Bihari Lal Rastogi vs State Of U.P. Through Secy. Transport Deptt. Lko. And Ors.
- Court
- Allahabad High Court
A.F.R.
Neutral Citation No. -
2026:AHC-LKO:76487
Reserved on: 12.08.2026
Delivered on: 24.10.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT - A No. - 2904 of 2013
Bihari Lal Rastogi
…..Petitioner(s)
Versus
State of U.P. Through Secy. Transport Deptt. Lko. and Ors.
…..Respondent(s)
Counsel for Petitioner(s) : Subhash Chandra Ojha, Deepak
Dwivedi, Dr. Manoj Dubey, Manish
Jauhari, Radhika Singh, Richa
Mishra, Rishabh Raj, Saksham
Singh, Sheshnath Bhardwaj Advoc
Counsel for Respondent(s) : C.S.C.,
Court No. - 4
HON'BLE IRSHAD ALI, J.
1. Heard Mrs. Radhika Singh, learned counsel for the petitioner and
learned Standing Counsel for the respondent – State.
2. The present writ petition has been filed on following prayers:
“(i) Issue a writ, order or direction in the nature of Certiorari
quashing the impugned order dated 26.11.2012 passed by the
opposite party no.3 as contained in Annexure No.1 to this writ
petition.
(ii) Issue a writ, order or direction in the nature of Mandamus
commanding and directing the opposite parties to issue
appointment letter to the petitioner for the post of Enforcement
Constable being a regularly selected candidate against the
lying vacant post at present.
(iii) Issue a writ, order or direction in the nature of Mandamus
commanding and directing the opposite parties to allow the
petitioner to continue to discharge his service from the post of
Enforcement Constable against the vacant post with arm
license consequential benefits.
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(iv) Issue any other writ, order or direction which this Hon'ble
Court may deem fit and proper under the circumstances of the
case.
(v) Allow the writ petition with costs in favour of the
petitioner.”
3. Factual matrix of the case is that opposite party no.2, namely, the
Transport Commissioner, Uttar Pradesh, published an advertisement
dated 10.08.2004 in the daily newspaper Dainik Jagran on 12.08.2004,
inviting applications from eligible candidates for appointment against
the existing as well as forthcoming vacancies on the post of Enforcement
Constable. Pursuant to the said advertisement, the petitioner submitted
his candidature and appeared before the departmental Selection
Committee for interview and physical fitness test on 18.01.2005. The
result of the selection process was declared in the last week of March,
2005.
4. It is further pleaded that the selection list was prepared on
24.03.2005 and was displayed on the notice board on 28.03.2005. The
name of the petitioner figured at Serial No.54 in the select list of
candidates belonging to the Other Backward Classes (OBC) category.
According to the petitioner, at the time of issuance of the advertisement
dated 10.08.2004, there were 50 posts of Enforcement Constable
earmarked for the OBC category. By the time the final result was
declared, five additional vacancies were stated to have arisen and,
accordingly, the select list contained the names of 55 candidates. It is
also the case of the petitioner that there was no provision for preparation
of a waiting list.
5. The petitioner has further pleaded that, prior to the aforesaid
selection, the Government of Uttar Pradesh, vide Government Order
No.2118/Thirty-3-2003-3B/2002 dated 18.07.2003, had created 114
additional posts of Enforcement Constable. According to the petitioner,
the said additional posts continued to remain vacant and available for
appointment.
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6. It is stated that after declaration of the select list, the petitioner
submitted a representation dated 14.10.2005, followed by reminders
dated 02.12.2005 and 27.12.2005, requesting the authorities to consider
his candidature for appointment to the post of Enforcement Constable
against the vacancies available under the Backward Class/OBC
reservation quota. According to the petitioner, despite the representations
and reminders, no appointment was offered to him.
7. The petitioner has further stated that, in February, 2006, one Bal
Govind Upadhyay instituted Writ Petition No.1642 (S/S) of 2006 before
this Court seeking a direction for his appointment. Thereafter, the
opposite parties issued a fresh advertisement dated 11.03.2006 inviting
applications for appointment to the post of Enforcement Constable. The
said subsequent advertisement was challenged by Bal Govind Upadhyay
by instituting Writ Petition No.2148 of 2006.
8. It is further pleaded that Imamuddin, who was also a selected
candidate from the same select list in which the petitioner had been
selected, instituted Writ Petition No.6809 (S/S) of 2005 as well as Writ
Petition No.2345 of 2006, seeking relief for appointment. Both the
aforesaid writ petitions were allowed by this Court vide order dated
03.05.2006. By the said order, the respondents were directed to consider
the petitioner therein for appointment against the vacancy which was
available at the time of the original advertisement on account of the
death of one Munish Kumar Pandey. It was further directed that, in case
the said vacancy had subsequently been filled up pursuant to a
subsequent advertisement, the petitioner therein was to be appointed by
creating a supernumerary post of Enforcement Constable. The Court
further directed that the appointee would be placed in the seniority list
immediately below the candidate placed at Serial No.17 in the select list
and that his appointment would carry service benefits from the date on
which the other candidates selected pursuant to the same select list had
been appointed.
