Sunil Kumar Jain vs State Of U.P. And 5 Others
- Court
- Allahabad High Court
AFR
Reserved on 27.05.2026
Delivered on 29.05.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - A No. - 10333 of 2025
…..Petitioner(s)
Sunil Kumar Jain
Versus
State Of U.P. And 5 Others …..Respondents(s)
Counsel for Petitioners(s) : Ritesh Upadhyay, Sr. Advocate
Counsel for Respondent(s) : C.S.C., Nipun Singh, Prateek Rai
Alongwith:
1. Writ-A No. 5941 of 2026
Committee of Management of Digamber Jain Mahavidyalaya and
another Vs. State of U.P. and 3 others
Vs.
State of U.P. and others
2. Writ-A No. 5920 of 2026
Neelu Jain and others
Vs.
State of U.P. and others
Court No. - 32
HON’BLE SAURABH SHYAM SHAMSHERY, J.
2
Writ A No. 10333 of 2025
1. Writ-A No. 10333 of 2025 was filed by one, Sunil Kumar Jain,
claiming himself to be the Treasurer of time barred Committee of
Management of Digamber Jain Mahavidyalaya, Baraut, Baghpat, a
Minority Institution. The impugned order dated 21.04.2025 was passed
by Principal Secretary, Higher Education, State of Uttar Pradesh in
pursuance of a judgment passed in a bunch of three writ petitions,
leading being, Sunil Kumar Jain vs. State of U.P. and others,
2025:AHC:9341 and in order to place relevant facts and details of earlier
round of litigation, it would be appropriate to reproduce said judgment
hereinafter in its entirety:
“1. All these writ petitions are arising out of a selection process
initiated to fill vacant post of Assistant Professor in Digambar Jain
College (Minority Educational Institution), Baraut, Baghpat.
2. Facts, as mentioned in one of the writ petition, are that there was
a dispute with regard to Committee of Management of said Minority
Institution and earlier attempt to fill up the vacant post does not reach
to its logical end due to orders passed by Registrar of Chaudhary
Charan Singh University, Meerut.
3. In above background an issue came up before this Court relating
to inspection and Committee of Management of said Minority
Institution filed Writ-A No. 20415 of 2023, which was disposed of vide
order dated 20.12.2023 and relevant part thereof is mentioned
hereinafter:
“11. The facts are not in dispute. The only bone of contention in
between the parties is relatable to the fact as to whether the said
exercise could have been resorted to by the State Government
on the basis of the complaint behind the back of the writ
petitioners without putting them to notice. The second issue
would be whether the source of power of passing the said order
would be Section 66-A or Section 40 of the U.P. State
Universities Act, 1973. Though learned counsel for the writ
petitioners argues that Section 66-A does not provide for such a
power to be resorted to in view of the judgments in the case of
Rekha Yadav (supra) and Rakesh Ranjan Verma (supra),
however, on the other hand the respondents have relied upon
Section 40 of the 1973 Act. Section 40 of the U.P. State
Universities Act, 1970 provides a procedure, according to which
inspection is to be done and further the association of the
Committee of Management is also required. It is also apparent
from Sub-section (4) of Section 40 that the State Government
may communicate to the Management the result of the
3
Writ A No. 10333 of 2025
inspection or enquiry and may issue a direction as to the action
to be taken and the Management shall comply thereof and
further Sub-Section (5) provides that the State Government shall
inform the Vice-Chancellor about any communication made by
it to the Management under sub-section (4) and finally sub-
section (6) of Section 40 provides that the State Government
may, at any time, call for any information from the Management
or Principal of an affiliated or associated college in connection
with such inspection or inquiry. Thus in the opinion of the
Court, a complete set of procedure has been provided
modulating the manner according to which inspection is to be
done and follow up action to be taken in that regard. Since the
Court finds that the order in question has been passed in
violation of the principles of natural justice and further the writ
petitioner has raised the issue of jurisdiction, thus in the opinion
of the Court the State Government has to specify as to what is
the provision, under which it has proceeded to take such an
action and whether it is permissible under law.
12. Bearing in mind the aforesaid issues, the writ petition is
decided in the following manner: (a) The order dated 22.11.2023
passed by the Joint Secretary, State of U.P., Lucknow, second
respondent is set aside. (b) The matter stands remitted back to
the second respondent, Joint Secretary, State of U.P., Lucknow,
to pass fresh order strictly in accordance with law within a
period of two weeks from today.
13. It is open for the affected parties to join themselves post-
remand and the second respondent shall pass orders strictly in
accordance with law detailing the source of power either under
Section 40 or Section 66-A of the State Universities Act 1973
and it is open for the writ petitioners to raise the questions of
jurisdiction and all legal and factual issues, which is to be
decided by the authorities.
14. With the aforesaid observations, the writ petition stands
disposed of.”
4. Before aforesaid order was passed candidates were selected and
they were awaiting their appointment letters.
5. In pursuance of above referred order passed by this Court, Joint
Secretary, Higher Education, Government of U.P., Lucknow passed
order dated 06.05.2024 that since earlier selection of Teachers in
Minority Institution was governed by provisions of U.P. Higher
Education Services Selection Commission Act, however, now a new
Act has been enacted, namely, U.P. Education Service Selection
Commission Act, 2023, which came into force on 21.08.2023 and now
said selection in Minority Institution is to be governed by said
4
Writ A No. 10333 of 2025
Commission and since there is a change of procedure of selection,
therefore, it was directed that earlier selection process is liable to be
cancelled. Relevant part of said order is reproduced hereinafter:
“7- -
प्रश्नगत प्रकरण में सुनवाई के उपरांत बिंदु विचारणीय हैः
7.1 ,
महाविद्यालय का संचालन करने वाली प्रबंध समिति कालातीत है
प्रबन्ध समिति की वैधता एवं चुनाव को लेकर अनेक रिट याचिकाएं मा०
न्यायालय के समक्ष विचाराधीन है।
7.2 , -
क्षेत्रीय उच्च शिक्षा अधिकारी मेरठ के पत्र संख्या
/1324-26/2023-2024 10.07.2023 05
क्षे०का०मे० दिनांक के माध्यम से
, , , - -
पदों पर निदेशक उच्च शिक्षा प्रयागराज के पत्र संख्या डिग्री अर्थ
1/2562/2023-2024 04.08.2023 08
दिनांक के माध्यम से पदों पर एवं
, , - -1/2944/2023-
निदेशक उच्च शिक्षा प्रयागराज के पत्र संख्या डिग्री अर्थ
2024 08.08.2023 09
