# Vijay Shankar Yadav v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1171
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-28
- **Case number:** Civil Misc. Writ Petition No. 73255 of 2011
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-shankar-yadav-v-state-of-u-p-ors-43118
- **Pages:** 6

## Headnote

Police) Service Rules 2008-Rule 15(e)-
Appendix-2-Constitution
of
Selection
Committee-contrary
to
Rule-entire
selection
vitiated
objection
regarding
participation in selection without protestbeing unsuccessful-can not challenge-not
available-behind the back of selected
candidate-cancellation
of
selectionconfined with respect of petitioner-with
consequential-direction-petition
allowed
with cost of Rs. 2000/-.

Held: Para-22 & 23

## Text

3 All]. Vijay Shankar Yadav Vs. State of U.P. & Ors.
1171

10. This petition is consequently
allowed and a writ of mandamus is issued
directing the Engineer in Chief, Irrigation
Department Lucknow to release the payment
within a week from today along with interest
at the rate of 10% per annum, failing which it
would be open to the petitioner to move an
appropriate application before this Court for
recovery of the amount.

11. Since a clear case is made out
where the respondents are responsible, the
court hereby imposes a cost of Rs.
50,000/- which shall also be paid by the
Engineer in Chief. Rs. 25,000/- shall be
paid to the petitioner and balance Rs.
25,000/- shall be paid to the High Court
Legal Services Cell Committee.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 73255 of 2011
Alongwith W.P. No. 49356 of 2011, W.P. No.
60376 of 2011, W.P. No. 11341 of 2012, W.P.
NO. 11343 of 2012W.P. No. 71329 of 2011

Vijay Shankar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare, Sri
Nisheeth Yadav

Counsel for the Respondents:
C.S.C.

U.P. Sub Inspectors and Inspector(Civil
Police) Service Rules 2008-Rule 15(e)-
Appendix-2-Constitution
of
Selection
Committee-contrary
to
Rule-entire
selection
vitiated
objection
regarding
participation in selection without protestbeing unsuccessful-can not challenge-not
available-behind the back of selected
candidate-cancellation
of
selectionconfined with respect of petitioner-with
consequential-direction-petition
allowed
with cost of Rs. 2000/-.

Held: Para-22 & 23
22. This submission is also thoroughly
misconceived.
Here is a case
where
respondents
have
conducted
selection
through a Selection Committee which is
patently illegal, having not been constituted
in accordance with rules. There cannot be
any estoppel against law. When something
has been done by a body, not legally
constituted, such action would be void ab
initio. In such a case, principle that once
you have participated in the selection, you
cannot challenge rules of the game will not
apply for the reason that, here, petitioners
are not challenging rules of the game, but
their grievance is that rules say something
while respondents have played the game in
complete defiance thereof and therefore,
their action is illegal and void ab initio.

23. In my view, since petitioners have
not been tested for physical efficiency
test/physical
standard
test,
by
a
Committee,
validly
constituted,
in
accordance with rules, their rejection by
an unauthorised and illegally constituted
committee is patently illegal.

Case Law discussed:
JT 2013 (11) SC 408; AIR 1936 PC 253; 2001
(4) SCC 9; 2002(1) SCC 633; 2004 (6) SCC
440; 2005(13) SCC 477; 2005(1) SCC 368;
2008(2) ESC 1220.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Ashok Khare, Senior
Advocte, assisted by Sri Siddharth Khare,
learned counsel for the petitioners and
learned
Standing
Counsel
for
the
respondents.

2. In all these writ petitions, common
questions of law are involved and therefore,
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
they have been heard together and are being
decided
by
this
common
judgment.
However, for the purpose of brevity, facts
and pleadings from Writ Petition No.73255
of 2011 have been taken and counsel for the
parties in other matters stated at the bar that
facts in all other matters are more or less
similar and issue in fact is the same,
therefore, whatever is said in respect of the
leading writ petition, that would equally
apply to other matters and, hence, I proceed
accordingly.

