Allowed

State of U.P. Thru.Addl.Chief Secy./Prin.Secy.Revenue and Ors. v. Lal Pratap Singh and Another

Allahabad HC6 Jul 2022SPLAD/275/2020

Case brief

AI extract

What is this about?

The Supreme Court (Allahabad High Court) allowed a special appeal against a Single Judge's judgment. The Court held that the District Magistrate's method of computing reservation vacancies for Dependents of Freedom Fighters was erroneous as it created a quota within a quota. The writ petition is to be restored to the Single Judge with mandatory impleadment of ousted open-category candidates before

What did the court decide?

Special appeal allowed; Writ petition dismissed quashed judgment; Writ petition restored to Single Judge with direction to implead ousted candidates.

State of U.P. Thru.Addl.Chief… — Pension and Retirement Benefits | Allahabad HC (2022)

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RESERVED

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Case :- SPECIAL APPEAL DEFECTIVE No. - 275 of 2020

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Appellant :- State Of U.P. Thru.Addl.Chief Secy./Prin.Secy.Revenue And Ors. Respondent :- Lal Pratap Singh And Another Counsel for Appellant :- C.S.C. Counsel for Respondent :- Surendra Pratap Singh

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Hon'ble Devendra Kumar Upadhyaya,J. Hon'ble Subhash Vidyarthi,J.

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(C.M. Application No.63039 of 2020)

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1. Office has reported a delay of 228 days in filing the special appeal.

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2. Having heard learned counsel for the appellants and the respondents and also having gone through the reasons given in the application seeking condonation of delay, we are satisfied that delay has sufficiently been explained.

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3. Accordingly, the application is allowed and delay in preferring this special appeal is hereby condoned.

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Order on Memo of Special Appeal

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4. Heard Shri V. P. Nag, learned Standing Counsel representing the State-appellants and Shri R. P. Singh, learned counsel representing respondent nos.1 and 2/petitioners.

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5. This intra-court appeal filed under Chapter VIII Rule 5 of the Rules of the Court lays a challenge to the judgment and order dated 29.01.2020 passed by the learned Single Judge in Writ Petition No.20021 (S/S) of 2018 whereby the writ petition has been allowed and the order impugned in the writ petition dated 23.06.2018 passed by the District

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Magistrate, Pratapgarh has been set aside. Further, a direction has been issued by the learned Single Judge to consider the candidature of the respondent nos.1 and 2 for appointment on the post of Lekhpal under 2% reservation quota meant for Dependents of Freedom Fighters (hereinafter referred to as 'DFF').

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6. Shri V. P. Nag, learned Standing Counsel representing the State-appellants impeaching the judgment and order under appeal passed by the learned Single Judge has argued inter alia that while making appointment to the posts in question computation of reservation was validly done and as such the finding recorded by the learned Single Judge to the contrary, is erroneous. It has also been argued that in case respondent nos.1 and 2, the petitioners in Writ Petition No.20021 (S/S) of 2018, are appointed on the post in question, then they will have to be adjusted only against 02 of the 92 vacancies meant for being filled up from amongst the candidates belonging to unreserved (open) category and in such an eventuality, last two appointees belonging to unreserved category will have to be ousted and since these persons were not impleaded as respondents in the writ petition, the petition itself suffered from the vice of non-joinder of necessary parties.

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7. Submission is that the learned Single Judge has completely ignored the aforesaid defect in the writ petition which renders the judgment under appeal vitiated and unsustainable. It has further been argued by the learned State Counsel representing the State-appellants that once applying the reservation meant for Scheduled Castes, Scheduled Tribes and Other Backward Classes categories candidates, the vacancies in these reserved categories are

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calculated then 2% reservation available to the DFF will be reckoned out of total vacancies available and thereafter such vacancies are to be further bifurcated/divided between the reserved and unreserved category vacancies and accordingly in case of availability of DFF candidates they are to be adjusted against the vacancies available for such reserved categories.