दिनांक के माध्यम से पदों पर अर्थात शिक्षकों के
22 , ,
रिक्त पदों पर भर्ती की अनुज्ञा प्रदान की गयी। निदेशक उच्च शिक्षा
कुल
04.08.2023
प्रयागराज के उपर्य़ुक्त संदर्भित पत्रों दिनांक एवं दिनांक
08.08.2023 "
में स्पष्ट उल्लिखि त है कि प्रस्तावित शिक्षा सेवा चयन आयोग
के अस्ति त्व में आने के फलस्वरूप भर्ती प्रक्रिया में कोई बदलाव होता है
, "
तो उक्त अनुज्ञा स्वतः निरस्त समझी जायेगी।
7.3 -1,
यहां सबसे महत्वपूर्ण बिंदु यह है कि विधायी अनुभाग उ०प्र०
-415/79- -1-2023-1- -14-2023
शासन द्वारा निर्गत अधिसूचना संख्या वि क
21.08.2023
दिनांक के माध्यम से उ०प्र० शिक्षा सेवा चयन आयोग
, 2023
अधिनियम
प्रख्यापित हुआ। इस आयोग के माध्यम से सहायता प्राप्त
अल्पसंख्यक महाविद्यालयों में शिक्षकों की नियुक्त की जानी है। ध्यातव्य है
कि सहायता प्राप्त अल्पसंख्यक महाविद्यालयों में शिक्षकों की भर्ती उ०प्र०
,
उच्चतर शिक्षा सेवा चयन आयोग प्रयागराज की परिधि से बाहर था। अर्थात
,
उ०प्र० शिक्षा सेवा चयन आयोग प्रयागरा के गठन के उपरांत अल्पसंख्यक
महाविद्यालयों में भर्ती की प्रक्रिया में बदलाव किया गया है। अतः उक्त
, , 04.08.2023
आधार पर निदेशक उच्च शिक्षा प्रयागराज के पत्र दिनांक एवं
08.08.2023
दिनांक द्वारा निर्गत अनुज्ञायें स्वतः निरस्त हो गयी है। उत्तर
प्रदेश शिक्षा सेवा चयन आयोग के गठन के उद्देश्य एवं कारण में यह स्पष्ट
"
उल्लिखि त है कि संस्था स्तरीय चयन समितियों द्वारा संचालित चयन
,
प्रक्रिया में पारदर्शिता का अभाव भी परिलक्षित है जिसके परिणामस्वरूप
"
मुकदमें की स्थि तियां उत्पन्न हो रही है। प्रश्नगत प्रकरण में भी यही स्थि ति
परिलक्षित होती है।
7.4
प्रश्नगत प्रकरण में महाविद्यालय प्रबंध समिति द्वारा संचालित भर्ती
, ,
प्रक्रिया पर वैधता अनियमितता भ्रष्टाचार एवं अनेक अन्य आरोप लगाये
गये है। सूच्य है कि सहायता प्राप्त अल्पसंख्यक महाविद्यालयों के शिक्षकों
के वेतन का भुगतान राज्य द्वारा प्रदत्त अनुदान से किया जाता है। लोक
, ,
निधियों का प्रभावी कुशल पारदर्शी एवं शुचितापूर्ण उपयो्ग सुनिश्चित करना
5
Writ A No. 10333 of 2025
राज्य सरकार का सबसे महत्वपूर्ण दायित्व है। ऐसी स्थि ति में शिक्षकों के
, ,
चयन की पारदर्शी निष्पक्ष शुचितापूर्ण एवं गुणवत्तापूर्ण व्यवस्था के लिये
उ०प्र० शिक्षा सेवा चयन आयोग का गठन किये जाने के बाद दिगम्बर जैन
, , , ,
कालेज बडौत बागपत में शिक्षकों की भर्ती प्रक्रिया उसी प्रबंधतंत्र से
,
जिस पर अनेक आरोप लगाये गये है से कराये जाने का कोई औचित्य
प्रतीत नहीं होता है। उक्त के अतिरिक्त उ०प्र० शिक्षा सेवा चयन आयोग के
गठन के उपरांत कालेज द्वारा भर्ती प्रक्रिया संचालित होने से एक ही समय
,
में दो पृथक प्रक्रियाए स्थापित हो जायेंगी जो विधि विरूद्ध होगा।
8- -20415/2023
अतः उपर्युक्त वर्णित स्थि ति में रिट याचिका संख्या
, ,
कमेटी आफ मैनेजमेंट दिगम्बर जैन महाविद्यालय बडौत बागपत व अन्य
07 ,
बनाम उ०प्र० राज्य व अन्य में मा० उच्च न्यायालय इलाहाबाद द्वारा
20.12.2023
पारित आदेश दिनांक के अनुपालन में उ०प्र० शिक्षा सेवा
, ,
चयन आयोग के गठन के उपरांत निदेशक उच्च शिक्षा प्रयागराज द्वारा
- ,
निर्गत अनुज्ञाएं स्वतः निरस्त होने की स्थि ति में महाविद्यालय हित उच्च
-
शिक्षा हित एवं पारदर्शिता तथा शुचिता सुनिश्चित करने के दृष्टिगत दिगम्बर
, , 22
जैन महाविद्यालय बडौत बागपत में असि० प्रोफेसर के पदों पर
प्रक्रियारत भर्ती उ०प्र० शिक्षा सेवा चयन आयोग से कराये जाने का निर्णय
एतद द्वारा किया जाता है।”
6. Aforesaid order dated 06.05.2024 was challenged by selected
candidates in Writ-A No. 7792 of 2024 and by Committee of
Management by way of filing Writ-A No. 7979 of 2024.
7. In said two writ petitions counter affidavit was filed by State-
Respondents-1, 2 and 3 (The State of U.P. through Secretary, Higher
Education, U.P., Lucknow; The Joint Secretary, State of U.P.,
Lucknow; and The Director of Higher Education, U.P., Prayagraj,
respective), sworn by Assistant Director, Office of Directorate, Higher
Education at Prayagraj and relevant paragraphs thereof are mentioned
hereinafter:
“ 8. That it is provided that the Committee of Management
managing the institution is time-barred, therefore, various writ
petitions filed for validity and for holding the elections of
Committee of Management.
9. That it is further relevant to mention here that permission
was given for recruitment on 05 post by Regional Higher
Education Officer, Meerut vide letter dated 10.07.2023, on 08
posts by Director, Higher Education vide letter dated 04.08.2023
and on 09 posts by the Director, Higher Education, Prayagraj,
vide letter dated 08.08.2023 i.e. a total of 22 vacant posts of
teachers.
10. That it is clearly mentioned in the above referred letters
dated 04.08.2023 and dated 08.08.2023 of the Director, Higher
6
Writ A No. 10333 of 2025
Education, Prayagraj that, “ If there is any change in the
recruitment process as a result of the coming into existence of
the proposed Education Service Selection Commission, the said
permission will automatically deemed to be cancelled. The most
important point here is that the Uttar Pradesh Education Service
Selection Commission Act, 2023 was promulgated by,
Notification dated 21.08.2023 issued by the Uttar Pradesh
Government.
11. That in terms of Notification dated 21.08.2023 issued by
the Uttar Pradesh Government the teachers are also to be
appointed in aided minority colleges by the UP Education
Service Selection Commission. It is noteworthy to mention here
that the recruitment of teachers in aided minority colleges was
outside the purview of UP Higher Education Service Selection
Commission, Prayagraj, but, after the formation of UP
Education Service Selection Commission, Prayagraj, the process
of recruitment in minority colleges has been changed. Therefore,
on the above basis, the permissions issued by the Director,
Higher Education, Prayagraj vide letter dated 04.08.2023 and
dated 08.08.2023 have been automatically stand nullified. It is
clearly mentioned in the purpose and reason of constitution of
Uttar Pradesh Education Service Selection Commission that
lack of transparency is also reflected in the selection process
conducted by the institution level selection committees, as a
result of which, various litigations have been filed.
12. That the same situation is reflected in the case in question
and in the case in question, allegations of legality, irregularity,
corruption and many other allegations have been made on the
recruitment process conducted by the College Management
Committee. It is further pointed that the salaries of teachers of
aided minority colleges are paid from the grants provided by the
state. The most important responsibility of the state
governments is to ensure effective, efficient, transparent and fair
use of public funds. At this stage, after the constitution of Uttar
Pradesh Education Service Selection Commission for a
transparent, fair and complete quality system of selection of
teachers, the recruitment process of teachers in the institution in
question to be done by the same management against which
many allegations have been made on which there seem to be any
justification.