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9. It is the further case of the petitioner that, in order to ascertain the
action taken by the authorities on his representations, he submitted an
application under the Right to Information Act. During the course
thereof, the Additional Transport Commissioner (Enforcement) passed
an order dated 02.03.2007 rejecting a representation purportedly dated
09.11.2006. The petitioner asserts that he had never submitted any
representation dated 09.11.2006. According to the petitioner, the order
dated 02.03.2007 was, therefore, passed on the basis of an incorrect
factual premise and reflects non-application of mind on the part of the
authority.
10. It is further pleaded that Writ Petition No.1642 (S/S) of 2006 filed
by Bal Govind Upadhyay was also ultimately allowed by this Court and,
pursuant thereto, he was granted appointment on 20.08.2009. The
petitioner relies upon the said development as being relevant to his claim
for similar consideration on the basis of the same selection process.
11. Thereafter, the petitioner instituted Writ Petition No.6515 of 2008
(S/S) before this Court. The said writ petition was disposed of vide order
dated 26.08.2011, whereby the respondents were directed to reconsider
the petitioner's case in the light of the judgment rendered by this Court in
Writ Petition No.6809 of 2005 (S/S).
12. Pursuant to the aforesaid order dated 26.08.2011, the petitioner
submitted a representation dated 04.04.2012 before the competent
authority along with a copy of the order passed by this Court. The said
representation was, however, rejected by opposite party no.3 vide order
dated 26.11.2012. Aggrieved by the aforesaid rejection and asserting that
his claim for appointment had not been considered in accordance with
the directions issued by this Court and in the light of the treatment
accorded to similarly situated selected candidates, the petitioner has
approached this Court by filing the present writ petition.
13. While entertaining the writ petition, this Court framed following
three points for consideration vide order dated 12.08.2026:
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a) Whether the petitioner being placed at Sr. No. 54 can be
considered for appointment in view of fact that two persons,
namely, Imamuddin and Bal Govind filed writ petition before this
Court, wherein direction was issued for consideration of their
claim for appointment on the post of Enforcement Constable and
in pursuance thereof, against two vacancies, which came into
existence during selection year due to death of two incumbents,
Imamuddin and Bal Govind have been given appointment;
b) once the petitioner was placed at Sr. No.54 in the select list and
30 vacancies, which were advertised but could not be filled up,
were available for appointment, against available vacancies claim
of the petitioner would have been considered for appointment or
not;
c) in the advertisement it was stipulated that there shall be
reservation of 25% quota for vacancies which came into existence
during selection year and in accordance with that the vacancies
shall be increased.
14. At the outset, in answer to the first query framed by this Hon’ble
Court, learned counsel for the petitioner submits that the petitioner was
placed at Serial No.54 in the select list comprising 55 candidates of the
OBC category and, therefore, was admittedly a duly selected candidate
forming part of the very same selection process conducted by the
respondents. It is submitted that the respondents proceeded to appoint
candidates up to Serial No.52, whereas the petitioner and certain other
candidates included in the same select list were denied appointment.
Thus, the petitioner cannot be treated as a person who was outside or
unconnected with the selection process; rather, his candidature stood
duly adjudged and included in the select list prepared by the competent
authority.
15. She further submits that the cases of Imamuddin and Bal Govind
are directly relevant and have a material bearing upon the petitioner’s
claim. Both the said candidates were similarly situated candidates
connected with the same selection process and had approached this
Hon’ble Court seeking consideration of their claims. Pursuant to the
directions issued by this Hon’ble Court, they were granted appointment
against vacancies which became available during the relevant selection
year. The appointments so granted are relied upon by the petitioner as
instances of similarly situated candidates who were considered and
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appointed against vacancies becoming available during the currency of
the relevant selection process.
16. She submitted that the respondents themselves have admitted that
additional names were retained in the merit/select list and that, against
the originally advertised vacancies, 52 candidates were ultimately
appointed, including two appointments made against vacancies which
arose during the relevant period. The aforesaid admission of the
respondents assumes considerable significance, as it demonstrates that
the respondents themselves recognized and acted upon the principle that
vacancies arising during the relevant selection year could be utilized for
making appointments from amongst the candidates included in the select
list.
