# Vishal Saraswat v. State of U.P. & Anr

- **Citation:** (2024) 11 ILRA 592
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-22
- **Case number:** Writ A No. 5252 of 2024
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishal-saraswat-v-state-of-u-p-anr-51112
- **Pages:** 8

## Headnote

A. Service Law - Pendency of criminal
proceedings - If in a criminal case the
incumbent has not been acquitted and the
case is pending trial, employer may well
be justified in not appointing such an
incumbent or in terminating his services
as conviction ultimately may render him
unsuitable for job and the employer is not
supposed to wait till outcome of the
criminal case. The decision has to be taken
by the employer after considering that a
11 All. Vishal Saraswat Vs. State of U.P. & Anr.
593
higher post would involve more rigorous
criteria. (Para 8)

The petitioner has been charged and put on trial
in Case Crime No. 731 of 2017 registered u/Ss
498-A/323/324/504/506 of the Indian Penal
Code r/w Section 3/4 of the Dowry Prohibition
Act, 1961. The said case is still pending. The
petitioner is already a member of the Indian
Defence Estates Service (Group 'A' Gazetted
Post) which is a Central Government Service.
The
petitioner
has
been
selected
for
appointment
in
Provincial
Civil
Services
(Executive) in the State of Uttar Pradesh in the
examinations held in Combined State & Upper
Subordinate Service Examination-2019. In his
verification
form,
the
petitioner
truthfully
disclosed the details of the criminal case
pending against him. It be noted that the
criminal case was pending against the petitioner
on the date the vacancies were notified by the
Uttar Pradesh Public Service Commission. (Para
7)

B. Judicial review is permissible only to
ensure that the norms prescribed for
appointment are fair and reasonable and
applied fairly in a non-discriminatory
manner but the autonomy or choice of
the public employer is greatest as long
as the process of decision-making is
neither illegal, unfair or lacking in bona
fides. Courts exercising the power of judicial
review cannot second guess the suitability of
a candidate for any public office or post.
'Absent evidence of malice or mindlessness
(to the materials), or illegality by the public
employer, an intense scrutiny on why a
candidate was excluded as unsuitable renders
the courts' decision suspect to the charge of
trespass into executive power of determining
suitability of an individual for appointment.'
Public service-like any other, presupposes,
that the State employer has an element of
latitude or choice on who should enter its
service. (Para 10)

C. Distinction has to be made between
judicial review and justiciability of a
particular action. Justiciability relates to a
particular field falling within the purview of
the power of judicial review. On account of
want of judicially manageable standards,
there
may
be
matters
which
are
not
susceptible to the judicial process. In other
words, during the course of exercise of the
power of judicial review it may be found that
there are certain aspects of the exercise of
that power which are not susceptible to
judicial process on account of want of
judicially manageable standards and are,
therefore, not justiciable. (Para 12)

D. Two different public employers may
have
different
views
regarding
the
suitability
of
a
candidate
for
appointment and one employer is not
bound by the decision and discretion of
the other employer. (Para 13)

So far as the opinion of the appointing
authority that the post of the Deputy Collector
is more sensitive post than the post currently
held by the petitioner under the Central
Government is concerned, the comparative
assessment of the sensitivities of different
posts lies within the exclusive domain of the
Executive and the correctness of the decision
regarding the sensitivity and importance of
different posts cannot be made on the basis
of any judicially manageable and recognized
standards. The said fact is a non-justiciable
fact preventing this Court from exercising its
power of judicial review. (Para 14)

Writ Petition dismissed. (E-4)

Precedent followed:

## Text

592 INDIAN LAW REPORTS ALLAHABAD SERIES
employer shall arrange to pay the amount
of gratuity within 30 days from the date it
becomes payable, in this case having
become payable on 01.01.2020, which
should have been paid by 01.02.2020.

16. From perusal of Rule 7 of
Rules, 1972 it emerges that Rule 7(1) of
Rules, 1972 provides that an employee who
is eligible for payment of gratuity under the
Act, 1972 where the date of superannuation
or retirement of an employee is known may
apply to the employer before thirty days of
the date of superannuation or retirement.