13. That apart form the above, if the recruitment process is
conducted by the college after the formation of Uttar Pradesh
Education Service Selection Commission, two separate
processes will be established at the same time, which will be
against the law. In the above mentioned situation, a writ petition
7
Writ A No. 10333 of 2025
no. 20415/2023 filed by the petitioner, in which this Hon’ble
Court passed order dated 20.12.2023, consequently in
compliance with the Hon’ble Court’s order dated 20.12.2023
passed in the aforesaid writ petition, after the constitution of
Uttar Pradesh Education Service Selection Commission, in the
event of automatic cancellation of permissions issued by the
Director, Higher Education, Prayagraj, in the interest of the
college- interest of higher education and to ensure transparency
and purity. Thus, in view of aforesaid backdrop, it has been
decided to get the recruitment process for 22 posts of Assistant
Professor in the Institution in question done by Uttar Pradesh
Education Service Selection Commission.”
8. Above referred specific stand of State-Respondents is later on
changed and a U-tern was taken and without any permission of this
Court or informing the Court, Chief Secretary of Higher Education,
issued a Office Memorandum dated 20.11.2024 that earlier order dated
06.05.2024 was recalled on basis of a representation filed by
Committee of Management of said Minority Institution dated
16.05.2024. Said order dated 20.11.2024 is reproduced hereinafter:
" ,
उत्तर प्रदेश शासन
-2
उच्च शिक्षा अनुभाग
-1/800391 2024 70-2099/52/2023
संख्याः
20 , 2024
लखनऊः दिनाँक नवम्बर
-
कार्यालय ज्ञाप
, , 22
दिगम्बर जैन महाविद्यालय बडौत बागपत में असि० प्रोफेसर के पदों
/
पर भर्ती के दिन से सचिव प्राचार्य प्रबंध समिति दिगम्बर जैन कालिज
, 16.05.2024
बडौत बागपत के प्रत्यावेदन दिनांक पर सम्यक विचारोपरान्त
प्रक्रियारत भर्ती का उ०प्र० शिक्षा सेवा चयन आयोग प्रयागराज से कराये
-844/ - 2-2023-16(117)/2023
जाने संबंधी कार्यालय ज्ञाप संख्या सत्तर
06.05.2024
दिनांक की आध्यता समाप्त की जाती है।
2. -
उक्त आदेश मा० उच्च न्यायालय में योजित रिट याचिका संख्या
7979/2024 04 05
नीलू जैन व अन्य बनाम उ०प्र० राज्य व अन्य तथा
-7979/2024/
रिट याचिका संख्या कमेटी आफ मैनेजमेंट दिगम्बर जैन
07
महाविद्यालय बडौत बागपत व अन्य बनाम उ०प्र० राज्य व अन्य में
मा० उच्च न्यायालय इलाहाबाद द्वारा पारित अंतिम निर्णय के अधीन होगा।
Signed by
Mahendra Prasad Agrawal
Date: 19.11.2024 19.48.22
( )
एम०पी० अग्रवाल
"
प्रमुख सचिव ।
9. Aforesaid order is challenged by other Petitioner-Sunil Kumar
Jain, claiming to be a life member of Committee of Management by
8
Writ A No. 10333 of 2025
filing Writ-A No. 19843 of 2024. As referred above, aforesaid order has
neither referred the contents of representation dated 16.05.2024 filed
by Committee of Management nor any reason has been assigned why
earlier order dated 06.05.2024 is effectively recalled, despite supported
in counter affidavit filed in other connected writ petitions.
10. Sri Anoop Trivedi, learned Senior Advocate assisted by Ms.
Shreya Gupta, learned counsel appearing for petitioners (selected
candidates) in Writ-A No. 7792 of 2024, mainly, argued that a process
once initiated cannot be stopped on basis of some subsequent event,
i.e., enactment of U.P. Education Service Selection Commission Act,
2023. Impugned order dated 06.05.2024 does not describe any reasons,
therefore, it was rightly recalled by a subsequent order dated
20.11.2024, which is impugned in Writ-A No. 19843 of 2024. It was
also referred that challenge to said order in above writ petition is not
maintainable since selected candidates, i.e., petitioners in Writ-A No.
7792 of 2024, are not made party.
11. Sri G.K. Singh, learned Senior Advocate assisted by Sri Nipun
Singh, learned counsel appearing for petitioners in Writ-A No. 7979 of
2024 filed by Committee of Management of said Minority Institution,
has reiterated the similar arguments. He also requested that opportunity
be granted to State to file counter affidavit in Writ-A No. 19843 of
2024.
12. As referred above, in aforesaid two writ petitions, i.e., Writ-A
Nos. 7792 of 2024 and 7979 of 2024, order impugned is dated
06.05.2024 and as referred above, this order is now recalled by
subsequent order dated 20.11.2024, as such both these writ petitions
may become infructuous, however, since order dated 20.11.2024 is
impugned in Writ-A No. 19843 of 2024, therefore, Court will take note
of above submissions also, if required, in later part of judgment.
13. Sri Rakesh Pande, learned Senior Advocate assisted by Sri
Chandan Sharma, learned counsel appearing for petitioner in Writ-A
No. 19843 of 2024, submitted that the Committee of Management is
under dispute, as such any process initiated was a legally incorrect
approach. Once order dated 06.05.2024 was under challenge and it was
supported by State, then any order to recall it or change it by
subsequent order dated 20.11.2024 was illegal.
14. In reply to above submissions, Sri R.K. Tripathi, learned
Additional Chief Standing Counsel for State-Respondents, submitted
that State was empowered to take a different decision since there was
no bar.
15. Heard learned counsel for parties and perused the material
available on record.
9
Writ A No. 10333 of 2025
16. Pleadings are already exchanged in one of the writ petition and
all the facts are before this Court, therefore, there is no need to file
counter affidavit in Writ-A No. 19843 of 2024.
17. So far as maintainability of Writ-A No. 19843 of 2024 is
concerned since selected candidates are not party in it, for that the
Court takes note that selected candidates are already before this Court
by filing Writ-A No. 7792 of 2024 wherein pleadings are already
exchanged as well as now they have filed impleadment application and
their version has also been heard.
18. As referred above, there is a dispute with regard to Committee
of Management of concerned Minority Institution, however, the Court
is not entering into that issue at this stage.