17. She submitted that the appointment of Imamuddin and Bal
Govind, therefore, cannot be brushed aside as an isolated or exceptional
circumstance. Their appointments demonstrate the manner in which the
respondents themselves understood and implemented the recruitment
process, namely, that vacancies becoming available during the relevant
selection year could be utilized for appointment of candidates from the
select list. Once the respondents themselves adopted such course in the
cases of similarly situated candidates, the petitioner’s claim was required
to be examined on the same basis and in accordance with his merit
position.
18. She submitted that the petitioner’s case, in fact, stands on an even
stronger footing. The petitioner belongs to the OBC category and was
placed at Serial No.54 in the OBC select list, whereas as many as 30
vacancies of the OBC category had been advertised but remained
unfilled. The existence of the aforesaid vacancies was specifically
pleaded by the petitioner and constituted a material circumstance directly
relevant to the determination of his claim. The respondents were,
therefore, under an obligation to examine whether the petitioner could be
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accommodated against such vacancies in accordance with his merit and
the applicable recruitment provisions.
19. She submitted that particular significance attaches to the earlier
order dated 26.08.2011 passed by this Hon’ble Court in Writ Petition
No.6515 (S/S) of 2008, whereby the respondents were directed to
reconsider the petitioner’s claim in the light of the judgment rendered in
the case of Imamuddin Vs. State of U.P. and Others and, in the event a
vacancy of the same selection year was available, to consider the
petitioner’s claim for appointment. The said order constituted a specific
direction requiring the respondents to undertake a meaningful
reconsideration of the petitioner’s claim and could not have been
complied with by merely reiterating the earlier stand without examining
the relevant vacancies and the petitioner’s merit position.
20. She submitted that, in view of the aforesaid order dated
26.08.2011, the respondents were required first to examine whether
vacancies of the relevant selection year were available and thereafter to
consider the petitioner’s claim in accordance with his merit position and
the applicable rules. However, instead of undertaking such exercise in its
proper perspective, the respondents rejected the petitioner’s claim
without duly considering the material circumstance that OBC vacancies
were available and had remained unfilled. Such non-consideration of a
relevant and material fact renders the decision-making process legally
unsustainable.
21. She next submitted that the petitioner is not claiming any
preferential treatment or appointment in supersession of a candidate
having higher merit. The petitioner’s limited and legitimate claim is that,
having been placed at Serial No.54 in the OBC select list, his
candidature was required to be considered strictly in accordance with his
merit against available OBC vacancies, particularly when the
respondents themselves had operated the select list and made
appointments against vacancies which arose during the relevant selection
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year. The petitioner thus seeks only equal and lawful consideration of his
candidature and does not seek any relaxation of the applicable rules.
22. She submitted that the appointment of Imamuddin and Bal
Govind, therefore, has to be examined in its proper factual and legal
context. Their appointments demonstrate that the respondents themselves
treated vacancies arising during the selection year as capable of being
utilized for appointment of candidates included in the relevant select list.
In the petitioner’s case, there was the additional circumstance of 30 OBC
vacancies which had remained unfilled. Consequently, the respondents
were required to determine whether the petitioner, being placed at Serial
No.54 in the OBC select list, could be accommodated against any such
available vacancy in accordance with the applicable rules and his
position in the merit list.
23. So far as the second question framed by this Court is concerned,
learned counsel for the petitioner submits that the same goes to the very
root of the controversy. The petitioner was placed at Serial No.54 in the
OBC select list, whereas 30 OBC vacancies had been advertised on
21.05.2004 but no selection was made against the said vacancies. The
existence of these vacancies was, therefore, not an irrelevant or
extraneous circumstance; rather, it was a vital fact which the respondents
were bound to take into consideration while examining the petitioner’s
claim. The respondents could not lawfully disregard the said vacancies
without disclosing as to how and against whom such vacancies were
subsequently filled or otherwise dealt with.
24. She submitted that, significantly, the respondents themselves have
admitted that the appointments ultimately made were not confined
strictly to the original number of vacancies and that 52 candidates were
appointed, including two candidates against vacancies which, according
to the respondents themselves, had arisen during the relevant period. The
aforesaid admission clearly demonstrates that the respondents did, in
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fact, take into account vacancies arising during the relevant period while
operating the select list.
25. She next submitted that once the respondents accepted and acted
upon the principle that vacancies arising during the relevant selection
period could be utilized for making appointments from the select list, the
petitioner’s claim could not have been rejected without undertaking a
corresponding exercise in respect of the available OBC vacancies. The
petitioner’s candidature was required to be examined strictly in
accordance with his position in the merit list and the applicable rules,
rather than being rejected mechanically merely because he stood beyond
the initially advertised number of vacancies.