17. The word used in Rule 7(1) of
the Rules 1972 is "may" meaning thereby
that it is open for the employee to either
apply for payment for gratuity or not. Once
Section 7(2) of Act, 1972 itself stipulates
that irrespective of an employee applying
for gratuity or not the gratuity would
become payable and that the said amount is
to be paid in terms of Section 7(3) of Act,
1972 within thirty day of the same
becoming payable then irrespective of Rule
7 of the Rules, 1972 which gives a
discretion to the employee concerned to
apply for gratuity or not under provisions
of Act, 1972 the gratuity would in fact
become payable and due and thus no
application in this regard would be required
to be submitted by the employee.

18. Keeping in view the aforesaid
discussion as well as considering the
mandatory provisions of Act, 1972 it is thus
apparent that gratuity became payable to
the petitioner on 01.02.2020 and the same
having been in fact paid to the petitioner on
03.11.2020 the petitioner would be entitled
for being paid interest on delayed payment
of gratuity which interest would be payable
as per the provisions of Section 7(3) of Act,
1972.
19. Accordingly, the writ petition
is allowed.

20. The respondent no. 2 i.e. the
Managing
Director,
U.P.
Forest
Corporation, Lucknow is directed to pay
interest as per the rate prescribed under
Section 7(3) of the Act, 1972 for the period
from 01.02.2020 till 03.11.2020.

21. Let the aforesaid amount be
paid within a period of six weeks from the
date of receipt of a certified copy of this
order.
----------
(2024) 11 ILRA 592
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2024

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ A No. 5252 of 2024

Vishal Saraswat ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Mayank

Counsel for the Respondents:
C.S.C., Kalyan Sundram Srivastava, Manoj
Kumar Singh

A. Service Law - Pendency of criminal
proceedings - If in a criminal case the
incumbent has not been acquitted and the
case is pending trial, employer may well
be justified in not appointing such an
incumbent or in terminating his services
as conviction ultimately may render him
unsuitable for job and the employer is not
supposed to wait till outcome of the
criminal case. The decision has to be taken
by the employer after considering that a
11 All. Vishal Saraswat Vs. State of U.P. & Anr.
593
higher post would involve more rigorous
criteria. (Para 8)

The petitioner has been charged and put on trial
in Case Crime No. 731 of 2017 registered u/Ss
498-A/323/324/504/506 of the Indian Penal
Code r/w Section 3/4 of the Dowry Prohibition
Act, 1961. The said case is still pending. The
petitioner is already a member of the Indian
Defence Estates Service (Group 'A' Gazetted
Post) which is a Central Government Service.
The
petitioner
has
been
selected
for
appointment
in
Provincial
Civil
Services
(Executive) in the State of Uttar Pradesh in the
examinations held in Combined State & Upper
Subordinate Service Examination-2019. In his
verification
form,
the
petitioner
truthfully
disclosed the details of the criminal case
pending against him. It be noted that the
criminal case was pending against the petitioner
on the date the vacancies were notified by the
Uttar Pradesh Public Service Commission. (Para
7)

B. Judicial review is permissible only to
ensure that the norms prescribed for
appointment are fair and reasonable and
applied fairly in a non-discriminatory
manner but the autonomy or choice of
the public employer is greatest as long
as the process of decision-making is
neither illegal, unfair or lacking in bona
fides. Courts exercising the power of judicial
review cannot second guess the suitability of
a candidate for any public office or post.
'Absent evidence of malice or mindlessness
(to the materials), or illegality by the public
employer, an intense scrutiny on why a
candidate was excluded as unsuitable renders
the courts' decision suspect to the charge of
trespass into executive power of determining
suitability of an individual for appointment.'
Public service-like any other, presupposes,
that the State employer has an element of
latitude or choice on who should enter its
service. (Para 10)