19. The Court is concerned that once an order has been passed by
Higher Education Department of State of U.P. in pursuance of an order
passed by this Court on 06.05.2024 that the selection process of
Teachers in said Minority Institution cannot go further and some
reasons were also assigned, which was subject matter of two writ
petitions, i.e., Writ-A Nos. 7792 of 2024 and 7979 of 2024 and even a
detailed counter affidavit was filed by State-Respondents, supporting
the said order with specific averment, then under what circumstances
without informing the Court, said order was recalled by a cryptic order
dated 20.11.2024. For reference said order dated 20.11.2024 is again
reproduced hereinafter:
" ,
उत्तर प्रदेश शासन
-2
उच्च शिक्षा अनुभाग
-1/800391 2024 70-2099/52/2023
संख्याः
20 , 2024
लखनऊः दिनाँक नवम्बर
-
कार्यालय ज्ञाप
, , 22
दिगम्बर जैन महाविद्यालय बडौत बागपत में असि० प्रोफेसर के पदों
/
पर भर्ती के दिन से सचिव प्राचार्य प्रबंध समिति दिगम्बर जैन कालिज
, 16.05.2024
बडौत बागपत के प्रत्यावेदन दिनांक पर सम्यक विचारोपरान्त
प्रक्रियारत भर्ती का उ०प्र० शिक्षा सेवा चयन आयोग प्रयागराज से कराये
-844/ - 2-2023-16(117)/2023
जाने संबंधी कार्यालय ज्ञाप संख्या सत्तर
06.05.2024
दिनांक की आध्यता समाप्त की जाती है।
2. -
उक्त आदेश मा० उच्च न्यायालय में योजित रिट याचिका संख्या
7979/2024 04 05
नीलू जैन व अन्य बनाम उ०प्र० राज्य व अन्य तथा
-7979/2024/
रिट याचिका संख्या कमेटी आफ मैनेजमेंट दिगम्बर जैन
07
महाविद्यालय बडौत बागपत व अन्य बनाम उ०प्र० राज्य व अन्य में
मा० उच्च न्यायालय इलाहाबाद द्वारा पारित अंतिम निर्णय के अधीन होगा।
Signed by
Mahendra Prasad Agrawal
10
Writ A No. 10333 of 2025
Date: 19.11.2024 19.48.22
( )
एम०पी० अग्रवाल
"
प्रमुख सचिव ।
20. Contents of above order indicates that a very Senior Officer in
Higher Education Department, in a very careless manner proceeded
with the matter and without taking note of stand of Department before
this Court and the fact that matter is sub-judice. The said Higher
Officer has not taken pain to inform the Court about order dated
20.11.2024. No reason has been mentioned in above referred order nor
any details are mentioned about said representation dated 16.05.2024
submitted by Committee of Management, after a writ petition was filed
before this Court, being Writ-A No. 7979 of 2024 on 12.05.2024. Even
said Committee of Management has also not informed the Court that
any representation was pending before said authority.
21. Aforesaid approach of a Senior Officer of State, i.e., Chief
Secretary of Higher Education, was not only casual but inappropriate
also. Accordingly, Court is of the considered opinion that there was no
justification to pass said order especially when it has assigned no
reason.
22. In view of above, impugned order dated 20.11.2024 in Writ-A
No. 19843 of 2024, is hereby set aside.
23. So far as order impugned in Writ-A Nos. 7792 of 2024 and 7979
of 2024, i.e., order dated 06.05.2024 is concerned, said order also
cannot sustain on ground that it does not take note of other provisions
of U.P. Education Service Selection Commission Act, 2023, i.e.,
Repeal and Savings as provided under Section 31 of Act. It ought to
have taken note with regard to eligibility and minimum qualifications,
whether there was any difference or not. Court also takes note, as told
by learned counsel for parties, that till date U.P. Education Service
Selection Commission has not commenced its working. These factors
were not even taken note of.
24. In aforesaid circumstances, impugned order dated 06.05.2024 in
Writ-A Nos. 7792 of 2024 and 7979 of 2024, is hereby set aside.
Concerned respondents are directed to relook into the matter and pass a
fresh order. Higher Officials in Department of Higher Education,
Government of U.P. are cautioned to remain careful while passing
orders, especially when they are recalling any order during pending
litigation. Fresh decision shall be taken within a period of four weeks
from today. Meanwhile, further procedure of selection shall be kept in
abeyance.
25. With aforesaid observations/ directions, all these writ petitions
are disposed of.”
11
Writ A No. 10333 of 2025
2. In above background, one of the relevant fact which is necessary
to mention herein is that in aforesaid matter judgment was reserved on
10.01.2025 and delivered within a short period of 11 days, i.e., on
21.01.2025.
3. In the garb of “deemed approval” not only appointment letters
were issued to selected candidates but they were allowed to join also on
09.01.2025, i.e., a day prior when the writ petitions were listed for final
hearing, however, said fact was not disclosed during final hearing,
therefore, it is necessary to observe that it was an act of undue haste
and, therefore, a direction passed by this Court in above referred
judgment that further procedure of selection shall be kept in abeyance,
was rendered ineffective.
4. In pursuance of aforesaid judgment dated 21.01.2025, the
Principal Secretary, Higher Education, U.P. passed order dated
21.04.2025, whereby it was held that procedure initiated to fill up 22
posts of Assistant Professors at concerned Institution, would continue in
accordance with the Uttar Pradesh Secondary Education Services
Selection Board Act, 1982 on ground that the advertisements were
published on 08.08.2023 and 12.08.2023 whereas U.P. Education
Service Selection Commission Act, 2023 (hereinafter referred to as
“Act, 2023”) was notified in the Gazette of State on 21.08.2023
(wrongly mentioned as 12.12.2023 in impugned order), i.e., the
procedure for selection was already initiated before “Act, 2023” came
into force as well as that no other irregularity was found in selection
process, i.e., due selection procedure was adopted and all candidates
were qualified and selected on merit.
5. Aforesaid order dated 21.04.2025 passed by Principal Secretary,
Higher Education, Government of U.P., is challenged in first petition,
i.e., Writ-A No. 10333 of 2025.
6. Sri V.K. Singh, learned Senior Advocate assisted by Sri Shashank
Shekhar Mishra, Advocate appearing for selected candidates, i.e.,
petitioners in Writ-A No. 5920 of 2026, Sri Nipun Singh, learned Senior
12
Writ A No. 10333 of 2025
Advocate assisted by Sri Naman Agrawal, Advocate appearing for
Committee of Management of College concerned, i.e., petitioners in
Writ-A No. 5941 of 2026 and Sri G.K. Singh, learned Senior Advocate
assisted by Sri Avneesh Tripathi, learned counsel for University, have
submitted that first petition, i.e., writ petition filed by Sunil Kumar Jain,
is not maintainable mainly on two grounds.
7. Firstly, petitioner-Sunil Kumar Jain, cannot file writ petition being
Treasurer of Committee of Management since it would be a challenge to
resolutions passed by said Committee of Management and in support of
above submission reliance was placed on the judgments passed by
Supreme Court in Kumari Chitra Ghosh and another vs. Union of India
and others, 1969(2) SCC 228 and Ayaaubkhan Noorkhan Pathan vs.
State of Maharashtra and others, 2013(4) SCC 465 as well as this Court’s
judgments in Desh Deepak Srivastava vs. State of U.P. and others,
2015(3) ADJ 352 (DB); Mita Ram Yadav and another vs. State of U.P.
and others, 2021:AHC:19808; and, Ram Pal Singh vs. State of U.P. and
others, 2019:AHC:217573, that petitioner either in personal capacity or
in capacity of Treasurer would not fall within the ambit of a “person
aggrieved”.
8. Second limb of objection was that in first petition none of the
selected candidates were arrayed as a party respondent despite their
appointment letters were placed on record and in support of submission,
learned Senior Advocates placed reliance on a judgment passed by
Supreme Court in Prabodh Verma and others vs State of Uttar Pradesh
and others, 1984(4) SCC 251.
9. Per contra, Sri R.K. Ojha, learned Senior Advocate assisted by Sri
Ritesh Upadhyay, Advocate for petitioner-Sunil Kumar Jain in first
petition, submitted that petitioner has already filed earlier writ petitions
in the same capacity and without any objection, said writ petitions were
considered on merit and were allowed to some extent, with certain
directions and on said direction the impugned order was passed,
therefore, any objection on locus may not be reopened at this stage.
13
Writ A No. 10333 of 2025
10. Learned Senior Advocate for petitioner-Sunil Kumar Jain further
tried to defend that writ petition may not be rejected on ground of non
joinder of parties since selected candidates have also approached this
Court subsequently by way of separate writ petition, being Writ-A No.