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8. Submission, thus, on behalf of the State-appellants is that the judgment and order under appeal ignores the aforesaid principles relating to computation of reserved vacancies and hence is liable to be set aside. 9. On the other hand, Shri R. P. Singh, learned counsel representing the respondent nos.1 and 2 (who for convenience shall be referred to as 'the petitioners' herein after) has submitted that the judgment and order under appeal does not suffer from any illegality or error so as to call for any interference by this Court in this special appeal for the reason that the learned Single Judge has relied upon the provisions contained in Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (hereinafter referred to as 'the Act, 1993) appropriately. It has further been argued by the learned counsel for the petitioners that in case the reasoning given by the District Magistrate in his order dated 23.06.2018, which was under challenge before the learned Single Judge in the writ petition, is accepted the same shall amount to creating quota within quota which is impermissible under law and accordingly the learned Single Judge has rightly set aside the said order dated 23.06.2018 passed by the District Magistrate, Pratapgarh.

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His submission thus, is that the special appeal is liable to be dismissed at its threshold.

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10. We have considered the competing arguments made by the learned counsel appearing for the respective parties and have also perused the records available before us on this special appeal.

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11. Before adverting to the rival submissions advanced by the learned counsel appearing for the parties and reasoning given by the learned Single Judge in the judgment and order under appeal, we may note certain facts in brief.

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12. An advertisement was issued on 03.07.2015 for selection/appointment against 182 vacancies of Lekhpals in District-Pratapgarh. The petitioners applied against the said advertisement under unreserved (open) category and simultaneously they also claimed the benefit of reservation against 2% vacancies available to the DFF in terms of the provisions contained in the Act, 1993. The petitioners along with other candidates were subjected to written examination, result of which was declared on 09.12.2015. Thereafter the petitioners appeared in the interview held on 14.02.2016. Whereafter the final merit/select list was prepared and published on 25.04.2016. However, on declaration of result the petitioners were not found successful and therefore they moved certain representations to the authorities claiming that they are eligible to appointed on the post in question under 2% quota meant for DFF and since only one (01) person in the category of DFF has been appointed whereas the total number of vacancies available for DFF are 3, they ought to

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have been appointed against the remaining 2 such vacancies in the quota meant for DFF.

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13. It is not in dispute that both the petitioners belong to unreserved category and further that they are eligible for being considered for selection/appointment as DFF. It is also not in dispute that total number of vacancies which were advertised were 182 out of which only 01 unreserved category candidate has been selected/appointed as DFF.

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14. The question/issue, which, thus, falls for our consideration is as to whether the State-appellants have correctly taken recourse to the correct procedure for computation of vacancies meant to be filled in within 2% quota available to DFF or not. In other words, the issue before us is as to whether the methodology adopted/recourse taken by the respondents in calculating the vacancies in this case is correct or not.

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15. To determine the said issue, it would be apt to reproduce the provisions contained in section 3 of the Act, 1993, which reads as under:-

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"3. Reservation of vacancies in favour of physically handicapped etc. - [(1) There shall be reserved at the stage of direct recruitment],-

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[(i) in public services and posts two percent of vacancies for dependents of freedom fighters;

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(i-a) in public services and posts other than Group 'A' posts or Group 'B' posts, on and from May 21, 1999 two per cent of vacancies, and on and from the date on which the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen) (Amendment) Act, 1999 is published in the Gazette, five per cent of vacancies for Exservicemen.]

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[((ii) In such public services and posts as the State Government may, by notification, identify not less than four per cent, of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent for persons with benchmark disabilities under clauses (d) and (e), namely-

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(a) blindness and low vision;

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(b) deaf and hard of hearing;

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(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;

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(d) autism, intellectual disability, specific learning disability and mental illness;

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(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf blindness in the posts identified for each disabilities.]

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(2)[* * *]

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(3) The persons selected against the vacancies reserved under subsection (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Castes category he will be placed in that quota by making necessary adjustments; if he belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjustments; if he belongs to[Other Backward Classes of Citizens], category, he will be placed in that quota by making necessary adjustments. Similarly if he belongs to open competition category, he will be placed in that category by making necessary adjustments.

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4. [* * *]

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[(5) Where due to non-availability of suitable candidates any of the vacancies reserved under sub-section (1) remains unfilled it shall be carried forward for further two selection years, whereafter it may be treated to be lapsed.] "

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16. Thus, as per aforequoted provisions of the Act 1993, 2% of vacancies are reserved for DFF. Sub section 3 of section 3 of the Act, 1993 provides that the candidates selected against the vacancies reserved under sub section 1 are to be placed in their respective categories to which they belong. Sub section 3 further clarifies, by giving an example, as to how such reservation is to be applied, according to which, if a selected person belongs to Scheduled Castes category and gets selected as DFF, he will be placed in the quota meant for Scheduled Castes category by making necessary adjustments. Similarly a candidate belonging to other reserved categories i.e. the category of Scheduled Tribes or Other Backward Classes, if gets selected as DFF, he is to be placed in the quota meant for Scheduled Tribe and Other Backward Classes. It is also relevant that sub section 3 of section 3 of the Act, 1993 further makes it clear that in case a candidate selected by providing him reservation under the Act, 1993 belongs to open category, he is to be placed in that category by making necessary adjustments. Thus, in our considered opinion, the scheme of Section 3 of the Act, 1993 is that firstly selection of the candidates in the reserved category of DFF and other special categories in terms of 1993 Act is to be made and thereafter such selected candidates are to be placed in the merit/select lists belonging to the particular category of SC/ST/OBC/Open to which they belong by making

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necessary adjustments. For clarity, we may give an example. In a situation where a Scheduled Caste category candidate claims reservation as DFF in terms of the scheme of Section 3 of the Act, 1993, his selection shall be made as DFF first and thereafter he shall be adjusted in the merit list of the reserved category candidates belonging to Schedule Castes by removing the last selected candidate in the said list.

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17. It is settled legal principle that reservation meant for SC/ST/OBC category candidates is to be applied vertically and the reservation meant for special category candidates in terms of the Act, 1993 is to be applied horizontally. That means horizontal reservation is to be applied across vertical reservation. To further clarify as to how horizontal reservation available under the Act, 1993 is to be applied, the State Government has issued a Government Order dated 22.10.2001 wherein it has categorically been provided that such reservation shall be horizontal. The said Government Order further provides that in case a candidate gets selected in the special category in terms of the Act, 1993 and he belongs to Scheduled Castes category then he shall be adjusted against the quota meant for Scheduled Castes after making necessary adjustments. Similarly, if such a candidate belongs to reserved category of Scheduled Tribe, he shall be adjusted against the quota meant for Scheduled Tribe category candidates. Similar will be the situation in respect of a candidate belonging to Other Backward Classes. The Government Order further provides that in case any candidate belongs to open category (unreserved) and gets selected as a special

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category candidate as per the Act, 1993 then he shall be placed in the merit list of the open category candidates by making necessary adjustment. The relevant paragraph of the Government Order dated 22.10.2001 is quoted as under:

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" mi;ZqDr vkj{k.k gkfjtUVy gksxkA vFkkZr ;fn mi;ZqDr oxksZ esa ls fdlh oxZ dk p;fur vH;FkhZ vuqlwfpr tkfr dk gks rks mls vuqlwfpr tkfr ds dksVk esa] ;Fkk vko';d lek;kstu djrs gq,] j[kk tk;sxkA ;fn og vH;FkhZ vzU; fiNMk oxZ dk gks rks mls vU; fiNMk oxZ esa] ;Fkk vko';d lek;kstu djds] j[kk tk;sxk ;fn og [kqyh izfr;ksfxrk okyh dVsxjh vFkkZr lkekU; oxZ dk gks rks mls ml oxZ esa] ;Fkk vko';d lek;kstu djds] j[kk tk;sxkA

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;fn dksbZ fjfDr mi;qDr vH;FkhZ dh vuqiyC/krk ds dkj.k fcuk Hkjh jg tkrh gS rks mls vkxkeh HkrhZ ds fy, vxzuhr fd;k tk;sxkA "

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18. As to how the adjustment of such candidates is to be made, has already been noticed above. We, at the costs of reiteration, further observe that once a candidate gets selected as a special category candidate in terms of the Act, 1993, he is to be placed in the merit list prepared for providing reservation to the reserved category candidates (SC/ST/OBC) or in the list prepared for making selection/appointment from amongst the open category candidates. Such placement would necessarily require adjustment of special category candidates in the merit lists with the resultant that the special category candidates selected/appointed shall be placed in the merit/select list of the candidates of the corresponding category i.e. SC/ST/OBC/Open which will further result in ouster of equal number of candidates belonging to the category concerned from the merit list of the concerned category.