C. Distinction has to be made between
judicial review and justiciability of a
particular action. Justiciability relates to a
particular field falling within the purview of
the power of judicial review. On account of
want of judicially manageable standards,
there
may
be
matters
which
are
not
susceptible to the judicial process. In other
words, during the course of exercise of the
power of judicial review it may be found that
there are certain aspects of the exercise of
that power which are not susceptible to
judicial process on account of want of
judicially manageable standards and are,
therefore, not justiciable. (Para 12)

D. Two different public employers may
have
different
views
regarding
the
suitability
of
a
candidate
for
appointment and one employer is not
bound by the decision and discretion of
the other employer. (Para 13)

So far as the opinion of the appointing
authority that the post of the Deputy Collector
is more sensitive post than the post currently
held by the petitioner under the Central
Government is concerned, the comparative
assessment of the sensitivities of different
posts lies within the exclusive domain of the
Executive and the correctness of the decision
regarding the sensitivity and importance of
different posts cannot be made on the basis
of any judicially manageable and recognized
standards. The said fact is a non-justiciable
fact preventing this Court from exercising its
power of judicial review. (Para 14)

Writ Petition dismissed. (E-4)

Precedent followed:

1. Joginder Singh Vs Union Territory of
Chandigarh & ors., 2015 (2) SCC 377 (Para 4)

2. Avtar Singh Vs U.O.I. & ors., 2016 (8) SCC
471 (Para 4)

3. Pawan Kumar Vs U.O.I. & anr., (2022) SCC
OnLine SC 532 (Para 4)

4. Satish Chandra Yadav Vs U.O.I. & anr., AIR
Online 2022 SC 332 (Para 5)

5. Avtar Singh Vs U.O.I. & ors., 2016 (8) SCC
471 (Para 8)

6. State of West Bengal & ors. Vs S.K. Nazrul
Islam, (2011) 10 SCC 184 (Para 8)
594 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Anil Bhardwaj Vs Hon'ble High Court of
Madhya Pradesh & ors., (2021) 13 SCC 323
(Para 9)

8. Commissioner of Police Vs Raj Kumar, (2021)
8 SCC 347 (Para 10)

9. Tata Cellular Vs U.O.I., (1994) 6 SCC 651
(Para 11)

10. A.K. Kaul & anr. Vs U.O.I. & anr., (1995) 4
SCC 73 (Para 12)

Present
petition
assails
order
dated
28.02.2024, passed by the Additional
Chief Secretary, Appointment Section-III,
Government of Uttar Pradesh, Lucknow
rejecting the claim of the petitioner for
appointment
on
the
ground
of
the
pendency of criminal case reasoning that
the post of Deputy District Magistrate is
more sensitive than the post at present
held by the petitioner.

(Delivered by Hon'ble Salil Kumar Rai, J.)

1. At the behest of the sister-in-law of
the petitioner, Case Crime No. 731 of 2017
under Sections 498-A / 323 / 324 / 504 /
506 of the Indian Penal Code read with
Section 3/4 of the Dowry Prohibition Act,
1961 was registered against the petitioner
as well as against his elder brother, father,
mother and sister on 26.07.2017 and a
charge-sheet has been submitted by the
Investigating Officer. Charges have been
framed in the said criminal case against all
the accused, including the petitioner, and
the trial of the case is still pending. It has
been stated in the writ petition that the
allegations made in the first information
report are false and the attention of the
Court has been drawn to the fact that the
entire family of the petitioner has been
implicated in the said criminal case.

2. By order dated 21.12.2020 passed
by the Director, Rajya Sabha Secretariat,
the petitioner was granted provisional
appointment
as
Assistant
Legislative
Committee - Protocol / Executive Officer
in the Rajya Sabha Secretariat. The
appointment was subject to the final
decision in the criminal case. The petitioner
was subsequently selected in the Indian
Defence Estates Service (Group 'A'
Gazetted Post) under Directorate General
of Defence Estates, Ministry of Defence
and is presently posted as Chief Executive
Officer,
Roorkee
Cantonment
Board,
Uttarakhand.