26. She submitted that the respondents have failed to furnish any
satisfactory, cogent or legally sustainable explanation as to why, despite
the existence of the aforesaid 30 unfilled OBC vacancies, the petitioner,
who was placed at Serial No.54 in the OBC select list, was not
considered for appointment. The mere assertion that the petitioner stood
beyond the initial 50 advertised vacancies cannot, by itself, constitute a
valid answer to the petitioner’s claim, particularly when the respondents
themselves had prepared a select list containing candidates beyond the
originally advertised vacancies and had subsequently made appointments
against vacancies arising during the relevant period.
27. She further submitted that the petitioner’s claim is fortified by the
fact that the respondents themselves prepared a select list containing 55
candidates against 50 advertised OBC vacancies. The inclusion of the
petitioner at Serial No.54 was, therefore, neither accidental nor
extraneous to the selection process. His candidature was duly considered
by the competent authority and was included in the merit/select list
prepared by the respondents themselves. Having once included the
petitioner in the select list, the respondents were required to consider his
candidature in accordance with the governing rules whenever vacancies
legitimately became available for operation of the select list.
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28. She submitted that, accordingly, when the existence of the 30
unfilled OBC vacancies is considered conjointly with the petitioner’s
position at Serial No.54 in the OBC select list, it becomes evident that
the petitioner’s claim required a proper and objective consideration. The
respondents were required to undertake an exercise as to the availability
and utilization of the vacancies and thereafter determine, in accordance
with the applicable rules, whether the petitioner could be appointed
against any such vacancy on the basis of his merit position.
29. Lastly, with regard to the third and final question framed by this
Court, learned counsel for the petitioner submits that the advertisement
itself contained a stipulation regarding 25% of vacancies arising during
the selection year. The said stipulation was evidently incorporated to
take care of vacancies which might arise during the relevant selection
year and to enable the recruitment process to address such vacancies in
accordance with the prescribed mechanism.
30. She submitted that the respondents themselves placed reliance
upon the aforesaid provision in their counter affidavit while explaining
the preparation of the select list containing candidates beyond the
originally advertised vacancies. Having relied upon the said provision to
justify the preparation and operation of the select list, the respondents
cannot now adopt a contrary and inconsistent position by ignoring the
vacancies which arose during the relevant selection year while
considering the petitioner’s claim. The respondents cannot be permitted
to approbate and reprobate in respect of the same recruitment provision.
31. She submitted that, in the present case, the petitioner was placed at
Serial No.54 in the OBC select list against the original 50 advertised
OBC vacancies. The preparation of a select list containing 55 candidates
itself demonstrates that the recruitment process contemplated a
mechanism for dealing with vacancies beyond the initially advertised
number, including vacancies arising during the relevant selection year.
Therefore, the petitioner’s inclusion in the select list was a material
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circumstance which required consideration while examining his
entitlement against subsequent or otherwise available vacancies.
32. She submitted that once vacancies arose during the selection year,
the same were required to be dealt with in accordance with the aforesaid
provision contained in the advertisement and the applicable rules. The
candidates whose names had been included in the merit/select list were
consequently required to be considered according to their inter se merit
and category position, subject of course to the statutory and recruitment
conditions governing such appointments. The petitioner could not have
been excluded from such consideration without assigning a legally
sustainable reason.
33. She next submitted that the respondents, having themselves
utilized vacancies arising during the selection year for making
appointments in the cases of Imamuddin and Bal Govind, could not
adopt a contradictory approach in the petitioner’s case and deny him
consideration without first determining the availability and utilization of
vacancies and examining the applicability of the 25% provision in its
correct perspective. Such inconsistent treatment, particularly in relation
to candidates arising from the same selection process, calls for judicial
scrutiny and appropriate relief in favour of the petitioner.
34. She, therefore, submitted that the three questions framed by this
Hon’ble Court, when considered cumulatively and in their proper factual
and legal perspective, lead to the inevitable conclusion that the
petitioner’s claim required consideration in accordance with his merit
position and the applicable recruitment provisions. The petitioner was
placed at Serial No.54 in the OBC select list; 30 OBC vacancies had
remained unfilled; the respondents had themselves utilized vacancies
arising during the selection year for making appointments; and the
advertisement itself contained a provision contemplating vacancies
arising during the selection year. In such circumstances, the petitioner
could not have been denied consideration merely on the ground that his
serial number was beyond the initial number of advertised vacancies.
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35. On the other hand, learned Standing Counsel for the respondent –
State submitted that the writ petition filed by the petitioner is devoid of
merit and does not disclose any legally enforceable right in his favour. It
is submitted that the representation dated 09.10.2006 submitted by the
petitioner was duly considered by the competent authority and was
disposed of vide letter dated 03.11.2006. By the said communication, the
petitioner was specifically informed that applications submitted by a
total number of 6380 candidates were found valid and, after conducting
the requisite interviews, the merit list was prepared in accordance with
the prescribed procedure. It is further submitted that, apart from the
candidates selected against the advertised vacancies, certain additional
candidates were placed in the merit list so that, in the event any selected
candidate failed to join, did not take over charge, died during the
relevant period, or otherwise declined to join service, the resultant
vacancy could be filled from amongst the candidates standing higher in
merit. However, in the present case, all the selected candidates had
joined service during the months of March/April, 2005 and no vacancy
in the reserved category of Other Backward Classes remained available
after 30.06.2005. Consequently, there was no occasion or vacancy
against which the petitioner could have been considered for
appointment. The representation of the petitioner was, therefore, rightly
rejected by the competent authority.
36. Learned Standing Counsel further submits that mere inclusion of a
candidate's name in a merit list does not confer an indefeasible or vested
right to appointment. Appointment can be claimed only against an
available vacancy and subject to the applicable recruitment rules and the
selection made by the competent authority. In the present case, the
petitioner was neither included amongst the finally selected candidates
against the advertised vacancies nor was he selected for appointment
against any existing post. Thus, in the absence of any vacant post
available for appointment, the petitioner cannot claim appointment as a
matter of right merely on the basis of his alleged position in the merit
list. It is well settled that a select or merit list by itself does not create an
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absolute right to appointment where no vacancy is available and the
competent authority has already exhausted the advertised vacancies.
37. Learned Standing Counsel submits that the reliance, if any, placed
by the petitioner upon the case of Sri Imamuddin is wholly misplaced
and misconceived. Sri Imamuddin was not included in the select list of
the General Category candidates; rather, his name figured in the merit
list of General Category candidates. Subsequently, on account of the
death of Sri Munish Kumar Pandey, who was working as Enforcement
Constable, one post became vacant prior to 30.06.2005. It was in the
aforesaid peculiar factual circumstances that this Hon'ble Court passed
an order directing consideration/appointment of Sri Imamuddin. The said
order was passed on the basis of the facts and circumstances peculiar to
that case and cannot be treated as conferring any automatic right upon
the present petitioner. In the case of the petitioner, admittedly, no
vacancy of the relevant category became available within the period
during which the concerned merit list remained operative and, therefore,
the petitioner cannot claim parity with Sri Imamuddin.
38. Learned Standing Counsel further submits that the recruitment to
the post in question is governed by the provisions of the U.P. Transport
Department Enforcement Employees Cadre (Group 'D') Service
Rules, 1979 and the rights of the petitioner are necessarily required to be
examined in the light of the said statutory rules. It is submitted that Rule
30(j) defines the expression “Recruitment Year” as the period of twelve
months of a calendar year commencing from the first day of July. Thus,
the recruitment process pertaining to a particular recruitment year has to
be considered within the framework of the vacancies determined for that
recruitment year. The merit list relied upon by the petitioner was not a
select list conferring an indefeasible right of appointment and, in any
event, its operative period came to an end on 30.06.2005. After expiry of
the relevant recruitment year, the petitioner could not claim appointment
against vacancies pertaining to a subsequent recruitment year on the
strength of the earlier merit list.
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39. Learned Standing Counsel submits that the vacancies against
which recruitment is to be undertaken are determined for the relevant
recruitment year and the selection process is conducted against such
vacancies. In the present case, the recruitment process was initiated in
respect of the vacancies determined for the recruitment year 2004-05.
The candidates, including Sri Bihari Lal Rastogi, were considered in the
said recruitment process against the vacancies determined for that
particular recruitment year. Once the vacancies pertaining to the
recruitment year 2004-05 stood exhausted and the selected candidates
had joined pursuant to the said selection, no candidate from the earlier
merit list could claim appointment against vacancies determined
subsequently for the recruitment year 2005-06. The petitioner, therefore,
cannot seek to carry forward his claim from one recruitment year to
another or claim appointment against a vacancy pertaining to a
subsequent recruitment year on the basis of a previous selection process.
40. Learned Standing Counsel, accordingly, submits that the petitioner
has failed to establish the existence of any subsisting vacancy against
which he could legally claim appointment. The representation dated
09.10.2006 was duly considered and appropriately disposed of by the
competent authority vide order/communication dated 03.11.2006 and the
reasons communicated therein are consistent with the applicable
recruitment framework and the factual position existing on the relevant
date. No arbitrariness, illegality or violation of any enforceable right of
the petitioner has been demonstrated. The petitioner cannot claim
appointment merely on the basis of his alleged position in the merit list,
particularly when the advertised vacancies had already been filled and
the selected candidates had joined service. The grounds urged by the
petitioner, therefore, have no legal or factual force and the writ petition,
being devoid of merit, is liable to be dismissed.
41. I have considered the submissions advanced by learned counsel
for the parties and perused the material on record.
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42. Having considered the submissions advanced by learned counsel
for the parties, the pleadings available on record and the three questions
framed by this Court vide order dated 12.08.2026, this Court finds that
the controversy requires examination not merely from the standpoint of
whether inclusion of a candidate's name in a select list confers an
indefeasible right to appointment, but also from the standpoint of
whether the respondents have acted fairly, consistently and in accordance
with the recruitment conditions governing the selection in question. The
petitioner's claim is founded upon his placement at Serial No.54 in the
OBC select list, the alleged availability of 30 unfilled OBC vacancies,
the provision contained in the advertisement concerning vacancies
arising during the selection year and the appointments granted to
Imamuddin and Bal Govind pursuant to orders passed by this Court.
These circumstances, taken cumulatively, required a meaningful and
objective consideration by the competent authority. The rejection of the
petitioner's claim, therefore, must be tested against these material
considerations.
43. The first question framed by this Court concerns the effect of the
appointments granted to Imamuddin and Bal Govind and whether the
petitioner, whose name figured at Serial No.54 in the OBC select list, is
entitled to the benefit of the principle underlying the relief granted to
those candidates. The material placed before this Court indicates that
Imamuddin was a candidate connected with the same selection process
and that, by order dated 03.05.2006 passed in Writ Petition No.6809
(S/S) of 2005 and Writ Petition No.2345 of 2006, this Court directed
consideration of his claim against a vacancy which had arisen on account
of the death of Munish Kumar Pandey. The Court further provided that,
if the vacancy had already been filled pursuant to a subsequent
advertisement, consideration of his claim would extend to appointment
against a supernumerary post, together with the specified seniority and
service benefits. Similarly, Bal Govind Upadhyay was granted
appointment on 20.08.2009 pursuant to the orders passed in his writ
proceedings. These developments are relevant because they demonstrate
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that the respondents did not invariably treat the expiry of the original
selection exercise or the filling of vacancies under a subsequent
recruitment as an absolute bar to relief in every circumstance.
44. This Court is conscious of the settled principle that mere inclusion
of a candidate's name in a select list does not, by itself, confer an
indefeasible right to appointment. Equally, however, the said principle
does not absolve the recruiting authority of its obligation to act fairly,
consider relevant material and apply the governing recruitment
provisions consistently. The petitioner's claim cannot be accepted merely
because Imamuddin and Bal Govind obtained relief in their respective
proceedings; nor can their cases be disregarded solely on the ground that
the relief was granted by judicial orders in separate petitions. The proper
inquiry is whether the material circumstances underlying those
appointments have a bearing upon the petitioner's claim and whether the
respondents have lawfully distinguished his case. In the present matter,
the petitioner's candidature arose from the same recruitment process, his
name was included in the select list and his claim specifically concerns
vacancies alleged to have remained unfilled or to have arisen during the
relevant selection year. The respondents were, therefore, required to
examine the claim in that factual and legal context rather than reject it by
a general reference to the absence of an indefeasible right to
appointment.
45. The objection raised by learned Standing Counsel that Imamuddin
belonged to the General Category and that his appointment arose from
the death of a particular incumbent does not, by itself, furnish a complete
answer to the petitioner's claim. The petitioner does not claim that the
category, merit position or individual circumstances of Imamuddin must
be treated as identical in every respect. His case is that the respondents
permitted the select list to be operated in circumstances involving
vacancies arising during the relevant period and that the same
recruitment framework required an objective examination of his own
candidature. The distinction between the category-wise position of a
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candidate and the legal principle governing the operation of a select list
must be maintained. Any appointment to the petitioner would necessarily
remain subject to his OBC category, inter se merit, the applicable
reservation provisions and the relevant recruitment rules. Nevertheless,
the respondents could not avoid examining these aspects merely by
asserting that the circumstances of Imamuddin were peculiar to his case.
46. The subsequent appointment of Bal Govind also assumes
significance in the context of the petitioner's contention that candidates
associated with the same selection process obtained relief through this
Court and were ultimately appointed. The said appointment does not
automatically establish that the petitioner must be appointed irrespective
of the availability of a lawful vacancy. It does, however, reinforce the
necessity of examining whether the petitioner's case was considered in
the light of the relevant judicial directions, the recruitment conditions
and the actual vacancy position. The principle of equality does not
require repetition of an order without examining its legal foundation;
equally, it does not permit materially similar claims to be rejected by an
unexplained departure from the approach adopted in comparable
circumstances. The respondents were, thus, required to record a reasoned
determination distinguishing the petitioner's case, if they considered such
distinction legally material.
47. The second question concerns the petitioner's placement at Serial
No.54 in the OBC select list and his assertion that 30 OBC vacancies
advertised on 21.05.2004 remained unfilled. The petitioner has
specifically contended that the original recruitment process contemplated
50 OBC vacancies, that the select list contained 55 candidates and that
appointments were made up to Serial No.52, leaving his candidature and
that of certain other candidates without appointment. He has further
asserted that 30 OBC vacancies remained unfilled. If the said vacancies
were indeed available for recruitment under the relevant selection
process, their existence would constitute a material circumstance
requiring examination of the petitioner's claim according to his merit and
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category. The authority could not properly dispose of the claim without
ascertaining whether those vacancies existed, whether they formed part
of the relevant recruitment exercise and whether they remained available
for lawful appointment.
48. The respondents, on the other hand, have asserted that all selected
candidates joined during March and April 2005 and that no vacancy in
the OBC category remained available after 30.06.2005. They have also
stated that additional names were included in the merit list to provide for
contingencies such as non-joining, death or refusal by a selected
candidate to assume charge. These submissions raise a factual issue that
cannot be resolved merely by accepting the respondents' general
assertion that the vacancies had been exhausted. The material question is
whether the 30 OBC vacancies pleaded by the petitioner were available
within the relevant recruitment framework and, if so, how they were
dealt with. The respondents were in a position to explain the
determination, allocation and utilization of the vacancies through the
relevant recruitment records. A conclusion that no vacancy was available
required consideration of the petitioner's specific assertion and the
material relied upon by the parties. A bare statement that all selected
candidates had joined does not, without more, explain the separate
assertion concerning the unfilled OBC vacancies.
49. It is also material that the respondents have acknowledged the
preparation of a merit list containing additional candidates and have
referred to appointments made against vacancies which arose during the
relevant period. The petitioner relies upon the appointment of 52
candidates, including two candidates against vacancies arising during the
relevant period, to contend that the respondents themselves considered
vacancies beyond the initially advertised number. This circumstance
cannot be treated as conclusive proof that every vacancy arising during
the relevant period was available for appointment from the same select
list. The nature, category, timing and legal basis of each vacancy would
still have to be established. Nevertheless, the respondents' own
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explanation makes it necessary to examine the operation of the select list
and the treatment of vacancies in a coherent manner. The petitioner's
claim could not be rejected solely on the ground that his serial number
was beyond the initial number of advertised posts, without addressing
the alleged unfilled vacancies and the recruitment provision relied upon
by him.
50. The third question concerns the stipulation in the advertisement
relating to 25% of vacancies arising during the selection year. The
petitioner submits that the said stipulation contemplated an increase in
the vacancies to be dealt with under the recruitment process and that the
respondents themselves relied upon the provision while explaining the
preparation of a select list containing names beyond the originally
advertised vacancies. The precise effect of this stipulation must be
determined in accordance with its actual language and the applicable
statutory rules. It cannot be assumed, without examining those
provisions, that every vacancy arising during the selection year
automatically became available for appointment from the existing select
list. Equally, the respondents cannot disregard the stipulation if it
governed the selection and the relevant vacancies fell within its scope.
The authority was required to determine the applicability of the 25%
provision, identify the vacancies covered by it and examine the
petitioner's entitlement, if any, in accordance with his merit and category
position.
51. The submission of learned Standing Counsel founded upon Rule
30(j) of the U.P. Transport Department Enforcement Employees Cadre
(Group 'D') Service Rules, 1979, defining the recruitment year as a
period of twelve months commencing on the first day of July, is also
required to be considered in this context. The recruitment year and the
period during which a select list may lawfully be operated are relevant
considerations. A candidate cannot claim appointment against a vacancy
of a subsequent recruitment year merely because his name appeared in a
list prepared for an earlier year, unless the applicable rules or a binding
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judicial direction permit such relief. However, the petitioner's case is not
confined to a demand for appointment against an unrelated vacancy
arising in a later recruitment year. He specifically relies upon vacancies
said to have been available or to have arisen during the relevant selection
year and upon the advertisement's provision governing such vacancies.
The question, therefore, is whether the respondents correctly identified
the relevant recruitment year and properly applied the provision
concerning vacancies arising during that period. The mere invocation of
Rule 30(j), without addressing the specific vacancies pleaded and the
relevant stipulation in the advertisement, does not conclusively resolve
the controversy.
52. This Court also finds significance in the earlier order dated
26.08.2011 passed in Writ Petition No.6515 (S/S) of 2008, whereby the
respondents were directed to reconsider the petitioner's case in the light
of the judgment rendered in Writ Petition No.6809 of 2005 (S/S),
including the question whether a vacancy of the same selection year was
available. The direction required a genuine reconsideration of the
petitioner's claim in the light of the identified precedent and the relevant
vacancy position. Compliance with such a direction cannot be reduced to
a formal repetition of the conclusion reached earlier, without addressing
the matters that the Court required the authority to examine. The
rejection order dated 26.11.2012 was, therefore, required to demonstrate
that the petitioner's claim had been considered in the light of the earlier
judicial direction, the applicability of the principle in Imamuddin, the
position of the petitioner in the OBC select list and the availability of
vacancies of the relevant selection year.
53. The record, as presented in the material before this Court, further
indicates that the petitioner had approached the authorities through
representations and reminders and had thereafter sought reconsideration
pursuant to the order dated 26.08.2011. His representation dated
04.04.2012 was rejected vide order dated 26.11.2012. The petitioner has
also questioned the earlier communication dated 02.03.2007 on the
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ground that it proceeded on the basis of a representation dated
09.11.2006 which, according to him, he had never submitted. In the
circumstances, the decisive consideration is whether the competent
authority examined the petitioner's actual claim and the relevant
material, rather than whether a communication was issued in response to
a representation. Administrative disposal of a claim must be substantive
and reasoned where the claim involves a specific judicial direction and
material questions concerning vacancies and the operation of a select
list. A decision which fails to address those questions cannot be
sustained merely because the authority has communicated its conclusion.
54. The Court is mindful of the objection that judicial review cannot
be used to compel appointment where no vacancy lawfully exists or
where the recruitment rules do not permit appointment from the select
list. The relief granted in the present matter must, therefore, remain
consistent with the statutory recruitment framework. Nevertheless, the
principle that a select list creates no indefeasible right cannot be
employed as a substitute for examining a claim founded upon an
allegedly available vacancy and a specific direction for reconsideration.
The petitioner seeks the benefit of the treatment extended to Imamuddin
and Bal Govind, but such claim must be considered subject to the
petitioner's own category and merit position and the conditions
governing the recruitment. The respondents were not required to appoint
the petitioner in disregard of candidates higher in merit or contrary to the
reservation rules; they were, however, required to consider his claim
fairly and in accordance with the same governing framework.
55. Upon cumulative consideration of the aforesaid circumstances,
this Court finds that the petitioner's claim raises a substantial issue
concerning the consistent application of the recruitment conditions, the
treatment of vacancies arising during the relevant selection year and
compliance with the earlier direction dated 26.08.2011. The petitioner's
placement at Serial No.54 in the OBC select list, the alleged availability
of 30 unfilled OBC vacancies, the provision concerning 25% of
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vacancies arising during the selection year and the appointments granted
to Imamuddin and Bal Govind were all relevant matters for
consideration. The rejection of the petitioner's claim could not lawfully
rest only upon the general proposition that inclusion in a select list does
not confer an indefeasible right to appointment. The respondents were
required to determine the actual vacancy position, apply the relevant
recruitment provisions and explain, on legally sustainable grounds, why
the petitioner's claim did or did not merit the benefit sought.
56. In view of the foregoing discussion, this Court is of the considered
opinion that the rejection order dated 26.11.2012 cannot be sustained
insofar as the petitioner's claim was required to be examined in the light
of the earlier judicial direction, the relevant vacancy position and the
recruitment provision concerning vacancies arising during the selection
year.
57. The writ petition, accordingly, deserves to be allowed and is
hereby allowed . The impugned order dated 26.11.2012 passed by
opposite party no.3 is hereby quashed .
58. The respondents are directed to extend to the petitioner the benefit
of the principle underlying the relief granted in the cases of Imamuddin
and Bal Govind, subject to the petitioner's OBC category, merit position
and the applicable recruitment provisions. The respondents shall
determine the petitioner's entitlement against the vacancies of the
relevant selection year in accordance with the advertisement and the
governing service rules and shall not deny the claim merely on the
ground that his name appeared at Serial No.54 in the select list. If, upon
such determination, the petitioner is found entitled to appointment, the
respondents shall issue the necessary appointment order and extend the
consequential service benefits consistent with the treatment accorded to
the aforesaid candidates and the directions contained in their respective
cases, subject to the applicable rules and the terms of the relevant
judicial orders.
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57. The aforesaid exercise shall be completed by the competent
authority within a period of three months from the date a certified copy
of this judgment is produced before it.
58. The authority shall pass a reasoned order addressing the
petitioner's merit position, the availability and utilization of vacancies of
the relevant selection year, the applicability of the 25% provision
contained in the advertisement and the relevance of the cases of
Imamuddin and Bal Govind.
59. There shall be no order as to costs.
(Irshad Ali,J.)
October 24, 2026
Adarsh K Singh
Digitally signed by :-
ADARSH KUMAR SINGH
High Court of Judicature at Allahabad,
Lucknow Bench