5920 of 2026. The challenge is to the procedure of selection and on legal
advice an application for impleadment of selected candidates was also
filed later on.
11. However, Court finds that aforesaid defect of non-joinder of
parties goes to the root of case since petitioner cannot deny that he was
not aware about subsequent events that selected candidates were already
appointed and they have joined at their respective posts as well as
University has granted approval also, therefore, it was necessary for
petitioner in first petition to array them as a party and in this regard
Court takes note of judgments passed by Supreme Court in Vijay Kumar
Kaul and others vs. Union of India and others, 2012(7) SCC 610; J.S.
Yadav vs. State of U.P. and another, 2011(6) SCC 570; and, Public
Service Commission of Uttaranchal vs. Mamta Bisht and others,
2010(12) SCC 204.
12. In above background, first petition can be dismissed on ground of
non-joinder of relevant parties, however, the Court takes note that there
are two other writ petitions filed by selected candidates and Committee
of Management to challenge the subsequent orders passed on basis of an
interim order passed in first petition and that a legal issue has also been
cropped up that whether recruitment process would be considered to be
commenced with effect from publication of advertisement or at the stage
of consideration by Competent Authority, i.e., approval of appointment
and what would be the effect if meanwhile rules were amended or a new
Act was enacted, after publication of advertisement, however, before
final consideration. Therefore, for consideration of said issue Court
proceed to decide the petitions on merit, ignoring above procedural
defect.
14
Writ A No. 10333 of 2025
13. In first petition, i.e., Writ-A No. 10333 of 2025, following interim
order was passed by a Coordinate Bench on 25.07.2025:
“1. The instant writ petition has been filed seeking following main
prayers:-
"(I) Issue a writ, order or direction in the nature of certiorari
calling for the record of case and to quash the impugned order
dated 21.04.2025 passed by Respondent No. 1 i.e. Principal
Secretary Higher Education, Government of U.P., Lucknow.
(II) Issue a writ, order or direction in the nature of mandamus
commanding the Respondents to fill up the vacant post of
Assistant Professor in the institution in accordance with law i.e.
through ''U.P. Education Service Selection Commission"."
2. Sri R.K. Ojha, learned Senior Counsel assisted by Sri Ritesh
Upadhyay, learned counsel appearing on behalf of the petitioner
submitted that the impugned order dated 21.04.2025 passed by the
respondent no.1 in the teeth of the order dated 04.08.2010 passed by
the co-ordinate Bench of this Court in Writ-C No.45786 of 2010 (Atul
Kumar Jain Vs. State of U.P. and others). It is submitted that the
respondent no.1 while passing the impugned order has recorded the
wrong finding that the Uttar Pradesh Education Service Selection
Commission Act, 2023 (hereinafter referred to as the Act, 2023) is
notified/ gazetted on 13.12.2023, while it has been notified on
21.08.2023 much prior to the interview dates commenced with
19.11.2023 to 24.11.2023.
3. Mr. Ojha, learned Senior Counsel has placed the Gazette dated
21.08.2023 before this Court for perusal. The same has been perused
and found that the Gazette was published on 21.08.2023 not on
13.12.2023.
4. Mr. Ojha, learned Senior Counsel also submitted that there is no
valid Committee of Management in existence in the institution since
1999. It is submitted that the authority concerned by way of making
appointments in the institution without following the norms, statutory
provision and also some other considerations. It is, therefore, submitted
that the entire selection process is illegal, unjust, without sanction of
any valid authority and contrary to the law. It is vehemently submitted
that the entire selection process of the institution after the notification/
Gazette dated 21.08.2023 by which the recruitment power of the
minority institution has been withdrawn by the State Government is
deserved to be set aside.
5. Taking into consideration of the submissions made by the learned
Senior Counsel appearing on behalf of the petitioner, averments made
15
Writ A No. 10333 of 2025
in the writ petition and documents on record, prima facie I am of the
opinion that matter requires consideration.
6. Issue notices to respondent nos.5 and 6 by ordinary post as well as
registered post on payment of PF within a week.
7. Learned Standing Counsel appeared on advance accepted notice on
behalf of State-respondents nos.1, 3 and 4.
8. Sri Prateek Rai, learned counsel appeared on advance accepted
notice on behalf of respondents no.2.
9. Learned Standing Counsel and learned counsel for respondent no.2
vehemently opposed the petition and prayed four weeks time to file
counter affidavits.
10. Let them file counter affidavits within the period as prayed.
11. Rejoinder affidavit, if any, may be filed within two weeks
thereafter.
12. List on 19.09.2025.
13. Since the matter kept pending for further consideration, considering
the averments made in the petition, I am of the opinion that the
operation of the impugned order dated 21.04.2025 should be kept in
abeyance till the next date of hearing.
14. Accordingly, the operation of impugned order dated 21.04.2025
passed by the respondent no.1, shall be kept in abeyance till the next
date of hearing.”
14. As referred above, aforesaid interim order was passed without
taking note that selected candidates were not party. On basis of above
interim order, Regional Higher Education Officer, Meerut passed an
order dated 26.02.2026 whereby the order of disbursement of salary in
favour of selected candidates was stopped with immediate effect and
subsequently by an order dated 02.04.2026 Registrar, Chaudhary Charan
Singh University, Meerut suspended the order dated 26.07.2025,
whereby approval was granted to appointments of selected candidates.
15. Some of the selected candidates, being aggrieved by aforesaid
orders dated 26.02.2026 and 02.04.2026, filed Writ-A No. 5920 of 2026
and subsequently Committee of Management of said College has also
challenged aforesaid orders by way of filing Writ-A No. 5941 of 2026,
which are also connected with first petition filed by petitioner-Sunil
Kumar Jain and are being decided finally by present judgment.
16
Writ A No. 10333 of 2025
16. Now the Court proceed to consider the issue referred in paragraph
no. 12 of this judgment.
17. Learned Senior Advocate appearing for petitioner-Sunil Kumar
Jain, vehemently referred a recent judgment passed by Supreme Court in
the case of Dr. Manoj Kumar Rawat vs. State of U.P. and others, 2026
INSC 508 wherein following question of law was also considered:
“(ii) Whether, after enforcement of the Uttar Pradesh Education
Service Selection Commission Act, 2023 (hereinafter referred as ‘the
New Act’), repealing the old Act, the recommendation dated
13.12.2023 and consequential communications and placement order
dated 12.01.2024 and 15.01.2025, issued in favour of the appellant can
be sustained within the statutory scheme of the New Act?”
