Ashish Kumar vs State of U.P. Thru. Prin. Secy. Deptt. of Higher Edu. Lko. and 15 Others

Copy of the government order dated 03-11-2015 placed by Mr. Mahendra Pratap Singh and Mr. Shyama Charan Dixit, learned counsels for the respondent nos. 6 & 7, is taken on record.

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Heard Mr. Abhinandan Kumar Pandey, learned counsel for the petitioner, learned counsel for the State, Mr. Jogendera Nath Verma, learned counsel for the respondent no. 2, Mr. Anurag Kumar Singh,learned counsel for the respondent no. 5, Mr. Mahendra Pratap Singh and Mr. Shyama Charan Dixit, learned counsels for the respondent nos. 6 & 7.

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By means of the present writ petition, the petitioner has assailed the advertisement dated 30-12-2024, issued by the respondent no. 6 and further all the consequential appointments and selection process undertaken thereof, is also under challenge.

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Contention put forth by the learned counsel for the petitioner is that after the Uttar Pradesh Subordinate Service Selection Commission Act, 2014(hereinafter referred to as "Act,2014"), is promulgated by the state legislature and the same came into effect since 20-06-2014, the selection in non government aided institutions should have been done by the Commission and not by any other authority. He submitted that the First

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Statutes of the Lucknow University does not provide the correct process of selection and therefore, the same would not be applicable in the case of the non government aided institutions. He added that the whole process undertaken by the Committee of Management with respect to the appointments on 'Group C' posts is vitiated as the same has no authority to undertake the selection process on 'Group C' posts. He further submitted that the petitioner during the selection process, had made a complaint that the typing test is not being undertaken fairly, but, that remained unheard.

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Adding his arguments, he submitted that there are certain discrepancies started from the publication of the advertisement, by the Committee of Management, uptill the typing test is done and for this reason, the petitioner has also earlier made a complaint, but, the same has not been considered. He next submitted that infact the selection process undertaken by the Committee of Management is impermissible under the law and therefore, the whole selection process is unlawful and is liable to be quashed.

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On the other hand, Mr. Mahendra Pratap Singh and Mr. Shyama Charan Dixit, learned counsels appearing for the respondent nos. 6 & 7 have opposed the contentions aforesaid and submitted that as an admitted position, in paragraph no. 4 of the writ petition, the institute namely, Jai Narain Misra, P.G. College (K.K.C.), Charbagh, Lucknow is a non government aided post graduate college, run and managed by the Committee of Management and is affiliated with the Lucknow University.

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It is contended that it's also an admitted fact that in furtherance to the advertisement published by the Committee of Management, the petitioner applied for the post of Routine Clerk/Junior Assistant as is mentioned in paragraph no. 8 of the writ petition.

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It is further submitted that the process of appointment is not governed with the Act, 2014, rather the provision is prescribed under the First Statutes of Lucknow University(hereinafter referred to as "Statutes") and Clause 24.01 and 25.06 of the Statues, provides the procedure with respect to the selection on Class-III posts in non government aided institutions. The aforesaid provisions reads as under :-

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"24.01. Subject to the provisions of these Statutes the appointing to the posts of class

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three employee shall be made by the management of the college and appointment to the posts of class four employees shall be made by the Principal.

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25.06. (1) (a) The Selection Committee for appointment to the post of. Librarian, Deputy Librarian or Physical Training, Instructor shall consist of:

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(i) the Head of Management or a member of the Management nominated by him, who shall be the Chairman.

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(ii) the Principal of the College.

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(iii) one officer to be nominated by the Director of Education (Higher Education). (b) The Selection Committee for the appointment to the remaining posts referred to in Statute 25.01 or Statute 25.03 either by direct recruitment or by promotion shall consist of.

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(i) the Head of the Management or a member of the Management nominated by him who shall be the Chairman:

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(ii) The Principal of the College;

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(iii) the District Inspector of Schools;

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(iv) the District Employment Officer or an officer authorised by him in this behalf. (2) For the purposes of direct recruitment, to the posts referred to in Statutes 25.01 and 25.03 the vacancy shall be advertised in at least two newspapers having adequate circulation in Uttar Pradesh and names of suitable candidate, shall also be obtained from the concerned District Employment

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43(3) "For appointment to class-IV post, the vacancy shall be advertised in two newspapers having vide circulation in Uttar Pradesh.