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19. At this juncture, we may notice that in any selection, for the purposes of providing vertical reservation, separate merit lists are prepared and these separate merit lists are; (i) merit list for Scheduled Castes category candidates, (ii) merit list for Scheduled Tribes category candidates, (iii) merit list for Other Backward Classes category candidates, and (iv) merit list for open category candidates. Thus, in a situation where vertical reservation to the SC/ST/OBC candidates is to be applied simultaneous with the application of horizontal reservation in terms of the Act, 1993, the Selection Body/Appointing Authority is to first prepare separate merit lists of Scheduled Castes, Scheduled Tribes, Other Backward Classes and Unreserved category candidates. Simultaneously, the Selection Body/Appointing Authority is also required to prepare a combined merit list comprising of all the selected candidates and in case in this combined merit list any candidate claiming reservation under the Act, 1993 gets included, he is to be adjusted against the separate merit lists already prepared for SC/ST/OBC/Open categories. In such a process, for adjusting the special category candidates in the separate select lists, the last person(s) i.e. the person(s) placed at the bottom in the separate merit lists prepared for different category candidates is/are to be removed/deleted/ousted depending upon the number of special category candidates selected in terms of the Act, 1993.

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20. Having enunciated the legal principles to be applied in a case where in a selection/appointment process, vertical and horizontal reservations are to be applied

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simultaneously, we now proceed to examine the reasons given by the District Magistrate, Pratapgarh in his order dated 23.06.2018 denying the claim of the petitioners for being appointed as DFF.

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21. The District Magistrate, Pratapgarh in his order dated 23.06.2018 has observed that applying the vertical reservation available to the reserved category candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes categories, the vacancies if computed are 38, 03 and 49 in these respective reserved categories. According to the said order, out of 182 advertised vacancies, 92 vacancies were meant for unreserved category candidates/open category candidates. So far as the said computation of reserved vacancies where vertical reservation is to be applied is concerned, there does not seem to be any error. However, the District Magistrate further proceeds to observe in the order dated 23.06.2018 that if 2% vacancies are to be calculated for the purposes of giving horizontal reservation to DFF in terms of the Act, 1993 against total advertised vacancies of 182, the number of such vacancies meant for DFF comes out to be 03 (three). The District Magistrate further observes that out of these 3 vacancies 50% vacancies are meant for open category candidates and accordingly 1.5 vacancy will be available for open category candidates claiming appointment as DFF. The District Magistrate also observes that in terms of the provisions contained in the Government Order dated 28.08.2015 since the mathematical principle of rounding off is not to be applied for the purposes of computing the vacancies for applying reservation, the

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number of vacancy available for unreserved DFF is 01 (one) against which one appointment has already been made and as such the petitioners claim for appointment as unreserved DFF candidates is not tenable.

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22. When we consider the aforesaid reasoning given by the District Magistrate, Pratapgarh in his order dated 23.06.2018, what we find is that the said reasoning is completely fallacious. Such a course if permitted results in applying reservation vertically whereas reservation for DFF or any other special category is to be applied horizontally as per the Act, 1993. If the reasoning given by the District Magistrate in his order dated 23.06.2018 is taken to be correct, the same would amount to creating a quota within the quota which, in our considered opinion, will not be permissible in the facts and circumstances of the present case. The correct method, according to us, for calculating the number of vacancies against which DFF can be appointed in this case is that 2% vacancies of the total 182 vacancies are to be kept aside for the candidates claiming their appointments as DFF. 2% of 182 comes out to be 3.64 and since the principle of rounding off is not to be applied as per the provisions contained in the Government Order dated 28.08.2015, the total number of vacancies available for appointment of DFF in this case will be 3. For filling up these 3 vacancies meant for DFF, the procedure as given in the Government Order dated 22.10.2001 is to be adopted which has already been elaborated herein above.