3. Meanwhile, the petitioner also
applied in the Combined State & Upper
Subordinate Service Examination, 2019
and was declared successful in the selection
list published on 17.02.2021. The petitioner
secured merit position no. 1 in the
selections and was recommended by the
Commission for appointment as Deputy
Collector in the Provincial Civil Services
(Executive). In his verification / declaration
form, the petitioner disclosed the details of
the criminal case pending against him. It
has been stated in the petition that during
the character verification of the petitioner, a
report was sought by the Special Secretary,
Government of Uttar Pradesh from the
Rajya Sabha Secretariat and the Under
Secretary, Rajya Sabha forwarded an office
memorandum dated 22.06.2021 reporting
that the petitioner was clear from vigilance
angle and that no disciplinary case was
pending against him. Still the petitioner
was not issued an appointment letter by the
State Government, therefore, he made
several
representations
seeking
appointment in Provincial Civil Services
(Executive). By order dated 13.03.2023
passed by the Additional Chief Secretary,
Appointment Section - III, Government of
Uttar
Pradesh,
Lucknow,
the
representations of the petitioner were
11 All. Vishal Saraswat Vs. State of U.P. & Anr.
595
dismissed on the ground that a criminal
case of a serious nature was pending
against the petitioner. The order dated
13.03.2023
was
challenged
by
the
petitioner through Writ - A No. 6206 of
2023 and this Court vide its order dated
11.04.2023
quashed
the
order
dated
13.3.2023 and remitted back the matter to
the State Government for a fresh decision.
The
Additional
Chief
Secretary,
Appointment Section - III, Government of
Uttar Pradesh, Lucknow vide his order
dated 28.02.2024 has again rejected the
claim of the petitioner again on the ground
of the pendency of criminal case reasoning
that the post of Deputy District Magistrate
is more sensitive than the post at present
held by the petitioner. The order dated
28.02.2024 has been challenged in the
present writ petition.

4. It has been argued by the counsel
for the petitioner that the order dated
28.02.2024 is arbitrary and discriminatory
and violates Articles 14 and 16 of the
Constitution of India as it is unreasonable
to deny appointment to the petitioner in
Provincial Civil Services (Executive) on
ground of pendency of criminal case
against him even though the petitioner is in
employment of the Central Government in
a Group - 'A' Service. It was argued that
the opinion expressed in the order dated
28.02.2024 that the post of Deputy District
Magistrate in state of Uttar Pradesh was
more sensitive than the post presently held
by the petitioner is unreasonable. It was
further argued that while passing the
impugned order, the Additional Chief
Secretary has not considered that the
criminal
case
registered
against
the
petitioner arises out of a matrimonial
dispute and implicates the entire family of
the petitioner which by itself shows falsity
of the allegations made in the First
Information Report. It was argued that for
the aforesaid reasons, the order dated
28.02.2024 is liable to be quashed and a
direction is to be issued to the State
respondents to appoint the petitioner in
Provincial Civil Service (Executive) in
state of Uttar Pradesh. In support of his
contentions, the counsel for the petitioner
has relied on the judgments of the Supreme
Court in Joginder Singh vs. Union
Territory of Chandigarh & Ors. 2015 (2)
SCC 377; Avtar Singh vs. Union of India
& Ors. 2016 (8) SCC 471 and Pawan
Kumar vs. Union of India & Anr. (2022)
SCC OnLine SC 532.

5. Rebutting the arguments of the
counsel for the petitioner, the Standing
Counsel
has
argued
that
the
State
Government, while rejecting the claim of
the petitioner, has applied its discretion in
accordance with law. It was argued that the
criminal case pending against the petitioner
is not of trivial nature but involves serious
charges under Section 498-A IPC and
under Section 3/4 of Dowry Prohibition
Act, 1961. It was argued that valid reasons
have been given in the impugned order
dated 28.02.2024 for rejecting the claim of
the petitioner which are not subject to
judicial review by this Court under Article
226 of the Constitution of India. It was
argued that for the aforesaid reasons, the
writ petition lacks merit and is liable to be
dismissed. In support of his contention, the
counsel for the respondents has relied on
the judgment of this Court reported in
Satish Chandra Yadav vs. Union of India
and Anr. AIR Online 2022 SC 332.