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(4) No employee shall be eligible for payment of salary from the Salary Payment Account unless the permission, as contemplated by sub-clause (b) of clause (iii) of Section 60-A of the Act has been accorded.

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5) If the Management does not agree with the recommendations of the-Selection Committee,' it shall refer the matter to the approving authority alongwith reasons of its disagreement, and the decision of the said authority shall be final.

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Referring the aforesaid, he submits that Clause 24.01 of the Statutes provides that subject to the provision of the statutes, the appointment to

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the post of Class III employees shall be made by the management of the college and appointment to the posts of Class IV employees shall be made by the Principal, though the same has subsequently been changed vide government order dated 24-12-2015 and the same was by mode of appointment through the outsourcing agency.

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He added that infact the petitioner in his argument is mistaken and he has wrongly submitted that the procedure with respect to the appointment on Class III post, is governed with the provisions of Act,2014, rather it is apparent from the provision of the First Statutes of the Lucknow University that there is procedure prescribed regarding the appointing authority and the procedure is also prescribed with respect to the appointment on Class-III posts. He further submitted that the Committee of Management after due publication of the advertisement has completed the proceeding, as is prescribed under Clause 25.06 of the First Statutes of Lucknow University and has declared the result in the month of May,2025 and once the petitioner was declared unsuccessful, after passing of about one year, he has approached this court by way of challenging the same selection process, wherein he has been appeared, as is an admitted fact in the pleadings of the writ petition.

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He argued that Hon'ble the Apex Court in number of cases has held that the law never allows a person to both, approbate and reprobate, as denying a fact and at the same time asking the benefit of the same is impermissible. Therefore, the petitioner, who has already appeared in the examination and has been declared unsuccessful, has no right to challenge the same selection process.

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Adding his arguments, he submitted that the government order dated 03-11-2015, is apparent that the procedure and provision is provided for the typing test and therefore, the argument of learned counsel for the petitioner that there is no provision regarding the typing test, is unfounded.

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Concluding his arguments, he submitted that the writ petition has been filed only for the sake of disputing the appointment and selection of the respondents, who have already been given appointments and are working in the institution and are being paid salary. Thus, submission is that no

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interference is warranted.

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Having heard learned counsels for the parties and after perusal of records, it transpires that the institution namely, Jai Narain Misra, P.G. College (K.K.C.), Charbagh, Lucknow is a non government aided post graduate college, which is an admitted fact in between the parties. Further, the petitioner has appeared in the selection process, which is also an undisputed fact.

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When this court examines the validity of the advertisement of appointment, challenged herein, it is apparent that as per the provisions of the First Statutes of the Lucknow University, as mentioned in the preceding paragraphs, the Committee of Management is empowered to make appointment on "Group C' posts.

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Clause 24.01 & 25.06 of the First Statutes of the University of Lucknow has categorically envisaged the procedure of the selection, on class IIIrd posts, in non government aided institutions, affiliated with the Lucknow University. It provides the status of the Committee of the Management as an appointing authority. The constitution of Selection Committee is also prescribed regarding the direct recruitment or by the promotion. The selection committee consists of the Head of the Committee of Management or the member of Committee of Management nominated by him, who shall be the Chairman. The Principal of the College, the District Inspector of Schools and the District Employment Officer or an officer authorised by him, would be the member of the Selection Committee. The Committee of Management has also power to record it's disagreement against the recommendations of the Selection Committee and may refer it to the approving authority and the decision of such approving authority, would be final.

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In the present case, the Committee of Management was in agreement with the recommendation of the Selection Committee and the same has been approved by the approving authority.

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Under the aforesaid scenario, it is beyond doubt that the Committee of Management has power to publish the advertisement for appointment on 'Group C' posts. Therefore, the process instituted by the Committee of

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Management for the advertisement challenged herein, is in noway unauthorized or without the jurisdiction.