3. The result of physical efficiency test
declaring
petitioners
unqualified,
and,
communicated by order dated 2.11.2011 of
Deputy
Superintendent
of
Police,
Establishment on behalf of Deputy Inspector
General of Police, (Establishment) U.P., has
been challenged in this writ petition on
various grounds. It is said that appropriate
electronic gadget was not attached to the legs
of candidates which would have recorded the
number of rounds completed by a candidate
correctly and instead rounds were sought to be
counted by a few persons present though
number of candidates running was quite large.
A more serious issue has been raised
regarding constitution of Selection Committee
and it is said that Selection Committee was
not constituted as per the rule 15(e) read with
Appendix 2 of U.P. Sub-Inspector and
Inspector (Civil Police) Service Rules, 2008
(hereinafter referred to as "Rules, 2008") and
petitioners have been examined by a body,
which was not lawfully constituted. It is
argued that Selection Committee, who
conducted
"Physical
Efficiency
Test"
consisted of Sri Ashutosh Pandey, Deputy
Inspector General of Police, Special Inquirey,
U.P. Lucknow as Chairman, Sri D.C. Mishra,
Commandant,
35th
Battalion,
P.A.C.,
Lucknow and as Members, Smt. Geeta,
Additional
Superintendent
of
Police,
C.B.C.I.D., U.P. Lucknow, Sri Shahab
Rasheed Khan, Addl. Superintendent of
Police, S.T.F., U.P. Lucknow and Sri Ram
Badan Singh, Assistant Commandant, 35
Battalion, P.A.C., U.P., Lucknow, which is
not as per the requirement of the rules.

4. 248 male and 48 female
candidates were called for participation in
Physical
Efficiency
Test
between
25.7.2011 to 27.7.2011. 30 male and 48
female candidates were to participate on
25.7.2011, 168 male candidates in four
batches were required to participate in the
above test on 26.7.2011 and 50 male
candidates, in two batches, were to
participate on 27.7.2011.

5. It is worthy to notice that above
Physical Efficiency Test was specially
convened
for
making
compassionate
appointments on the post of Sub Inspector and
all the petitioners, in the writ petitions, are
candidates
seeking
compassionate
appointment on the post of Sub-Inspector,
who have been found unsuccessful in physical
efficiency test having not completed requisite
distance of running in the prescribed time.

6. Sri Ashok Khare, learned counsel
for the petitioners drew attention of this
Court to Appendix-2 read with Rule 15(e)
of Rules, 2008 and contended that for
conducting physical efficiency test for
direct recruitment with reference to rule
15(e), three members team is required to
be constituted comprising of following:

1. Sub Divisional Magistrate/Deputy
Collector ;

2. Doctor/Sports Officer/National
Cadet Corps, Officer;

3. Deputy Superintendent of Police.

7. He also pointed out that for
physical standard test/physical efficiency
3 All]. Vijay Shankar Yadav Vs. State of U.P. & Ors.
1173
test under Rule 15(c), the Committee,
which
is
to
be
constituted
under
Appendix-1, is also a three members team
with the
same
composition,
as
is
contemplated
in
Appendix-2
with
reference to Physical Efficiency Test
under Rule 15(e). In the present case,
since the team, which has conducted the
test in question, is not the one as provided
in the Rules, the physical efficiency
test/physical standard test is illegal. Since
the test has been conducted by a
Committee constituted de hors the rules, it
is no test in the eyes of law and deserves
to be quashed, Sri Khare pleaded.

8. The respondents have contested the
writ petition by filing counter affidavit in
which applicability of Rules, 2008 is not
disputed. In para 6, it is said that in order to
claim appointment on the post of SubInspector, candidates must satisfy physical
standard of completion of 10 kilometers runs
in 60 minutes (for male) and 5 kilometers in
35 minutes (for female). The scope of any
mistake in manual counting of completed
rounds has been denied in para 7. It is urged
that Selection Committee, headed by Sri
Ashutosh Pandey, examined petitioners and
once they have failed in physical standard test,
no further opportunity can be given to them
and, instead, they may apply for any other
post. It is argued that no candidate seeking
compassionate appointment has a right to
claim appointment against a particular post.
The respondents have also relied on the
decision in State of U.P. & Ors. Vs. Pankaj
Kumar Vishnoi, JT 2013(11) SC 408.