6. I have considered the submissions
of the counsel for the parties.

7. The facts of the case are not in
dispute. The petitioner has been charged
596 INDIAN LAW REPORTS ALLAHABAD SERIES
and put on trial in Case Crime No. 731 of
2017 registered under Sections 498-A / 323
/ 324 / 504 / 506 of the Indian Penal Code
read with Section 3/4 of the Dowry
Prohibition Act, 1961. The said case is still
pending. The petitioner is already a
member of the Indian Defence Estates
Service (Group 'A' Gazetted Post) which is
a
Central
Government
Service.
The
petitioner
has
been
selected
for
appointment in Provincial Civil Services
(Executive) in the State of Uttar Pradesh in
the examinations held in Combined State &
Upper Subordinate Service Examination -
2019.
In
his
verification
form,
the
petitioner truthfully disclosed the details of
the criminal case pending against him. It be
noted that the criminal case was pending
against the petitioner on the date the
vacancies were notified by the Uttar
Pradesh Public Service Commission.

8. In Avtar Singh vs. Union of India
& Ors. 2016 (8) SCC 471, the Supreme
Court held that even if the candidate has
truthfully disclosed the details of the
criminal case registered or pending against
him, still, the employer has the right to
consider his fitness for appointment and
while doing so the effect of conviction and
background facts of the case, nature of
offence, nature of the post, etc. have to be
considered. Even if the applicant is
acquitted in the criminal case, the employer
may consider the nature of offence,
whether acquittal is honourable or has been
made by giving benefit of doubt on
technical grounds and the employer may
decline to appoint a person who is unfit or
is of dubious character. The Supreme Court
further held that if in a criminal case the
incumbent has not been acquitted and the
case is pending trial, employer may well
be justified in not appointing such an
incumbent or in terminating his services
as conviction ultimately may render him
unsuitable for job and the employer is not
supposed to wait till outcome of the
criminal case. It was further held by the
Supreme Court that the decision had to be
taken by the employer after considering
that a higher post would involve more
rigorous criteria. In Avtar Singh (supra),
the Supreme Court referred to the judgment
in State of West Bengal & Ors. vs. S.K.
Nazrul Islam (2011) 10 SCC 184 in which
the order of the High Court directing the
employer to issue appointment letter to the
employee, subject to final decision in a
pending criminal case was challenged by
the State Government. The Supreme Court
held that due to pendency of the criminal
case under Sections 148 / 323 / 380 / 427 /
506 IPC, the High Court had committed an
illegality in issuing a direction to appoint as
till the case was pending, the employee
could not have been held suitable for
appointment to the post. In Nazrul Islam
(supra), the Supreme Court observed that
the
authorities
entrusted
with
the
responsibility of appointment were under
duty to verify the antecedents of the
candidate to find out whether he is suitable
for the post and so long as the candidate
had not been acquitted in the criminal case,
he could not possibly be held to be suitable
for appointment to the post.

9. In Anil Bhardwaj vs. Hon'ble High
Court of Madhya Pradesh & Ors. (2021)
13 SCC 323, while considering the order of
the High Court refusing appointment to a
judicial officer on the ground that a
criminal case under Sections 498 / 406 / 34
IPC was pending during the recruitment
process, the Supreme Court held that mere
inclusion in the select list does not give an
indefeasible right to a candidate to be
appointed and the employer has a right to
refuse
appointment
to
the
candidate
11 All. Vishal Saraswat Vs. State of U.P. & Anr.
597
included in the select list on any valid
ground. In Anil Bhardwaj (supra), the
candidate was subsequently acquitted in the
criminal case but even then the Supreme
Court refused to interfere on his behalf on
the ground that the subsequent acquittal
was irrelevant because the applicant was
acquitted after the close of recruitment
process.
The
Supreme
Court
while
considering the scope of judicial review in
such matters held that unless the decision
of the authority was arbitrary or actuated by
mala fide, the decision of the appointing
authority cannot be interfered with by the
Constitutional Courts.

