LUCKNOW vs Medical Officer Rajkiya Homyopathic Chikitsalaya

Srivastava, Anwar Ashfaq, Mohd. Ali Counsel for Respondent(s) : C.S.C. Court No. - 1 HON'BLE RAJAN ROY, J. HON'BLE INDRAJEET SHUKLA, J.

1. Heard Sri Mohd. Ali, learned counsel for the appellant and Sri Pratul Srivastava, learned Standing Counsel for the State-respondents.

2. We have perused our order dated 17.11.2025. We had allowed the review application of the appellant by the said order and posted the appeal today for hearing under a mistake of fact as learned counsel for the appellant invited our attention to an advertisement in pursuance to which the appointment was made, copy of which is annexed at page 15 of the appeal which referred to backlog vacancies and also that seven posts of Sweeper cum Chaukidar which had been advertised, were all backlog vacancies reserved for scheduled castes, however, he did not point out nor could we notice that there was a counter affidavit on record, according to which, mention of seven backlog vacancies for schedule caste in the said advertisement was erroneous as backlog vacancies were only three that too for backward classes and along with the counter affidavit a chart had been annexed in this regard to which no rejoinder affidavit had been filed by the appellant, meaning thereby these averments and documents remain unrebutted.

3. In ignorance of these facts, we allowed the review application on the legal premise that if the advertisement was for a special drive for filling up backlog vacancies then the ceiling of 50% vacancies will not be applicable. Nevertheless, the fact of the matter is that the review application has been allowed. Now there are two options either we recall the said order or we 2 SPLA No. 187 of 2003 decide the appeal itself. As the bench which decided the review application is not available today, therefore, we proceed to decide the appeal itself once again on merits.

4. The contention of Sri Mohd. Ali, learned counsel appearing for the appellant is that vacancies in question were backlog vacancies and he relied upon the same advertisement annexed as page 15, wherein seven posts of Sweeper cum Chaukidar were advertised and all were reserved for scheduled caste and the advertisement mentioned the same as backlog vacancies. In the same advertisement one post of Ward Boy was also advertised, against which, Sri Mahendra Singh was appointed. It is also the contention of Sri Mohd. Ali that no show cause notice was given to the appellant before terminating his services. Thirdly, an enquiry was instituted against the Officer who had issued the advertisement, in pursuance to which, appellant was fined but in the enquiry he was exonerated. He relied upon an order dated 20.04.2006 by which the said Medical Officer was exonerated. However, the enquiry report which is referred therein is not on record. He also relied upon a Government Order dated 13.06.2003 by which in earlier order was clarified and it was decided that all posts of Sweeper will be filled by Scheduled Caste/Valmikis.

5. Sri Pratul Srivastava, learned counsel for the State on the other hand invites our attention to the counter affidavit filed on behalf of State in the appeal and the chart annexed therewith, according to which, there were 17 posts of Sweeper cum Chaukidar out of which, 03 were reserved for scheduled castes and 03 for OBC. Against the aforesaid 17 posts, 12 persons who were working, all belonged to the scheduled castes, meaning thereby the quota of scheduled castes was more than full. Obviously, persons appointed in excess of 03 reserved posts must have been appointed as unreserved/general category posts having requisite merit. Five posts were vacant and as none from the OBC category was working, therefore, 03 out of 05 were to be filled up by OBC category. The chart also states that 05 persons who have been newly appointed against aforesaid vacancies belong to the scheduled castes whereas 03 posts had to be reserved for OBC category. The appellant has not filed any response to the said counter affidavit denying the said assertion and the chart annexed with it meaning thereby, the said averments and the documents annexed with the said counter affidavit are unrebutted. 3 SPLA No. 187 of 2003

6. It being so, we find that the issuance of the advertisement dated

24.08.2002 in pursuance to which the appellant was appointed, itself was erroneous and contrary to the provisions of the Uttar Pradesh Public Services (Reservation for Scheduled Castes and Scheduled Tribes and other Backward Classes) Act, 1994 as also the law on this subject. By issuing such an advertisement mentioning that all the 07 vacancies on the post of Sweeper cum Chaukidar were reserved for scheduled castes, the reserved category candidates belonging to the OBC category and the unreserved category candidates were denied an opportunity to apply and be considered for appointment against such posts, therefore, apparently the advertisement was in violation of the Act, 1994 and Article 16(1) of the Constitution of India. Consequently, the services of the appellant were terminated vide order dated

31.01.2003 clearly stating that there were no backlog vacancies for the scheduled castes category, yet, aforesaid advertisement was issued and scheduled castes category candidates were selected and appointed giving the benefit of reservation treating the vacancies as backlog vacancies for the said category, erroneously and illegally, rightly so. Appellant is not working since 05.02.2003.