9. Having gone through the decision
cited at the Bar by learned Standing Counsel
in State of U.P. & Ors. Vs. Pankaj Kumar
Vishnoi (supra), I find that it has no
application in the case in hand. Therein,
physical test was conducted from 27.6.2005 to
29.6.2005 for the post of Sub-Inspector (Civil
Police), wherein petitioner participated but
returned unsuccessful. Challenging his non
selection, he preferred Writ Petition No.63596
of 2006 with a prayer that he should be
allowed compassionate appointment on the
post of Sub-Inspector (Civil Police) but did
not disclose in the writ petition that he was
already subjected to physical test for
appointment on the said post but failed. The
writ petition was dismissed by learned Single
Judge vide judgment dated 23.11.2006 on the
ground that earlier writ petition with the same
prayer was filed and was dismissed as
withdrawn without any liberty to file
another writ petition, therefore, second
writ petition was not maintainable for the
same relief and second prayer that he
should be offered post of Sub-Inspector
(Civil Police) without subjecting him to
undergo
physical
efficiency
test
is
misconceived. This judgment of learned
Single Judge was assailed in intra Court
appeal i.e. Special Appeal No.1602 of
2006 under Chapter VIII, Rule 5 of the
Rules of the Court, which was allowed by
Division Bench and judgment of learned
Single Judge was set aside. The Division
Bench observed that dismissal of earlier
petition would not come in the way of
second petition since with the passage of
time, the petitioner may have become
more fit or may be unfit. The Court,
therefore, directed the State to test Pankaj
Kumar Vishnoi again. It is this judgment of
Division Bench, which was taken in appeal by
State. The Apex Court has reversed Division
Bench
judgment
observing
that
compassionate appointment is not a matter of
right. If applicant does not conform to the
physical efficiency required under the rules or
as decided by appointing authority, such
applicant cannot claim appointment on
compassionate basis as a matter of right
ignoring such efficiency or suitability test as
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
prescribed. The Court further held that in
the present case petitioner Pankaj Kumar
Vishnoi was already subjected to test for
appointment on the post of Sub-Inspector
(Civil Police) but he did not qualify and in
these circumstances, High Court was not
justified to direct Department to give him
another opportunity only on the ground
that there has been efflux of time. The
Court said:

"The respondent being disqualified
in the physical test could not have
claimed as a matter of right and demand
for an appointment in respect of a
particular post and the High Court could
not have granted further opportunity after
the crisis was over."

10. Here, petitioners-candidates are
not claiming any second opportunity but
they have challenged the test, already
conducted by respondents, on the ground
that it has been conducted by a Selection
Committee, which was not constituted in
accordance with rules and have tried to
buttressed their argument by observing
that an illegally constituted Committee
having all the department officials as
Chairman and Members has subjected the
petitioners to test in a biased atmosphere.
The submission is that in any case when
selection has not been made strictly in
accordance with rules, it is illegal and
void ab initio and mere fact that
petitioners have appeared in such test
would not validate an otherwise illegal
selection.

11. Thus, proposition in general that
no
candidate
seeking
compassionate
appointment has a right to claim such
appointment against a particular post,
raised by respondents in the counter
affidavit, is well established but in the
present set of writ petitions, it has no
application at all.

12. The question up for consideration
in these writ petitions is, whether physical
efficiency test conducted in the case in hand
has been done in accordance with statutory
rules, which learned Standing Counsel also
admits are applicable and binding.

13. Selection Committee, which has
to conduct test, is a statutory body. It
cannot be altered, changed, modified or
substituted by a committee of a different
constitution and composition at the whims
of employer i.e. Government. The kind of
composition of Committee provided in
the rules shows that rule framing authority
contemplates that Selection Committee
must consist of officials not only from
Police
department
but
from
other
departments also so that there may be
lessor scope of any plea of bias etc. The
scope
of
independent
objective
consideration by members of Selection
Committee from different departments
would be more emphatic and the reason
as to why aforesaid Selection Committee
did not hold Physical Efficiency Test in
the case in hand has not been explained.

14. Learned Standing Counsel, when
confronted with Rules, 2008 could not
dispute that Committee, which conducted
Physical Efficiency Test in the case in hand
is
entirely
different
than
what
is
contemplated in the Rules. It is not a case
where petitioners are claiming any relaxation
or concession in respect of application of
statutory rules but what they are contending
is, "when something is required to be done in
a particular manner, respondents cannot
proceed to do the same in any other manner"
as that would be illegal. They are bound and
obliged to follow rules, strictly, in words and
3 All]. Vijay Shankar Yadav Vs. State of U.P. & Ors.
1175
spirit. Any deviation therefrom would vitiate
their action. The principle was recognized in
Nazir Ahmad Vs. King-Emperor AIR 1936
PC 253 and, thereafter, it has been reiterated
and followed consistently by Apex Court in a
catena of judgements, which I do not propose
to refer all but would like to refer a few
recent one.

15. In Dhananjaya Reddy Vs. State
of Karnataka 2001 (4) SCC 9 in para 23
of the judgment the Court held :

"It is a settled principle of law that
where a power is given to do a certain
thing in a certain manner, the thing must
be done in that way or not at all."

16. In Commissioner of Income Tax,
Mumbai Vs. Anjum M.H. Ghaswala 2002
(1) SCC 633, it was held :

"It is a normal rule of construction that
when a statute vests certain power in an
authority to be exercised in a particular
manner then the said authority has to
exercise it only in the manner provided in the
statute itself."

17. The judgments in Anjum M.H.
Ghaswala (supra) and Dhananjaya Reddy
(supra)
laying
down
the
aforesaid
principle have been followed in Captain
Sube Singh & others Vs. Lt. Governor of
Delhi & others 2004 (6) SCC 440.

18. In Competent Authority Vs.
Barangore Jute Factory & others 2005
(13) SCC 477, it was held :

"It is settled law that where a statute
requires a particular act to be done in a
particular manner, the act has to be done
in that manner alone. Every word of the
statute has to be given its due meaning."

19. In State of Jharkhand & others Vs.
Ambay Cements & another 2005 (1) SCC
368 in para 26 of the judgment, the Court held
:

"It
is
the
cardinal
rule
of
interpretation
that
where
a
statute
provides that a particular thing should be
done, it should be done in the manner
prescribed and not in any other way."

20. In fact a similar question was
considered by Division Bench of this Court
[in which I was also a member with Hon'ble
S.R. Alam, J., (as His Lordship then was)] in
Daya Shankar Singh Vs. State of U.P. and
others, 2008(2) ESC 1220 and this Court has
observed:

"A modification, amendment etc.,
therefore, is permissible by exercising the
power in the like manner and subject to
like sanction and conditions in which the
main provision was made initially. Since,
Staff Regulations were framed admittedly
with the previous sanction of the State
Government and by publication in the
official Gazette, same can be amended
only following the same procedure and
not
otherwise.
Therefore,
the
proposal/resolution passed by the Board
of Directors, UPSWC by no stretch of
imagination can be said to have the effect
of either amending Regulation 12 of Staff
Regulations or to bind UPSWC and its
employees to be governed by such
resolution/proposal which are inconsistent
with the existing provisions contained in
Staff Regulations."

21. Learned Standing Counsel
feebly sought to argue that petitioners
having participated in the selection before
the Committee constituted by respondents
cannot
be
allowed to
subsequently
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
challenge
the
very
constitution
of
Committee and therefore, this Court
should decline to interfere.

22. This submission is also
thoroughly misconceived. Here is a case
where
respondents
have
conducted
selection through a Selection Committee
which is patently illegal, having not been
constituted in accordance with rules.
There cannot be any estoppel against law.
When something has been done by a
body, not legally constituted, such action
would be void ab initio. In such a case,
principle that once you have participated
in the selection, you cannot challenge
rules of the game will not apply for the
reason that, here, petitioners are not
challenging rules of the game, but their
grievance is that rules say something
while respondents have played the game
in
complete
defiance
thereof
and
therefore, their action is illegal and void
ab initio.

23. In my view, since petitioners
have not been tested for physical
efficiency test/physical standard test, by a
Committee,
validly
constituted,
in
accordance with rules, their rejection by
an unauthorised and illegally constituted
committee is patently illegal.

24. The view, this Court is taking
with respect to aforesaid selection, is
bound to render entire selection and result
declared by the aforesaid committee,
illegal. However, candidates, who have
been declared successful are not party
before this Court. It is stated at the bar
that most of those candidates may have
already been appointed in service. In their
absence,
therefore,
it
will
not
be
appropriate for this Court to pass an order
affecting their interest adversely. In these
facts and circumstances I am confining
consequence of this judgment only to the
extent of result of present petitioners and
make it clear that declaration of result of
petitioners only would stand set aside.
The petitioners shall be allowed Physical
Efficiency Test, afresh, in accordance
with rules, through a team consisting of
members as provided in Rules, 2008. The
respondents shall proceed accordingly.
This
exercise
shall
be
completed
expeditiously and in any case, within
three
months
from
the
date
of
communication of this judgment.

25. The writ petitions are allowed, in
the manner, as aforesaid.

26. The petitioners shall also be
entitled to cost, which I quantify to
Rs.2000/- for each set of writ petitions.
--------