10. Similarly, the Supreme Court in
Commissioner of Police vs. Raj Kumar
(2021) 8 SCC 347 held that courts
exercising the power of judicial review
cannot second guess the suitability of a
candidate for any public office or post.
'Absent evidence of malice or mindlessness
(to the materials), or illegality by the public
employer, an intense scrutiny on why a
candidate was excluded as unsuitable
renders the courts' decision suspect to the
charge of trespass into executive power of
determining suitability of an individual for
appointment.' The Supreme Court observed
that public service - like any other,
presupposes, that the State employer has an
element of latitude or choice on who should
enter its service. It was observed that
judicial review is permissible only to
ensure that the norms prescribed for
appointment are fair and reasonable and
applied fairly in a non-discriminatory
manner but the autonomy or choice of the
public employer is greatest as long as the
process of decision-making is neither
illegal, unfair or lacking in bona fides. The
observations of the Supreme Court in
Paragraphs - 28 and 31 are reproduced
below : -

"28. Courts exercising judicial
review cannot second guess the suitability
of a candidate for any public office or
post. Absent evidence of malice or
mindlessness
(to
the
materials),
or
illegality by the public employer, an
intense scrutiny on why a candidate is
excluded as unsuitable renders the courts'
decision suspect to the charge of trespass
into executive power of determining
suitability
of
an
individual
for
appointment.

...

...

...

31. Public service - like any
other, presupposes that the state employer
has an element of latitude or choice on
who should enter its service. Norms, based
on principles, govern essential aspects such
as qualification, experience, age, number
of attempts permitted to a candidate, etc.
These,
broadly
constitute
eligibility
conditions required of each candidate or
applicant aspiring to enter public service.
Judicial review, under the Constitution, is
permissible to ensure that those norms are
fair and reasonable, and applied fairly, in
a non-discriminatory manner. However,
suitability
is
entirely
different;
the
autonomy
or
choice
of
the
public
employer, is greatest, as long as the
process of decision-making is neither
illegal, unfair, or lacking in bona fides."
(emphasis supplied)

11. It has been held by the Supreme
Court in its various decisions that the courts
while judging the validity of executive
decisions do not sit as a court of appeal but
merely review the manner in which the
decision was made and can only inquire as
to whether the decision of the executive has
been actuated by any mala fide or bias or
the
decision
is
based
on
irrelevant
598 INDIAN LAW REPORTS ALLAHABAD SERIES
considerations
or
whether
relevant
considerations have been ignored while
taking a decision. The courts while
exercising their power of judicial review
also look into the question as to whether
there is a proper application of mind by the
concerned authority on the facts of the
case. It has also been observed in different
judgments that while judging the validity of
the executive decisions, the courts must
grant certain measure of freedom of 'play
in the joints' to the executive and while
exercising its power of judicial review, the
constitutional courts do not substitute their
own decision in place of the administrative
decision. (Reference may be made to the
observations in Paragraph Nos. 91 to 94 of
the judgment of the Supreme Court in Tata
Cellular vs. Union of India (1994) 6 SCC
651).

12. At this stage, it would also be
relevant to note that there may be certain
actions
and
matters
which
are
not
susceptible to judicial process because of
want
of
any
judicially
manageable
standards to judge them. The correctness of
such actions are also not to be judged by
the Constitutional Courts in exercise of
power of judicial review. In this context, it
would be
relevant
to
refer
to
the
observations of the Supreme Court in
Paragraph - 12 of its judgment in A.K.
Kaul & Anr. vs. Union of India & Anr.
(1995) 4 SCC 73 which are reproduced
below : -

