth Khare,
learned Senior Advocate for the petitioner
and learned Standing Counsel for the State.

2. By means of this writ petition, the
petitioner has prayed for a direction to
respondents to grant appointment on the
post of Sub Inspector in Civil Police on the
basis of select list published on 12.11.2021
against the post remaining vacant on
account of non-joining of Atul Kumar son
of Surendra Singh within a stipulated
period of time, with a further direction to
respondents to permit the petitioner to
function as Sub Inspector in Civil Police
and pay her regular monthly salary of the
said post.

3. Learned counsel for the petitioner
submits that the petitioner applied for the
post of Sub Inspector of Civil Police in
2020 against 183 posts under Uttar Pradesh
Sub-Inspector and Inspector (Civil Police)
Service Rules, 2015 (in short 2015 Rules).
Subsequently,
it
transpired
that
the
candidates in excess of 183 posts have
qualified the physical efficiency test and
therefore, even though, they have qualified
physical
efficiency
test,
a
written
examination was notified as per the
Government Order dated 18.9.2015, read
with Rule 5(i) of 2015 Rules.

4. Admit cards were issued. The
petitioner
participated
in
the
written
examination. Result of the aforesaid
examination was declared on 12.11.2021.

5. The select list was published in two
parts. The first part of the list includes the
names of 183 candidates selected for
appointment. The second part of the select
list comprises of 79 such candidates who
have not been selected. It is submitted that
in the non-selected candidates, name of the
10 All. Vibha Yadav Vs. State of U.P. & Ors.
43
petitioner figures at Serial No.1. In the
remark column against her name, it is
mentioned as not selected in Tie-breaker.

6. It is further submitted that a total of
nine candidates, viz Mahesh Mishra,
Chakravarti Vishal Maurya, Vikash Kumar
Dube, Vivek Kumar Bharti, Vivek Kumar
Singh, Vibha Yadav (the petitioner), Sahiba
Ali, Amod Kumar and Vipin Kumar
secured same marks, i.e. 171.0692. Out of
nine candidates, first three were selected
against 183 posts in List-1. The name of the
petitioner who has also secured the same
marks in the tie breaker figures at Serial
No.1 in the left out candidates. It is
submitted
that
tie
breaker
test
was
conducted
in
accordance
with
Note
provided under Rule 15 (f) of Rules of
2015 which is extracted below :

"NOTE- If two or more than two
candidates obtain equal marks then their
seniority shall be decided by the procedure
laid in following order

(1) If two or more candidates
obtain equal marks then such candidate will
be
given
preference
who
possesses
preferential qualification, if any (in the
same order as stated in Rule 9). Candidate
having
more
than
one
preferential
qualification shall get the benefit of only
one preferential qualification.

(2) Even then if two or more
candidates have equal marks then candidate
older in age shall be given preference.

(3) If despite the aforementioned
more than one candidates are equal, then
preference to such candidate shall be
determined according to the order in
English
Alphabets
of
their
names
mentioned in High School Certificate. "

7. It is further submitted that one Atul
Kumar son of Surendra Singh and whose
name figures at Serial No.67 in the first list
has relinquished his claim by filing an
affidavit to the extent that he is not desirous
of joining of service and does not claim
appointment. A communication in this
regard has been sent by the Superintendent
of Police, Karmic dated 31.3.2022 which is
annexed as Annexure No.5 to the petition.
It is thus submitted that appointment on one
post remains unfilled on account of refusal
of Atul Kumar.

8. The written examination and the
entire selection process has already been
completed. The petitioner has also secured
similar marks as other candidates selected
at Serial Nos. 181, 182 and 183. In the so
called waiting list (second list), the name of
the petitioner finds place at serial No.1. It is
further submitted that since it is a
compassionate appointment against 5% of
vacant posts to be filled by direct
recruitment as against the vacancies arising
in the previously sanctioned posts of Sub
Inspector of Police, as provided in Rule 5(i)
of 2015 Rules, carry forward rule for the
vacant posts does not apply in this case.
Rule 5(i) of 2015 Rules is extracted below :

"5. Recruitment to the various
categories of post in the service shall be
made from the following sources :

(1) Sub Inspector

(i)
Fifty
percent
by
direct
recruitment through the Board.

Note : Dependents of personnel
of police department deceased during
service who apply for the post of Sub
Inspector of police in the dependents of
deceased category shall be recruited by the
Board as per the policy decided by the
Government. Restriction being that every
year such posts shall not be more than five
per cent of the posts to be filled by direct
recruitment as against the vacancies arising
44 INDIAN LAW REPORTS ALLAHABAD SERIES
in the previously sanctioned posts of Sub
Inspector of Police.

9. Learned Standing Counsel has
opposed the petition and has submitted that
admittedly, the petitioner has not been
selected in the first list and therefore, she
has
no
claim
to
be
appointed
on
compassionate ground. In support of his
contention,
learned
counsel
for
the
petitioner has relied on judgment dated
8.2.2021 passed by a Division Bench of
this Court in Special Appeal Defective
No.452 of 2020 State of UP. and others
versus Vatsyayan Shukla and another.
Relevant part of the judgment is extracted
below :

"We have considered the rival
submissions and find case in hand to be
peculiar. It is in view of the fact that on the
cut off marks of open category, there were
73 candidates out of which 21 were given
appointments based on the age as none of
them were having preferential qualification.
If we strictly go as per rules 15 (4), there is
no illegality in the action of the appellant,
as the result was declared to the size of
vacancy. The fact however remains that out
of the total candidates offered appointment
based on the list sent to the department, 81
open category candidates did not join the
post. In absence of waiting list, the
candidates scored same marks could have
been given appointment as for that list of
candidates next in the merit was not
required to be called. It is considered to be
calling of name from wait list. There would
be no purpose to keep post vacant in a case
where there are number of candidates
scored same marks. It is not a case where
the department was not having the list of
the
candidates
who
can be
offered
appointment which otherwise remain in the
shape of waiting list and to be called. In
fact the list of candidates obtained same
marks was lying with the State thus State
was not required to indulge in the exercise
to call for the name of the candidates below
the cut off."

10. The judgment provides that no
purpose would be served to keep the post
vacant in a case where there are number of
candidates who scored same marks.

11. Learned Standing Counsel could
not demonstrate as to what purpose would
be served to keep a post vacant which is
earmarked to be filled by way of
compassionate appointment if there is a
candidate available who has secured the
same marks in the written examination as
those three last candidates in the select list.

12. On due consideration to the
argument advanced by learned counsel for
the petitioner, perusal of the record as also
judgment quoted above, I am of the view
that the contention of the State that the
petitioner has no claim on the vacant post
to be appointed on compassionate ground is
mis-conceived.
The
very
purpose
of
providing
facility
for
compassionate
appointment is that the dependents of the
deceased
employee
are
provided
an
immediate relief as the main bread earner
of their family is no more. The post which
has to be filled up by way of compassionate
appointment cannot be kept vacant if there
is a deserving candidate. In this case, the
petitioner has secured the same marks as
those of last three selected candidates in the
list of 183 which has been prepared on the
basis of merit, i.e. written examination etc.

13. In view of the above, the writ
petition is disposed of with a direction to
respondent No.3 to consider the case of the
petitioner
for
appointment
on
10 All. Umesh Pratap Singh Vs. State of U.P. & Ors.
45
compassionate ground on the post of Sub
Inspector of Civil Police along with other
five candidates who have secured the
identical marks against one post lying
vacant due to withdrawal of one selected
candidate Atul Kumar, in accordance with
law, within a period of three months from
the date of production of a certified copy of
this order.

14. Needless to say that while
considering such claim of the petitioner, the
competent authority shall take note of that
the petitioner is placed at Serial No.1 in the
second list of 79 candidates and she is also
older in age than five candidates who have
secured equal marks as the petitioner, in the
light of Note provided under Rule 15.
----------
(2022) 10 ILRA 45
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 7917 of 2022

Umesh Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ms. Atipriya Gautam, Sri Devesh Mishra, Sri
Rishabh Kesarwani, Sri Vijay Gautam (Sr.
Advocate)

Counsel for the Respondents:
C.S.C.

A. Service Law - Promotion - Mere
pendency of a criminal case, prima-facie,
cannot be taken as a ground to deny
promotion.
The
Competent
Authority
cannot withhold the claim indefinitely on
the ground of having adopted Sealed
Cover Procedure, due to the pendency of
criminal case. (Para 12)

Facts of the case are undisputed. Petitioner was
appointed on the post of Sub-Inspector in Civil
Police Department in the year 1990 and
chargesheet was submitted against him in the
year 1999. Thereafter, he was promoted on the
post of Inspector in the year 2006 and first DPC
for promotion on the post of DSP was also held
on 01.01.2018, in which name of petitioner was
considered, but due to pendency of criminal
proceeding, his name was kept in a sealed cover
envelop and juniors to him have been granted
promotion. Further, as per comments of ADGP,
Administration
dated
20.08.2020,
several
excellent entries were given to the petitioner in
last ten years of his service coupled with this
fact that no punishment, either minor or major
was awarded to the petitioner and after
promotion, he has never misused his post in any
way. (Para 10, 12)

Mere pendency of a criminal case coupled with
this fact that petitioner has been permitted to
continue in service and also granted promotion,
cannot be a ground for denying promotion.
Further, additional fact may be taken into
consideration i.e. subsequent service record of
petitioner while opening the sealed cover
envelop and in case subsequent service record
of petitioner is found excellent, unblemished,
without any punishment, the same should have
been an additional ground to grant him
promotion. (Para 13)

Impugned order dated 12.8.2021 is contrary to
the provisions of GOs dated 28.05.1997 &
09.01.2018 as well as law laid down by this
Court in the matter of Neeraj Kumar Pandey
(infra), which is not sustainable and hereby set
aside.

Writ petition allowed. (E-4)

Precedent followed:

1. Neeraj Kumar Pandey Vs The St. of U.P. &
ors. (Writ-A No. 8151 of 2022) (Para 7)

Present
petition
assails
order
dated
12.08.2021,
passed
by
Addl.