Vivek Singh and 4 Others vs State of U.P. Thru. Prin. Secy. Deptt. of Medical Health and Family Welfare Lucknow and Ors.

It is informed that the judgment dated 16.01.2024 passed in Writ-A No.9881 of 2023 is under challenge in Special Appeal No.21 of 2026 therein. Initially an interim order was passed, but that was passed without condoning the delay in filing the appeal. This fact was noticed in the order dated 12.01.2026 passed in said special appeal bearing Special Appeal (Defective) No.359 of 2024, which also mentions that for this very reason the interim order was also not extended on the last date. The delay was condoned on 12.01.2026 and the matter is fixed for tomorrow before this Court. The benefit of the aforesaid judgment dated 16.01.2024 has been granted to the appellants also vide judgment dated 05.02.2025 passed in Writ-A No.1507 of 2025. The said judgment dated 05.02.2025 has not been challenged, but, the judgment passed in Sudeep Shukla dated 16.01.2024 the benefit of which has been given to the appellant, is under challenge as noticed hereinabove. Now this appeal has been filed being aggrieved by the fact that the learned Single Judge has not protected the interest of the appellants in spite of the fact that the selection process is over and now appointment letters are going to be issued and as per the judgment dated 05.02.2025 passed in the case of the appellants read with judgment dated 16.01.2024 a direction was given to give weightage to the appellants for number of years they have worked as Contractual employees and the said direction is not stayed.

¶12

Sri Utsav Mishra, appearing for the Commission says that even if the

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SPLA No. 61 of 2026

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judgment dated 05.02.2025 is complied as it is, subject of course to the challenge in Special Appeal filed by the State Government, out of five, three of the petitioners will not qualify. He has submitted that appellant no.1 has received only 13.25 marks whereas cut off for OBC category to which he belong is 40.75. The maximum marks based on weightage which could be given to the appellant no.1 are 15, therefore, he would not get above the cut off marks. Likewise, he has informed us that appellant no.2 has secured only 26 marks and he belongs to the General Category for which the cut off is 42.50 marks, therefore, he also does not qualify. Regarding appellant nos. 3 and 4, he has fairly submitted that the appellant no.3 has secured 32.50 marks and belongs to the OBC category for which the cut off marks is 40.75 and as the appellant claims to have worked more than five years, therefore, maximum of 15 marks granted to him would be liable to be given to him based on weightage, therefore he will cross the cut off 40.75 marks for OBC category. Likewise, appellant no.4 has secured 29 marks and as he has also worked for more than five years, he will also get more than 40.75 which is the cut off for O.B.C. and would qualify, but appellant no.5 has secured only 14.25 marks and, therefore, even the 15 marks are given to him, he will not get more than 42.50, and therefore he would still not qualify.

¶16

It is also his submission that the selection is also under challenge but the appellants have not impleaded the selectees before the writ Court, a fact which has been noticed in the impugned order. This is an aspect which can be seen at the time of final hearing in this appeal or before the writ court at the appropriate stage, but as of now even as per the contention of Sri Utsav Mishra appearing for the Commission if the judgment dated 16.01.2024 is sustained, the benefit of which has been given to the appellants vide judgment dated 05.02.2025, and weightage is extended to the appellants based on the number of years put in by them on contractual basis as Optometrist, then, appellant nos.3 and 4 would qualify for inclusion in the select list.

¶17

Sri Utsav Misra, also says that this special appeal is not maintainable against the interim order impugned herein for the reason it does not have trappings of finality and secondly it protects the rights of the appellants herein by making the selection subject to further order/final result of the

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SPLA No. 61 of 2026

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writ petition. On being confronted, counsel for the appellants relies upon the decision of Deoraj vs. State of Maharashtra and others, (Civil Appeal No.2084 of 2004), decided on 06.04.2024, to contend that when the facts of case are apparent and it is admitted to the Commission that at least two of the five appellants will qualify if weightage has been given and when the judgment dated 05.02.2025 passed in the writ petition of the appellants has nowhere been challenged nor is the judgment dated 16.01.2024 stayed, then, the writ court has failed to exercise its jurisdiction to further the cause of substantial justice by protecting the rights of the appellants herein and avoiding multiplicity of the litigation and complexity therein, as such, to avoid a fait accompli interim protection should have been granted.

¶21

Sri Anand Singh, learned Counsel appearing for the State-respondents says that in this special appeal the judgment rendered in the case of Sudeep Shukla is under challenge in an appeal which is coming up tomorrow.

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Prima facie the contention of counsel for the appellants herein appears to be correct. Leaving all these questions open for consideration further, we provide that till tomorrow i.e 05.02.2026 two vacancies on the post of Optometrists which have been advertised on 12.07.2023 shall not be filled up so as to protect the rights of appellant No.3 and 4, as discussed above, under the judgment dated 05.02.2025.

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Connect this appeal with Special Appeal (Defective) No.359 of 2024 (Special Appeal No. 21 of 2026)

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Put up tomorrow i.e. 05.02.2026 as first case of the day.

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(Abdhesh Kumar Chaudhary,J.) (Rajan Roy,J.)

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February 4, 2026 Renu/-

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Digitally signed by :- RENU AGARWAL High Court of Judicature at Allahabad, Lucknow Bench

Vivek Singh and 4 Others v. State of U.P. Thru. Prin. Secy. Deptt. of Medical Health and Family Welfare Lucknow and Ors.

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Vivek Singh and 4 Others v. State of U.P. Thru. Prin. Secy. Deptt. of Medical Health and Family Welfare Lucknow and Ors.

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