"12. It is, therefore, necessary to
deal with this question in the instant case.
We may, in this context, point out that a
distinction has to be made between
judicial review and justiciability of a
particular action. In a written constitution
the powers of the various organs of the
State, are limited by the provisions of the
Constitution. The extent of those limitations
on the powers has to be determined on an
interpretation of the relevant provisions of
the
Constitution.
Since
the
task
of
interpreting
the
provisions
of
the
Constitution is entrusted to the Judiciary, it
is vested with the power to test the validity
of an action of every authority functioning
under the Constitution on the touch stone of
the constitution in order to ensure that the
authority exercising the power conferred by
the constitution does not transgress the
limitations placed by the Constitutions on
exercise of that power. This power of
judicial review is, therefore, implicit in a
written constitution and unless expressly
excluded by a provision of the Constitution,
the power of judicial review is available in
respect of exercise of powers under any of
the
provisions
of
the
Constitution.
Justiciability relates to a particular field
falling within the purview of the power of
judicial review. On account of want of
judicially manageable standards, there
may be matters which are not susceptible
to the judicial process. In other words,
during the course of exercise of the power
of judicial review it may be found that
there are certain aspects of the exercise of
that power which are not susceptible to
judicial process on account of want of
judicially manageable standards and are,
therefore, not justiciable."
(emphasis supplied)

13. The petitioner is on trial in a case
which involves moral turpitude. The
Additional Chief Secretary, while passing
the impugned order dated 28.02.2024, has
considered the fact regarding the pendency
of the criminal case against the petitioner
and also the claim of the petitioner that the
pendency of the aforesaid criminal case
could not be a legal impediment in
appointing the petitioner subject to the final
11 All. Rafat Naaz & Anr. Vs. State of U.P. & Ors.
599
decision of the trial court as was done by
the Rajya Sabha Secretariat where the
petitioner was appointed as Protocol /
Executive Officer in the Rajya Sabha
Secretariat. The petitioner also relies on the
fact that he is already a member of the
Group - A service under the Central
Government. However, the aforesaid facts
are not sufficient for this Court to hold that
the appointing authority, in the present
case, has wrongly exercised its discretion
rejecting the claim of the petitioner. Two
different public employers may have
different views regarding the suitability of
a candidate for appointment and one
employer is not bound by the decision and
discretion of the other employer. The State
Government cannot be saddled with the
liability to mechanically and slavishly
follow the decision taken by the Central
Government
or
the
Rajya
Sabha
Secretariat. While rejecting the claim of the
petitioner, the State Government has taken
note of the fact that the petitioner is a
claimant for appointment on the post of
Deputy Collector in the Provincial Civil
Services (Executive). The appointment
sought by the petitioner is on a high post,
therefore, in accordance with the judgment
of the Supreme Court in Avtar Singh
(supra), a rigorous scrutiny regarding the
suitability of the petitioner for appointment
cannot be considered as an improper
exercise of discretion. Further, in light of
the judgment of the Supreme Court in
Nazrul Islam (supra), the petitioner cannot
be considered as suitable for appointment
in Provincial Civil Services (Executive) till
the pendency of the criminal case against
him.

14. So far as the opinion of the
appointing authority that the post of the
Deputy Collector is more sensitive post
than the post currently held by the
petitioner under the Central Government is
concerned, the comparative assessment of
the sensitivities of different posts lies
within the exclusive domain of the
Executive and the correctness of the
decision regarding the sensitivity and
importance of different posts cannot be
made on the basis of any judicially
manageable and recognized standards. The
said fact is a non-justiciable fact preventing
this Court from exercising its power of
judicial review.

15. The records available with the
Court do not show any improper motive or
mala fide or bias in the competent authority
and any such ground has also not been
pleaded by the petitioner while challenging
the impugned order.

16. There is no error in the opinion of
the appointing authority so as to persuade
this Court to interfere under Article 226 of
the Constitution of India.

17. For all the aforesaid reasons, there
is no error in the impugned order dated
28.02.2024 passed by the Additional Chief
Secretary, Appointment Section - III,
Government of Uttar Pradesh, Lucknow.

18. The writ petition is dismissed.
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(2024) 11 ILRA 599
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 6031 of 2024

Rafat Naaz & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents