Neutral Citation No. - 2025:AHC-LKO:16463-DB Chief Justice's Court Case :- SPECIAL APPEAL DEFECTIVE No. - 723 of 2012 Appellant :- State Of U.P. Thru. Secretary Irrigation Division And Ors. Respondent :- Chandra Bhuwan Pushpakar Counsel for Appellant :- C.S.C. Counsel for Respondent :- S.P. Tiwari Hon'ble Arun Bhansali,Chief Justice Hon'ble Jaspreet Singh,J. C.M. Condonation of Delay Application No. 91681 of 2012: 1. For the reasons indicated in the application, supported by affidavit, seeking condonation of delay in filing the appeal, the same is allowed. 2. Delay in filing the appeal is condoned. Appeal: 1. This special appeal is directed against order dated 12.03.2012 passed in Service Single No. 5412 of 1999, whereby the writ petition filed by the respondent has been allowed and appellants have been directed to consider and appoint the respondent on the post of Seenchpal from the date persons lower in merit to him were so appointed with all consequential benefits. 2. The writ petition was filed by the respondent seeking a mandamus commanding the appellants to appoint him on the post of Seenchpal from the date persons lower in merit to him were appointed and given regular posting. 3. Certain posts of Seenchpal were advertised pursuant to which, the respondent applied and was selected, he was given training but after completion of training, he was not given appointment though persons lower in merit to him were accorded appointment. The respondent submitted representations, a letter dated 22.03.1999 was sent by Superintending Engineer, 16 Circle, Irrigation Work, Pratapgarh to the Chief Engineer informing that the respondent was first in merit and persons at serial Nos. 4 and 5 in the merit list were given regular appointment as Seenchpal by Executive Engineer, Raebareli ignoring respondent's higher merit and therefore, his claim for appointment is justified and he should be accorded appointment. As no action was taken, the writ petition was filed. 4. A counter affidavit was filed by the appellants, inter alia, indicating that pursuant to the communication dated 22.03.1999, sent by Superintending Engineer, the matter was under consideration before Chief Engineer but in the meanwhile, a Government Order was issued on 05.05.1999 imposing ban on further appointments on the post of Seenchpal declaring it a dying cadre and therefore, the respondent could not be appointed on the said post. However, it was not disputed that respondent was at serial No. 1 in the merit list while persons at merit serial No. 4 and 5 were accorded appointment and no justification was given as to why those lower in merit were accorded appointment ignoring the respondent, who was higher in merit, rather on the top. 5. Learned Single Judge, after hearing the parties, came to the conclusion that the non-appointment of respondent despite respondent's higher merit was sheer arbitrary, discriminatory and illegal. The Government Order dated 05.05.1999, which was issued subsequent to according appointment to persons lower in merit, could not be relied on for denying the benefit to the respondent and consequently, allowed the writ petition, directed consideration and grant of appointment to the respondent with all consequential benefits. 6. Feeling aggrieved, the present special appeal has been filed. 7. Learned Standing Counsel made vehement submissions that the learned Single Judge was not justified in allowing the writ petition inasmuch as by Government Order dated 05.05.1999, a ban was imposed on according future appointments on the post of Seenchpal declaring it a dying cadre, no appointment could be accorded. Further submissions were made that merely because appointment was accorded to those lower in merit, illegally by the Executive Engineer, the same cannot be made basis for according appointment to the respondent contrary to the ban imposed. It was pointed out that subsequent thereto, by order dated 24.11.2000, the appointment granted to those lower in merit was cancelled and on that count also, the appeal deserves to be allowed. 8. Learned counsel for the respondent made vehement submissions that the entire action of the appellants in denying appointment to the respondent, who was at top position in the merit list while according appointment to those who were at serial Nos. 4 and 5 is, on its face, arbitrary, discriminatory and illegal and therefore, the learned Single Judge was justified in allowing the writ petition. Further submissions have been made that the mere fact that a Government Order was issued on 05.05.1999, imposing ban on future appointments, could not affect the case of the respondent inasmuch as they were selected pursuant to an advertisement issued well before the ban was imposed, accorded training and those lower in merit were already accorded appointment before the ban was imposed and therefore, there was no reason for the appellants to deny the appointment to the respondent. It was further pointed out that though the appointment accorded to those lower in merit was cancelled, in Service Single No. 7479 of 2000, the order cancelling the appointment was stayed and ultimately, the writ petition against the cancellation was allowed on 29.03.2018 and therefore, the plea, raised in this regard, also has no substance and therefore, the appeal deserves dismissal. 9. We have considered the submissions made by counsel for the parties and have perused the material available on record. 10. Undisputed facts are that the respondent was selected pursuant to the advertisement issued by the appellants and was placed at serial No. 1 in the merit list, he was accorded training. However, post training, while those lower in merit were accorded appointment, the respondent was not accorded appointment. When the challenge was laid to the non- appointment, the plea raised by way of counter affidavit was that on account of the ban imposed by Government Order dated 05.05.1999, the appointment could not be made, however, it was not denied that those lower in merit were accorded appointment. 11. Learned Single Judge, as noticed hereinbefore, finding the action as arbitrary and discriminatory, allowed the writ petition. 12. Learned counsel for the appellants could not raise any new plea except for the plea raised pertaining to the ban and the fact that those lower in merit, who were accorded appointment, their appointments have been cancelled. The plea raised pertaining to imposing of the ban was not confined to the respondent. If the ban was there, the same pertained to all those who were selected, however, once the appointment was accorded to those lower in merit, there is no reason to deny the said appointment to the respondent, who was first in merit list. 13. No reason worth the name has been indicated as to why those at serial Nos. 4 and 5 of the merit list were preferred over respondent, who was first in merit and therefore, the arbitrariness and discrimination is writ large on record and therefore, the action of the appellants, in this regard, cannot be sustained. 14. So far as the fact that appointment accorded to those lower in merit has been cancelled, the said cancellation also has been set aside in Service Single No. 7479 of 2000, decided on 29.03.2018 and during pendency of the said writ petition, there was a stay on the cancellation. In those circumstances, the plea raised, with regard to the cancellation of appointment of those lower in merit, also is of no consequence. 15. In view of the above discussion, we do not find any reason to interfere with the order impugned passed by learned Single Judge. There is no substance in the present appeal, the same is, therefore, dismissed. Order Date :- 19.3.2025 Mukesh Pal (Jaspreet Singh, J) (Arun Bhansali, CJ) Digitally signed by :- MUKESH PAL High Court of Judicature at Allahabad, Lucknow Bench