18. Above referred question of law was answered by the Supreme
Court in following manner:
“21. At this stage, it also imperative to refer to the judgement of this
Court in Kamlesh Kumar Sharma (Supra) wherein this Court had the
occasion to deal with the interpretation of the word ‘otherwise’ in
Section 13(4) of the Old Act. In the said judgement, it was held that if a
wider interpretation is given, it would run contrary to the very object of
the Old Act and permit filling of vacancy which was never advertised
and a person, who did not apply, would inadvertently be absorbed on
such vacancy. The relevant portion of the judgement is reproduced as
thus:—
“13. We find, after giving our careful consideration that in case
the appellant's argument is accepted by giving wider
interpretation to the word “otherwise”, it would thwart the very
object of the Act. In other words it would permit the filling of
the vacancy occurring which was never advertised and a person
in the select list panel, even though not applying for any
vacancy, would be absorbed. Hence it would be limiting the
sphere of selection in contradiction to the object of the provision
to draw larger applicants by advertising every vacancy to be
filled in. We have no hesitation to say that any appointment to
be made on a vacancy occurring in the succeeding year in
question for which there is no advertisement under the
provisions of sub-section (4) of Section 12, the person on the
panel list of preceding academic year in question, cannot be
absorbed or be appointed. The word “otherwise” has to be read
as ejusdem generis, that is to say, in group similar to death,
resignation, long leave vacancy, invalidation, person not joining
after being duly selected. In other words, it would be a case of
17
Writ A No. 10333 of 2025
unforeseen vacancies which could not be conceived under
Section 12(2). Section 12(2) conceives of a vacancy which is
existing on the date the vacancy is to be advertised and which is
likely to be caused in future but constricted for a period ending
in the ensuing academic year in question. The words “likely to
be caused” under Section 12(2) are followed by the words
“during the course of the ensuing academic year” that is any
person likely to retire by the end of the academic year in
question. In other words, such vacancies could be foreseen and
not unforeseen. While vacancies under Section 13(4) are
unforeseen vacancies which fall under the group, death and/or
resignation. Hence the word “otherwise” cannot be given the
wide and liberal interpretation which would exclude a large
number of expected applicants who could be waiting to apply
for the vacancies occurring in the succeeding year in question.”
22. In view of the above, it is observed that under the scheme of Old
Act, the act done was issuance of recommendation dated 03.08.2022 by
the Director. Simultaneously, in response to the appellant's
representation dated 26.06.2023, the Director vide letter dated
17.08.2023 to the Special Secretary has unequivocally made it clear
that after issuance of the previous recommendation on 03.08.2022
under the government instructions and applicable law, no arrangement
for changing the place of posting can be made. In such a scenario, prior
to the commencement of the New Act on 21.08.2023, the act done by
the authorities was issuing the recommendation dated 03.08.2022,
which remained valid and no further action was recommended vide
letter dated 17.08.2023. Therefore, in furtherance to the repeal and
saving clause under Section 31(2) of the New Act, the act done will be
treated only to the extent indicated above.
23. It is even more surprising that after the letter dated 17.08.2023 and
commencement of the New Act, the Joint Secretary, Government of
Uttar Pradesh, on his own accord, issued order dated 12.01.2024
recommending the name of the appellant for being posted as Principal
of Meerut College. In our view, after commencement of the New Act,
the validity of the list/panel under the Old Act will automatically lapse
and the authorities are duty bound to follow the procedure under
Sections 10 and 11 of the New Act to take steps for appointment on the
post of Principal. Thus, the concerned authorities could not have issued
the letter dated 13.12.2023 on the basis of the list prepared under the
Old Act and thereafter, passed the consequential orders on 12.01.2024
and 15.01.2024, to effectively recommend and appoint the appellant on
the post of Principal of Meerut College.
24. At this stage and in to understand the real intent of Section 31 of
the New Act, it is necessary to refer Section 6 of the Uttar Pradesh
General Clauses Act, 1904 dealing with the ‘Effect of repeal’, whereby
18
Writ A No. 10333 of 2025
it is clear that in case any Uttar Pradesh Act repeals any enactment
hitherto or hereafter, then unless a different intention appears, the
repeal shall not revive anything not in force or existing at the time at
which the repeal takes effect. Further, it shall not affect anything duly
done, suffered or incurred under any enactment so repealed. Therefore,
the act done, as also indicated above, was the recommendation dated
03.08.2022, which could not be implemented. The authorities have
clearly intended that after issuance of the recommendation dated
03.08.2022, no subsequent change in the place of posting can be made
in terms of the letter dated 17.08.2023. Thereafter, on 21.08.2023, the
New Act came into force. Thus, there was no occasion for the
authorities to issue the order dated 13.12.2023 and, consequent
recommendation dated 12.01.2024 and order dated 15.01.2024 in
favour of the appellant, under the pretext of Section 13(4) of the Old
Act indicating that the position had otherwise fallen vacant. Therefore,
with the assistance of Section 6 of the Uttar Pradesh General Clauses
Act 1904, the effect of repeal of the Old Act is clear insofar as it will
not revive the previous list or the act done under the Old Act, which is
having the effect of repeal.” (Emphasis supplied)
19. Learned Senior Advocate has also referred another judgment of
Supreme Court passed in the case of State of U.P. and others vs. Rachna
Hills and others, 2023 SCC OnLine SC 506 and relevant part thereof is
mentioned hereinafter:
“Re issue no. 3 : Whether the posts of teachers could be filled as per
the Rules and Regulations that existed when the vacancies arose and
not as per the amended Regulations?
28. The Division Bench, as well as the Single Judge of the High Court,
accepted the submission of the selected candidates that the vacancies to
the post of teachers could be filled only as per the Rules and
Regulations that operated when the vacancies arose and not as per the
Regulations that came to be amended thereafter.
29. We have already held that approval of DIOS is mandatory and that
the Act injuncts the appointment of a Teacher without such approval.
We have also held that the legal regime concerning the appointment of
Teachers does not contemplate any concept of deemed appointment if
the DIOS does not decide upon the proposal within 15 days. Under
these circumstances, the reference to and reliance on the principle that
Rules that existed at the time when vacancies arose will govern the
appointments is misplaced.
30. In any event, it is now a settled principle of law that a candidate has
a right to be considered in the light of existing Rules, which implies
Rules in force as on the date of consideration. This principle is affirmed
19
Writ A No. 10333 of 2025
by this Court in Deepak Agarwal v. State of U.P. (2011)6 SCC 725, as
below:
“26. It is by now a settled proposition of law that a candidate has
the right to be considered in the light of the existing rules, which
implies the “rule in force” on the date the consideration took
place. There is no rule of universal or absolute application that
vacancies are to be filled invariably by the law existing on the
date when the vacancy arises. The requirement of filling up old
vacancies under the old rules is interlinked with the candidate
having acquired a right to be considered for promotion. The
right to be considered for promotion accrues on the date of
consideration of the eligible candidates. Unless, of course, the
applicable rule, as in Y.V. Rangaiah case lays down any
particular time-frame, within which the selection process is to be
completed. In the present case, consideration for promotion took
place after the amendment came into operation. Thus, it cannot
be accepted that any accrued or vested right of the appellants
has been taken away by the amendment.”
31. While reaffirming the above referred principle, in a subsequent case
of Rajasthan State Sports Council v. Uma Dadhich, (2019)4 SCC 316,
(in which one of us was a member Dr. D.Y. Chandrachud, J., as he then
was). This Court noted:
“5. There is merit in the submission which has been urged on
behalf of the appellants that the respondent had no vested right
to promotion but only a right to be considered in accordance
with the rules as they existed on the date when the case for
promotion was taken up. This principle has been reiterated in
several decisions of this Court. (See H.S. Grewal v. Union of
India, Deepak Agarwal v. State of U.P., State of Tripura v.
Nikhil Ranjan Chakraborty and Union of India v. Krishna
Kumar.”
(emphasis supplied)
32. In a recent decision, in State of Himachal Pradesh v. Raj Kumar,
2022 SCC OnLine SC 680, after reviewing a number of decisions on
the same subject, this Court formulated the following principles:
“70. A review of the fifteen cases that have distinguished
Rangaiah would demonstrate that this Court has been
consistently carving out exceptions to the broad proposition
formulated in Rangaiah. The findings in these judgments, that
have a direct bearing on the proposition formulated by Rangaiah
are as under:
1. There is no rule of universal application that vacancies
must be necessarily filled on the basis of the law which
existed on the date when they arose, Rangaiah's case
20
Writ A No. 10333 of 2025
must be understood in the context of the rules involved
therein.
2. It is now a settled proposition of law that a candidate has a
right to be considered in the light of the existed rules,
which implies the “rule in force” as on the date
consideration takes place. The right to be considered for
promotion occurs on the date of consideration of the
eligible candidates.
3. The Government is entitled to take a conscious policy
decision not to fill up the vacancies arising prior to the
amendment of the rules. The employee does not acquire
any vested right to being considered for promotion in
accordance with the repealed rules in view of the policy
decision taken by the Government. There is no obligation
for the Government to make appointments as per the old
rules in the event of restructuring of the cadre is intended
for efficient working of the unit. The only requirement is
that the policy decisions of the Government must be fair
and reasonable and must be justified on the touchstone of
Article 14.
4. The principle in Rangaiah need not be applied merely
because posts were created, as it is not obligatory for the
appointing authority to fill up the posts immediately.
5. When there is no statutory duty cast upon the State to
consider appointments to vacancies that existed prior to
the amendment, the State cannot be directed to consider
the cases.”
(emphasis supplied)
33. In view of the clear enunciation of the law, we have no hesitation in
rejecting the submission made by the learned counsels for the
Respondents, that the vacancies that existed prior to the amendment of
Regulation 17 of Chapter II, must be governed by unamended rules.”
(Emphasis supplied)
20. Learned Senior Advocate also submitted that permission to initiate
process of selection was granted by Director of Higher Education by
letters 04.08.2023 and 08.08.2023, however, it was with a specific
condition that in case the proposed Education Service Selection
Commission came into existence and resultantly there would be any
change in process, permission would be deemed to be cancelled. By
referring said condition, learned Senior Advocate further submitted that
21
Writ A No. 10333 of 2025
immediately after the advertisement new “Act, 2023” was came into
force, therefore, permission to initiate earlier process was deemed to be
cancelled and any process subsequent to it, which led to appointment of
selected candidates, would be non-est.
21. Learned Senior Advocate also submitted that a litigation with
regard to dispute of Committee of Management is still pending before
this Court in Writ-C No. 45786 of 2010, wherein an interim order was
passed on 04.08.2010 that no election shall be conducted and, therefore,
a time barred Committee of Management was not even empowered to
initiate process of selection, as such, permission would have not been
granted vide an order dated 04.08.2023, however, later on said order was
recalled by a subsequent order dated 06.05.2024, which was subject
matter of earlier round of litigation and that effect of said interim order is
still in existence.
22. Per contra, learned Senior Advocate appearing on behalf of
petitioners in Writ-A No. 5920 of 2026, i.e., writ petition filed by
selected candidates, submitted that once a process was already initiated
with due permission and advertisement was also published then such act
would be protected though subsequently “Act, 2023” came into force
and for that learned Senior Advocate has referred Section 31 of Act,
2023, i.e., “Repeal and Savings” and in support of his submission placed
reliance on a judgment passed by a Full Bench of this Court in Santosh
Kumar Singh vs. State of U.P. and others, 2015(7) ADJ 179 (FB) and
referred the questions framed therein as well as answer given to said
questions, which are reproduced hereinafter:
“(a) Whether even after the rescission of Removal of Difficulties
Orders under Section 33-E of the Uttar Pradesh Secondary Education
Services Selection Board Act, 1982 (Act) (U.P. Act No. 5 of 1982),
with effect from 25 January 1999, the Committee of Management
retains the power to make ad hoc appointment against short term
vacancies only because it had published an advertisement for the
purpose prior to 25 January 1999;
(b) Whether on enforcement of Section 33-E of the Act rescinding the
Removal of Difficulties Orders issued earlier, the Committee of
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Management has lost all powers to make ad hoc appointment against
short term vacancies;
(c) Whether under Section 16-E of the Intermediate Education Act
1921 (Act of 1921), there is a power with the Committee of
Management to make ad hoc appointment against short term vacancies
and if so then for what period; and
(d) Whether the Division Bench in the case of Subhash Chandra
Tripathi v. State of U.P., Writ-A No. 70721 of 2010, decided on 14 July,
2014, has laid down the correct law.”
“20. We consequently answer the reference in the following terms:
(a) Despite the rescission of the Removal of Difficulties Orders by
Section 33-E of U.P. Act No. 13 of 1999 with effect from 25 January
1999, the power of the Committee of Management to make
appointments against short term vacancies, where the process of
appointment had been initiated prior to 25 January 1999 by the
publication of an advertisement, would continue to be preserved;
(b) On the enforcement of the provisions of Section 33-E, the power of
a Committee of Management to make ad hoc appointments against
short term vacancies would not stand abrogated in a case where the
process of selection had been initiated prior to 25 January 1999;
(c) Under Section 16-E of the Intermediate Education Act, 1921, the
Committee of Management is empowered to make an appointment
against a temporary vacancy caused by the grant of leave to an
incumbent for a period not exceeding six months or in the case of
death, termination or otherwise, of an incumbent occurring during an
educational session. An appointment made under sub-section (11) of
Section 16-E as provided in the proviso thereto shall, in any case, not
continue beyond the end of educational session during which the
appointment was made; and
(d) The judgment of the Division Bench in Subhash Chandra Tripathi
(supra) is affirmed as laying down a correct interpretation of the
judgment in A A Calton (supra).” (Emphasis supplied)
23. Learned Senior Advocate also placed reliance on a judgment
passed by a Coordinate Bench of this Court in Rajiv Kumar vs. State of
U.P. and others, 2024 SCC OnLine All 5843, wherein similar view was
taken.
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24. With regard to submission that recruitment process would
consider to begin with issuance of advertisement, learned Senior
Advocate for selected candidates referred a judgment passed by a
Constitution Bench of Supreme Court in Tej Prakash Pathak and others
vs. Rajasthan High Court and others, 2025(2) SCC 1 and relevant part
thereof is reproduced hereinafter:
“13. The process of recruitment begins with the issuance of
advertisement and ends with the filling up of notified vacancies. It
consists of various steps like inviting applications, scrutiny of
applications, rejection of defective applications or elimination of
ineligible candidates, conducting examinations, calling for interview or
viva voce and preparation of list of successful candidates for
appointment.”
xxxx
“65.1 Recruitment process commences from the issuance of the
advertisement calling for applications and ends with filling up of
vacancies;” (Emphasis supplied)
25. Learned Senior Advocate further submitted that in case of any
ambiguity in the opinion rendered by a Bench of lesser strength even of
Supreme Court, this Court would be legally entitled to follow a
judgment passed by a Larger Bench of the Supreme Court, i.e., in
present case the judgment passed by Constitution Bench in Tej Prakash
Pathak (supra), so far as above issue is concerned.
26. Learned Senior Advocate also submitted that it may be a case of
haste by giving appointment letter but haste may not be considered an
illegality and at the most it could be an irregularity, which can be
ignored, if otherwise the process was legally sustainable. Merely on a
ground that no election of Committee of Management was undertaken
for last many years, there would not be a vacuum and students of
College should not suffer due to non availability of Teachers.
27. Sri G.K. Singh, learned Senior Advocate assisted by Sri Avneesh
Tripathi, learned counsel for University has adopted above referred
arguments of learned Senior Advocate for selected candidates and
submitted that Writ-A No. 10333 of 2025 filed by petitioner-Sunil
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Writ A No. 10333 of 2025
Kumar Jain is liable to be dismissed not only on locus but on ground of
misjoinder of parties also. The University has already granted approval
to appointments and interim order was granted, without disclosing
misjoinder of parties.
