Vivek Yadav and 4 Others vs State of U.P. Thru. Prin. Secy. Personnel Lko. and 4 Others

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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SPECIAL APPEAL No. - 200 of 2026

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Vivek Yadav And 4 Others

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.....Appellant(s)

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Versus

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State Of U.P. Thru. Prin. Secy. Personnel Lko. And 4 Others .....Respondent(s) Counsel for Appellant(s) : Alok Mishra, Priyanshu Shukla Counsel for Respondent(s) : C.S.C., Ayush Chaudhary, Raj Kumar Upadhyaya (R.K.Upadhyaya), Ravi Shanker Tewari

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Court No. - 1

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HON'BLE RAJAN ROY, J. HON'BLE MANJIVE SHUKLA, J.

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Heard Sri Alok Mishra, learned counsel for the appellants, Sri R.K. Raizada, learned Senior Counsel assisted by Sri Ravi Shanker Tewari & Sri Raj Kumar Upadhyay, learned counsel for the Commission-recruiting body and Ms. Isha Mittal, learned Addl. C.S.C. for the State.

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This is an appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 against the orders dated 01.02.2026 and 16.03.2026 passed in Writ-A No.1182 of 2026 [Vivek Yadav & Ors. vs. State of U.P. & Ors.].

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We had passed a detailed interim order on 08.05.2026 which reads as under:-

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"1. Counter affidavit, as also, application for dismissal of the appeal, filed on behalf of Opposite Party No. 5, are taken on record.

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2. Heard learned counsel appearing on behalf of the parties.

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3. It has been informed on behalf of the Commission that 25 candidates of the Unreserved category had secured lesser marks than the petitioners who had applied under the O.B.C. category for selection and appointment as Review Officer / Assistant Review Officer in various departments of the State Government for which the recruitment was undertaken by the Commission. Inspite of having secured lesser

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marks, they have been permitted to appear in main examination but appellants have not been so permitted. Learned Senior Counsel appearing for the Commission has also fairly submitted that the question of relaxation of concession, if any, granted to the petitioners, all of whom belong to the Reserved category, is not relevant for the preliminary test / shortlisting stage but is relevant only at the final selection stage. The appellants' Counsel informs that except for one of the appellant's, no other appellant has claimed any relaxation of concession as a Reserved candidate. He relies on Jitendra Kumar Singh & Another Vs. State of U.P. & others, passed in Civil Appeal No. 74 of 2010 [Arising out of Special Leave Petition (C) No. 1952 of 2008] to contend that even such relaxation / concession would not be very relevant to the issues involved.

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4. On the one hand the learned Senior Counsel appearing for the Commission says that reservation is not being applied at the preliminary examination / shortlisting stage and on the other hand he says that the candidates were divided into respective categories i.e. Reserved and Unreserved, and based on the marks secured by them in the preliminary exam / shortlisting as Reserved or Unreserved candidates, they were permitted to appear in the main examination based on the cut off marks prescribed for Reserved and Unreserved candidates, which is apparently incongruous. If reservation was applied at the preliminary stage, then the Reserved candidate who secured a higher mark than the Unreserved category candidate, was entitled to be treated as Unreserved category candidate even at the stage of preliminary examination and shortlisting and should have been allowed to appear in the main examination, if he was otherwise eligible, as, any other understanding of the matter, prima facie, would mean that a Reserved candidate securing higher merit would be excluded from the very zone of consideration for selection and appointment to the post of Review Officer / Assistant Review Officer, which would apparently be violative of Article 16(1) and 14 of the Constitution of India. Moreover, in the same vein, the learned Senior Counsel stated that reservation is not being applied at the preliminary examination / shortlisting stage, though, candidates are being considered groupwise i.e. whether they are Reserved or Unreserved. Apart from the fact that this is incongruous on the face of it, even if it is accepted for a moment that reservation is not being applied at the preliminary / shortlisting stage, then, one fails to understand as to how the petitioner could be ousted by treating him as an Unreserved candidate based on the cut off marks for such category if has secured more marks than other candidates, because in such a situation all the candidates would be treated as of Unreserved category and on the basis of merit they would be called for main examination.

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5. In the case at hand, the appellants even after having secured more marks than the Unreserved category in the preliminary test which is for shortlisting, have not been allowed to appear in the mains examination on the ground that they did not cross the cut off marks prescribed for Reserved O.B.C. category candidates, meaning thereby, though they have secured more marks than the Unreserved category candidates, they have been denied opportunity to appear in the main examination only on the ground that for the O.B.C. category, the cut off mark was higher and they could not secure the same.

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6. If this is permitted, prima facie, then such Reserved persons even after securing more marks than the Unreserved category would not be allowed to appear in the main examination and would be ousted at the preliminary stage itself. This would be in violation of the law declared by Hon'ble the Supreme Court and if there is any Rule contrary to the aforesaid legal position, then it is susceptible to being struck down or ignored. We may in this context refer to the decisions of Hon'ble the Supreme Court in the case of Indra Sawhney Vs. Union of India reported in 1992 Suppl. 3 SCC 217; R.K. Sabarwal Vs. State of Punjab reported in (1995) 2 SCC 745, as also, the observations in Paragraph No. 26 of the decision in Saurabh Yadav Vs. State of U.P., reported in (2021) 4 SCC 542 in the context of vertical and horizontal reservation.

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7. The rule position which is being relied by learned counsel for the Commission is in the teeth of the very decision of Hon'ble the Supreme Court cited by the learned Senior Counsel appearing for the Commission, in the case of Jitendra Kumar Singh (Supra).

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8. Moreover, the learned Single Judge while rejecting the interim relief has proceeded on the premise that the petitioner did not disclose as to whether any relaxation was granted to him as a Reserved category candidate or not, which according to him was essential, whereas, the learned Senior Counsel has stated before us that this question of relaxation would be relevant only at the final stage, therefore, the learned Single Judge has obviously considered an irrelevant aspect of the matter to dismiss the interim relief application.

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9. As regards the other issues, we have expressed a prima facie, opinion as aforesaid and are of the prima facie opinion that there has been violation of Article 16(1) read with Article 14 of the Constitution of India.

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10. As regards maintainability of this appeal, in a matter where there are fundamental defects in the selection process in the application of reservation and violation of the

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fundamental right of fair and equal treatment in the matter of Public employment under Article 16(1) read with Article 14 of the Constitution of India is involved and if the selection is allowed to proceed without interference resulting in complications or a fait accompli, then in exceptional circumstances, the Writ Court can and should interfere at the interim stage, as otherwise, further complications will arise. We are, therefore, prima facie, of the opinion that this was a case where interference should have been made at the interim stage.

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11. We, accordingly, entertain this appeal and further provide that the selection and appointment shall remain in abeyance till the next date of listing, however, those who have already joined, they shall remain unaffected by this order.

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12. List/Put up this case on Tuesday i.e. on 12.05.2026, as first case of the day."

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Today, for the first time, we have been informed about an order dated 17.04.2026 passed in Special Leave to Appeal (C) No(s).1346013461/2026 'Vivek Yadav & Ors. vs. State of U.P. & Ors.' by learned counsel for the parties which has been filed after filing of this appeal before condonation of delay in filing the appeal. On being confronted, learned counsel for the parties also accepted the fact that in para no.4, Hon'ble the Supreme Court has allowed this High Court to proceed with the matter pending before it and pendency of the S.L.P. will not come in the way.

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During argument a reference was also made to the judgment of Hon'ble the Supreme Court dated 19.12.2025 passed in Civil Appeal No.14112 of 2024 'Rajasthan High Court & Anr. vs. Rajat Yadav & Ors.' wherein a similar issue pertaining to shifting of candidates to open category at the preliminary examination stage was considered.

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After arguing the matter at some length, Sri R.K. Raizada, learned Senior Counsel submitted that whatever orders have been passed in this appeal on the last date i.e. 08.05.2026 may continue till disposal of the writ petition and the impugned order of learned Single Judge be set aside so that the writ petition be decided on merits at the earliest.

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Learned counsel for the State also says that there would be no objections if this order is passed so that the writ petition itself be decided

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at the earliest.

In view of the aforesaid statement, we reiterate and confirm our order dated 08.05.2026 and for the reasons given by us as learned Single Judge committed an error in passing the impugned order, we set aside the same and further request the learned Single Judge to consider and dispose of the writ petition at the earliest. Till such disposal, the interim protection granted by us on 08.05.2026 in this appeal shall continue to operate in the writ petition.

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Accordingly, the appeal is disposed of.

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(Manjive Shukla,J.) (Rajan Roy,J.)

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May 12, 2026 Shanu/-

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Digitally signed by :- SHANU SUMAN High Court of Judicature at Allahabad, Lucknow Bench

Vivek Yadav and 4 Others v. State of U.P. Thru. Prin. Secy. Personnel Lko. and 4 Others

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Vivek Yadav and 4 Others v. State of U.P. Thru. Prin. Secy. Personnel Lko. and 4 Others

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