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23. The proper course would have been that the State authorities ought to have firstly prepared separate

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category-wise merit lists comprising of the candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes and open category. Simultaneous with preparation of separate category-wise merit lists, a combined merit list of candidates of all the categories (SC/ST/OBC/Open) ought to have been prepared and the candidates claiming their appointments as DFF falling in this combined merit list ought to have been adjusted i.e. placed in the separate category-wise list already prepared. In this process, if any candidate claiming reservation under the Act, 1993 gets selected, he would be adjusted against the social category to which he belongs i.e. the category either of Scheduled Castes or Scheduled Tribes or Other Backward Classes or Open Category. Resultantly, candidates equal in number to the number of candidates claiming appointment as DFF who are adjusted in the separate merit lists, will have to be removed from the separate merit lists/select lists prepared category-wise for providing vertical reservation. In this case, there is nothing on record suggesting that any candidate belonging to reserved category of Scheduled Castes, Scheduled Tribes and Other Backward Classes had claimed his appointment as DFF. As per the records available before us, there were four candidates belonging to unreserved category who claimed their appointment as DFF and since in our opinion 3 vacancies were legally to be filled in from amongst the candidates claiming their appointment as DFF, 2 more such appointments as DFF ought to have been made. We have already noticed that only 01 (one) appointment of a candidate belonging to unreserved category as DFF has been made.

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24. In the aforesaid view of the matter, what we find is that the order dated 23.06.2018 passed by the District Magistrate, Pratapgarh which was under challenge before the learned Single Judge in the writ petition, is based on erroneous reasoning relating to method of computation of vacancies to be filled in from amongst DFF candidates. The method of computation of vacancies to be filled in from amongst the special category candidates in terms of the Act, 1993 is thus, found to be erroneous.

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25. Coming to the judgment and order dated 29.01.2020 passed by the learned Single Judge which is under appeal before us, we notice that the learned Single Judge has quashed the order passed by the District Magistrate dated 23.06.2018 whereby the claim of the petitioners was disallowed. However,we are also conscious of the fact that in case respondent nos.1 and 2/petitioners are to be adjusted for being given appointment to the post in question, the same would result in ouster of 2 already selected/appointed candidates. These two selected candidates were not parties to the writ petition, though the judgment and order whereby the writ petition has been allowed may cause sufficient prejudice to their rights. It is also to be noticed that final list in this case for selection was pronounced in the month of April, 2016. Thereafter the appointments have also been made.

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26. Thus, we find that the learned Single Judge has proceeded to decide the writ petition without adverting to the consequences which may be caused to other selected candidates in case the petitioners' claim is to be accepted.

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27. For the aforesaid reasons, we are of the opinion that writ petition itself should be heard and decided afresh after requiring the petitioners to implead the last two candidates selected in their category, as respondents in writ petition and after giving such selected candidates opportunity to contest the same.

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28. Special appeal is, thus, allowed. The judgment and order dated 29.01.2020 passed by learned Single Judge in Writ Petition No.20021 (S/S) of 2018 is hereby set aside.

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29. Writ Petition No.20021 (S/S) of 2018 is restored to the board of learned Single Judge.

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30. Respondent nos.1 and 2/petitioners will be at liberty to implead the last two selected candidates in their category in the writ petition as respondents. In case any such application is moved, the parties who may be impleaded as respondents shall be provided adequate opportunity to contest the writ petition.

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31. Learned Single Judge is requested to decide the matter afresh taking into consideration the observations made herein above as well.

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32. There will be no order as to costs.

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Order Date :- 6/7/2022 akhilesh/

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(Subhash Vidyarthi, J.) (D. K. Upadhyaya, J.)

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Judgment pronounced in open Court by me under Rule 1(2) of Chapter VII of Allahabad High Court Rules, 1952.

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6/7/2022

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Digitally signed by AKHILESHWAR KUMAR Date: 2022.07.07 10:28:03 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. Thru.Addl.Chief Secy./Prin.Secy.Revenue and Ors. v. Lal Pratap Singh and Another

Case brief

What is this about?

What did the court decide?

State of U.P. Thru.Addl.Chief Secy./Prin.Secy.Revenue and Ors. v. Lal Pratap Singh and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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