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I am also of the considered opinion that the provisions prescribed under the First Statues of Lucknow University readwith the government order dated 03-11-2015 (for typing test), is very well applicable for appointment on "Group C" posts, in non government aided institutions, affiliated with Lucknow University.

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This court finds that the provisions of Act, 2014 are not applicable so far as the appointment in the aforenoted institutions are concerned.

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Now, coming to the second issue that the petitioner had appeared in the selection process and once he was not selected, after passing of about one year, he has challenged the same, thus question is that whether such challenge to selection process is permissible, under the law.

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It is long settled law that a person cannot be permitted to approbate or reprobate. This principle is founded on the rule that no party can accept and reject the same instrument at the same point of time as no one can be allowed to obtain some advantage of a transaction, saying it valid and turn round, saying it void for the purpose of securing some other advantage.

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The Hon'ble Apex Court while dealing with the identical issue, in the case of State of Uttar Pradesh Vs Karunesh Kumar, reported in AIR 2023 SC 52, has held in paragraph no. 21 as follows:-

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21. A candidate who has participated in the selection process adopted under the 2015 Rules is estopped and has acquiesced himself from questioning it thereafter, as held by this Court in the case of Anupal Singh (supra):

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“55. Having participated in the interview, the private respondents cannot challenge the Office Memorandum dated 12-10-2014 and the selection. On behalf of the appellants, it was contended that after the revised Notification dated 12-10-2014, the private respondents participated in the interview without protest and only after the result was announced and finding that they were not selected, the private respondents chose to challenge the revised Notification dated 12-10-2014 and the private respondents are estopped from challenging the selection process. It is a settled law that a person having consciously participated in the interview cannot turn around and challenge the selection process."

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It has categorically been held by the Hon'ble Apex Court that if a candidate participated in the selection process without any protest and after the declaration of the result, he challenges the same selection process, is impermissible.

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Again, in the case of Madan Lal Vs. State of J &K reported in [(1995) 3 SCC 486 : 1995 SCC (L&S) 712], it was held in pagraprah no. 9 as follows:-

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“9. … The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted.”

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Hon'ble Supreme Court in the aforenoted Judgment has decided that no calculated chance can be given to a candidate, who appeared in the selection process and has failed to receive a result favourable.

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The same ratio has also been drawn by the Hon'ble Supreme Court, in the case of K.H.Siraj Vs High Court of Kerala , reported in (2006) SCC 395, wherein paragraph no. 73, the Hon'ble Apex Court has held as follows:-

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“73. The appellant-petitioners having participated in the interview in this background, it is not open to the appellant-petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper.”

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Further the Hon'ble the Apex Court in the case of Rajasthan State Industrial Development & Investment Corporation vs. Diamond & Gem Development Corporation Ltd. reported in (2013) 5 SCC 470 has held as under:-

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" that a party cannot be permitted to “blow hot and cold”, “fast and loose” or “approbate and reprobate”. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.

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26. It is evident that the doctrine of election is based on the rule of estoppel, the principle that one cannot approbate and reprobate is inherent in it. The doctrine of

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estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when he has to speak, from asserting a right which he would have otherwise had.”

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Reiterating the law rendered in the earlier Judgments, it has been held by the Hon'ble Apex Court that once a candidate knowingly accepts, is stopped to deny the validity or the binding effect on him, as principally the rule of estoppel, will also come into effect in such a scenario.

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In view of the law settled by the Hon'ble Apex Court in the aforesaid matters, I am of the considered opinion that the applicant who appeared in the selection process, undisputedly, without any protest, has no right to challenge the selection process, after he was declared unsuccessful.

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Consequently, this court finds no merit in the present writ petition.

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Resultantly, the writ petition is hereby dismissed.

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No order as to costs.

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(Shree Prakash Singh,J.)

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March 17, 2026 AKS

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Digitally signed by :- ANUJ KRISHNA SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench

Ashish Kumar v. State of U.P. Thru. Prin. Secy. Deptt. of Higher Edu. Lko. and 15 Others

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Ashish Kumar v. State of U.P. Thru. Prin. Secy. Deptt. of Higher Edu. Lko. and 15 Others

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