7. As regard contention of Sri Mohd. Ali, learned counsel for the appellant that no show cause notice was given, the facts are so apparent from the face of record that there cannot be two views about it and they have not been rebutted by the appellant, therefore, this plea is inconsequential in the facts of this case, The appellant had full opportunity to rebut the aforesaid facts before us, but has not done so, therefore, this plea is rejected.

8. As regard contention that Sri Mahendra Singh had also been appointed based on the same advertisement, we find that he was appointed as Ward Boy and not on the post of Sweeper cum Chaukidar on which the appellant was appointed illegally and erroneously, therefore, this contention is also rejected.

9. So far as the contention that an enquiry was instituted against the Medical Officer who had issued the advertisement but he was exonerated, the enquiry report is not before us. Even otherwise whether misconduct was made out against the said Officer or not is a different thing. So far as legality of the advertisement and the appointment made in pursuance thereof is concerned, the facts are apparent before us as discussed. The error and illegality being fundamental and the appointment having been apparently made dehors the 4 SPLA No. 187 of 2003 statute and the constitution as also in excess the prescribed percentage of reservation for scheduled castes i.e. 21% and 50% total reservation and also as it deprived the OBC category candidate of their right of participation in the selection though at least 03 posts were to be reserved for the candidate and also denied such opportunity to the unreserved category for the remaining posts, this plea is also rejected.

10. So far as the reliance placed by learned counsel for the appellant upon the Government Order dated 13.06.2003 is concerned, apparently, it has been issued subsequent to the advertisement dated 24.08.2002 and after the appointment of the appellant on 31.01.2003. Further, on a bare reading of it, it is evident that it is prospective and not retrospective. The last paragraph of the said Government Order itself makes the position clear. Therefore, no benefit can accrue to the appellant based on such on order. This apart, it is highly doubtful that such a Government Order could be issued for appointment against a post under the State, excluding all categories from consideration except the scheduled castes category, but we say no more as the Government Order is not under challenge before us.

11. In view of the above, we do not find any error in the judgment of the learned Single Judge nor in the order which was impugned before it. The appeal lacks merit and is, accordingly dismissed. December 9, 2025 Mohit (Indrajeet Shukla,J.) (Rajan Roy,J.) MOHIT KUMAR KUSHWAHA High Court of Judicature at Allahabad, Lucknow Bench

Srivastava, Anwar Ashfaq, Mohd. Ali Counsel for Respondent(s) : C.S.C. Court No. - 1 HON'BLE RAJAN ROY, J. HON'BLE INDRAJEET SHUKLA, J.

1. Heard Sri Mohd. Ali, learned counsel for the appellant and Sri Pratul Srivastava, learned Standing Counsel for the State-respondents.

2. We have perused our order dated 17.11.2025. We had allowed the review application of the appellant by the said order and posted the appeal today for hearing under a mistake of fact as learned counsel for the appellant invited our attention to an advertisement in pursuance to which the appointment was made, copy of which is annexed at page 15 of the appeal which referred to backlog vacancies and also that seven posts of Sweeper cum Chaukidar which had been advertised, were all backlog vacancies reserved for scheduled castes, however, he did not point out nor could we notice that there was a counter affidavit on record, according to which, mention of seven backlog vacancies for schedule caste in the said advertisement was erroneous as backlog vacancies were only three that too for backward classes and along with the counter affidavit a chart had been annexed in this regard to which no rejoinder affidavit had been filed by the appellant, meaning thereby these averments and documents remain unrebutted.

3. In ignorance of these facts, we allowed the review application on the legal premise that if the advertisement was for a special drive for filling up backlog vacancies then the ceiling of 50% vacancies will not be applicable. Nevertheless, the fact of the matter is that the review application has been allowed. Now there are two options either we recall the said order or we 2 SPLA No. 187 of 2003 decide the appeal itself. As the bench which decided the review application is not available today, therefore, we proceed to decide the appeal itself once again on merits.

4. The contention of Sri Mohd. Ali, learned counsel appearing for the appellant is that vacancies in question were backlog vacancies and he relied upon the same advertisement annexed as page 15, wherein seven posts of Sweeper cum Chaukidar were advertised and all were reserved for scheduled caste and the advertisement mentioned the same as backlog vacancies. In the same advertisement one post of Ward Boy was also advertised, against which, Sri Mahendra Singh was appointed. It is also the contention of Sri Mohd. Ali that no show cause notice was given to the appellant before terminating his services. Thirdly, an enquiry was instituted against the Officer who had issued the advertisement, in pursuance to which, appellant was fined but in the enquiry he was exonerated. He relied upon an order dated 20.04.2006 by which the said Medical Officer was exonerated. However, the enquiry report which is referred therein is not on record. He also relied upon a Government Order dated 13.06.2003 by which in earlier order was clarified and it was decided that all posts of Sweeper will be filled by Scheduled Caste/Valmikis.

5. Sri Pratul Srivastava, learned counsel for the State on the other hand invites our attention to the counter affidavit filed on behalf of State in the appeal and the chart annexed therewith, according to which, there were 17 posts of Sweeper cum Chaukidar out of which, 03 were reserved for scheduled castes and 03 for OBC. Against the aforesaid 17 posts, 12 persons who were working, all belonged to the scheduled castes, meaning thereby the quota of scheduled castes was more than full. Obviously, persons appointed in excess of 03 reserved posts must have been appointed as unreserved/general category posts having requisite merit. Five posts were vacant and as none from the OBC category was working, therefore, 03 out of 05 were to be filled up by OBC category. The chart also states that 05 persons who have been newly appointed against aforesaid vacancies belong to the scheduled castes whereas 03 posts had to be reserved for OBC category. The appellant has not filed any response to the said counter affidavit denying the said assertion and the chart annexed with it meaning thereby, the said averments and the documents annexed with the said counter affidavit are unrebutted. 3 SPLA No. 187 of 2003

6. It being so, we find that the issuance of the advertisement dated

24.08.2002 in pursuance to which the appellant was appointed, itself was erroneous and contrary to the provisions of the Uttar Pradesh Public Services (Reservation for Scheduled Castes and Scheduled Tribes and other Backward Classes) Act, 1994 as also the law on this subject. By issuing such an advertisement mentioning that all the 07 vacancies on the post of Sweeper cum Chaukidar were reserved for scheduled castes, the reserved category candidates belonging to the OBC category and the unreserved category candidates were denied an opportunity to apply and be considered for appointment against such posts, therefore, apparently the advertisement was in violation of the Act, 1994 and Article 16(1) of the Constitution of India. Consequently, the services of the appellant were terminated vide order dated

31.01.2003 clearly stating that there were no backlog vacancies for the scheduled castes category, yet, aforesaid advertisement was issued and scheduled castes category candidates were selected and appointed giving the benefit of reservation treating the vacancies as backlog vacancies for the said category, erroneously and illegally, rightly so. Appellant is not working since 05.02.2003.

7. As regard contention of Sri Mohd. Ali, learned counsel for the appellant that no show cause notice was given, the facts are so apparent from the face of record that there cannot be two views about it and they have not been rebutted by the appellant, therefore, this plea is inconsequential in the facts of this case, The appellant had full opportunity to rebut the aforesaid facts before us, but has not done so, therefore, this plea is rejected.

8. As regard contention that Sri Mahendra Singh had also been appointed based on the same advertisement, we find that he was appointed as Ward Boy and not on the post of Sweeper cum Chaukidar on which the appellant was appointed illegally and erroneously, therefore, this contention is also rejected.

9. So far as the contention that an enquiry was instituted against the Medical Officer who had issued the advertisement but he was exonerated, the enquiry report is not before us. Even otherwise whether misconduct was made out against the said Officer or not is a different thing. So far as legality of the advertisement and the appointment made in pursuance thereof is concerned, the facts are apparent before us as discussed. The error and illegality being fundamental and the appointment having been apparently made dehors the 4 SPLA No. 187 of 2003 statute and the constitution as also in excess the prescribed percentage of reservation for scheduled castes i.e. 21% and 50% total reservation and also as it deprived the OBC category candidate of their right of participation in the selection though at least 03 posts were to be reserved for the candidate and also denied such opportunity to the unreserved category for the remaining posts, this plea is also rejected.

10. So far as the reliance placed by learned counsel for the appellant upon the Government Order dated 13.06.2003 is concerned, apparently, it has been issued subsequent to the advertisement dated 24.08.2002 and after the appointment of the appellant on 31.01.2003. Further, on a bare reading of it, it is evident that it is prospective and not retrospective. The last paragraph of the said Government Order itself makes the position clear. Therefore, no benefit can accrue to the appellant based on such on order. This apart, it is highly doubtful that such a Government Order could be issued for appointment against a post under the State, excluding all categories from consideration except the scheduled castes category, but we say no more as the Government Order is not under challenge before us.

11. In view of the above, we do not find any error in the judgment of the learned Single Judge nor in the order which was impugned before it. The appeal lacks merit and is, accordingly dismissed. December 9, 2025 Mohit (Indrajeet Shukla,J.) (Rajan Roy,J.) MOHIT KUMAR KUSHWAHA High Court of Judicature at Allahabad, Lucknow Bench