28. Learned Senior Advocate appearing for Committee of
Management in Writ-A No. 5941 of 2026, has also adopted above
referred arguments made on behalf of selected candidates as well as
University that there was no illegality in selection process. Committee of
Management has took a decision for granting appointment on basis of
deeming clause since Vice Chancellor of University concerned has not
granted approval within stipulated time and, therefore, in terms of
proviso to Section 31(11)(c) of U.P. State Universities Act, 1973 that
there was a deemed approval for appointment of selected candidates,
approval was deemed to be granted. Selected candidates have already
joined and subsequently vide order dated 15.01.2025 Vice Chancellor of
the University has accorded approval also, therefore, at this stage at the
behest of petitioner-Sunil Kumar Jain, selected candidates cannot be
ousted specifically when there is no allegation that they were not duly
qualified or requisite procedure for selection was not followed.
29. Sri Sanjeev Singh, learned Additional Advocate General assisted
by Sri D.K. Singh, learned Additional Chief Standing Counsel and Sri
Saurabh, learned Standing Counsel appearing for State-Respondents, and
assisted the Court on legal issue, whether impugned order assailed in
first petition was legally sustainable or not. Learned Additional Advocate
General submitted that impugned order whereby selection process was
found to be legal since commenced prior to Act, 2023 came into force,
would not survive in the light of a judgment passed by Supreme Court in
Rachna Hills (supra) and he referred the discussion in reference to issue
no. 3 therein, which is already quoted in earlier paragraph of this
judgment. Learned Additional Advocate General has fairly placed
reliance on a judgment passed by Supreme Court in Government of
Andhra Pradesh and others vs. Sri Sevadas Vidyamandir High School
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and others, 2011(9) SCC 613 that in case recruitment process was
already begin, it may be protected.
30. Learned Senior Advocates for selected candidates, University and
Committee of Management, have objected the submission of learned
Additional Advocate General, being contrary to the counter affidavit
filed on behalf of State.
31. Now the Court proceeds to consider above submissions of
respective parties on referred issue.
32. There is no dispute so far as dates are concerned that Director,
Higher Education has accorded permission vide orders dated 04.08.2023
and 08.08.2023 to fill up 22 posts of Assistant Professors in College
concerned. In pursuance of permission the concerned College issued
advertisements on 08.08.2023 and 12.08.2023. Said permission was
recalled subsequently vide order dated 06.05.2024 passed by Secretary,
Higher Education, Government of U.P., which was subject matter of
challenge in earlier round of litigation and during pendency of said
litigation order dated 06.05.2024 was recalled by a subsequent order
dated 20.11.2024 and that Act, 2023 came into force with effect from its
gazette notification on 21.08.2023, i.e., subsequent to advertisement.
33. As referred above, in earlier round of litigation both orders
whereby permission was recalled and subsequent order whereby said
order was recalled were set aside and matter was remitted back to
concerned State Authority to pass a fresh order taking note of relevant
factors including the effect of repeal.
34. In above background, an order dated 21.04.2025 was passed by
the Principal Secretary, Higher Education, which is impugned in first
petition, whereby it was held that since publication of advertisement was
prior to enforcement of Act, 2023, therefore, it would not be illegal to
continue with selection process in terms of earlier Act of 1982 and not
by “Act, 2023”.
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Writ A No. 10333 of 2025
35. After considering rival submissions and judgments placed on
record, the Court finds that in Dr. Manoj Kumar Rawat (supra) an issue
was considered of fresh recommendation to change the place of posting
of a wait listed candidate and in such circumstance it was held that
earlier recommendation would not be protected after considering the
issue of effect of repeal of old Act and enforcement of new Act as well
as in terms of Section 6 of U.P. General Clauses Act, whereas in the
present case issue is process of a selection which was admittedly
commenced after due permission by publishing advertisement before
“Act, 2023” came into existence, therefore, the Court finds that the facts
of Dr. Manoj Kumar Rawat (supra) may not be applicable in the present
case.
36. Now the Court takes note of Rachna Hills (supra), however, finds
that it is distinguishable on facts and law as well. In present case there is
a “deemed approval” also, therefore, approval of Vice Chancellor of
University may not be necessary after stipulated time, whereas in
Rachna Hills (supra) there was no “deeming clause”. Further, in present
case it is the stand of State that selection procedure can be continued as
per old procedure even after Act, 2023 came into force, whereas in
Rachna Hills (supra) the opposition was of the Government. Other
distinguishable features are that in present case selection was started
with prior permission and in Rachna Hills (supra), there was an
amendment in the Act, whereas in present case a new Act, namely, Act,
2023 was enforced and earlier selection process can still be protected
under Repeal and Saving clause, which was done by the order impugned.
37. The Court finds that in given circumstances above referred both
judgments are not applicable.
38. Otherwise also there is a judgment passed by a Constitution Bench
in Tej Prakash Pathak (supra) wherein issue involved in present case was
was considered and it was held that process of recruitment begins with
issuance of advertisement and ends with filling of notified vacancies and
rules of game cannot be changed after it commenced, therefore, the
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Court finds that in given circumstances there would be no difficulty to
follow the judgment passed by Constitution Bench of Supreme Court in
Tej Prakash Pathak (supra) that recruitment process would commence
from the date of advertisement.
39. In aforesaid circumstances, the Court finds that in strict
interpretation the first petition filed by petitioner-Sunil Kumar Jain is not
maintainable on ground of non-joinder of parties. Still the referred issue
is answered that in facts and circumstances of present case, this Court
follows the judgment passed by a Constitution Bench of Supreme Court
in Tej Prakash Pathak (supra) and that the judgments passed by Supreme
Court in Dr. Manoj Kumar Rawat (supra) and Rachna Hills (supra)
would not be applicable in the present case. There is no allegation that
selected candidates were not qualified. Only on a ground that a writ
petition is pending from 2010 on a dispute of Committee of
Management, there may not be a vacuum as well as students of the
College concerned cannot be forced to suffer in absence of teaching
staff. The conditions imposed in permission was in anticipation and as
discussed above, the selection process was protected by provisions
“Repeal and Savings” of Act, 2023, therefore, such condition has no
legal consequence. No candidate has come forward being aggrieved by
the impugned decision, therefore, the Court finds that there is no
illegality in impugned order dated 21.04.2025. Since advertisements
were issued before Act, 2023 was enforced, therefore, procedure
applicable earlier vide Act of 2019 was followed and selection process
was found to be legal. Further, since approval has also been granted and
selected candidates are working, therefore, the outcome of above
discussion, on facts and law, is that no interference be caused in order
impugned in first petition.
40. In view of above, Writ-A No. 10333 of 2025 filed by petitioner-
Sunil Kumar Jain is dismissed. Interim order therein is vacated.
41. Consequently, orders impugned in Writ-A Nos. 5941 of 2026 and
5920 of 2026, i.e., orders dated 02.04.2026 and 26.02.2026 become non-
28
Writ A No. 10333 of 2025
est since they were passed on basis of interim order passed in Writ-A No.
10333 of 2025 and its legal consequence shall follow.
4 2 . Writ-A Nos. 5941 of 2026 and 5920 of 2026 are accordingly
disposed of.
43. Writ-C No. 45787 of 2010 (Atul Kumar Jain vs. State of U.P. and
others) be listed in third week of July at 12.30 PM before appropriate
Bench for final hearing.
May 29, 2026
AK
(Saurabh Shyam Shamshery,J.)
Digitally signed by :-
AWADESH KUMAR
High Court of Judicature at Allahabad