Allahabad High Court
Manoj Kumar Verma vs State Of U.P.Throu.Secy.Deptt.Of Home … on 2 July, 2026
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on: 17.04.2026 Delivered on: 02.07.2026 HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW SPECIAL APPEAL No. - 142 of 2019 Manoj Kumar Verma ..Appellant(s) Versus State of U.P.Throu.Secy.Deptt.of Home Guards Lko.another ..Respondent(s) Counsel for Appellant(s) : Km. Vishwa Mohini, Vimal Kumar Counsel for Respondent(s) : C.S.C., Court No. - 1 HON'BLE RAJAN ROY, J.
HON’BLE MANJIVE SHUKLA, J.
(Per: Rajan Roy, J.)
(1) Heard Km. Vishwa Mohini, learned counsel for the appellant and Sri Nishant Shukla, learned Addl. Chief Standing Counsel for the State.
(2) This is an appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 (hereinafter referred to as ‘the Rules, 1952’) challenging the judgment and order dated 26.02.2019 passed in Writ Petition No.2182 (S/S) of 2013 [Manoj Kumar Verma vs. State of U.P. & Ors.].
(3) The facts of the case in brief are that three posts, namely, Paid Platoon Commander, Hawaldar Prashikshak and Block Organizer in the U.P. Police were advertised for recruitment vide Advertisement No.367/1997 dated 31.08.1998. About one and a half months after issuance of the said advertisement the said posts were taken out of the purview of the rules known as U.P. Procedure for Direct Recruitment for Group ‘C’ Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 1998 (hereinafter referred to as ‘the Rules, 1998’). Inspite of it, the recruitment was conducted as per the Rules, 1998 though the Rules which govern the terms and condition of service including recruitment pertaining to the three posts were the Rules known as the U.P. Home Guards Service Rules, 1982 (hereinafter referred to as ‘the Rules, 1982’).
(4) The petitioner filed a Writ Petition bearing No.2674 (S/S) of 2000 ‘Manoj Kumar Verma vs. State of U.P.’ which remained pending. Others aggrieved by the recruitment including one Anil Kumar Singh who had applied for the post of Hawaldar Prasikshak also filed a Writ Petition bearing No.6635 (S/S) of 2000 ‘Anil Kumar Singh vs. State of U.P. & Ors.‘ which in fact came to be decided on 27.07.2001 while the writ petition of the appellant-petitioner remained pending.
(5) By the said judgment dated 27.07.2001 rendered in Anil Kumar Singh (supra), it was categorically held that the Commandant General had erred in applying the Rules of 1998 for recruitment of the post in question. Secondly, these three posts had been taken out from the purview of the Rules, 1998, therefore, for this reason also, the recruitment under the said Rules was bad and the relevant rules under which recruitment should have been held were the Rules of 1982. Consequent to the said judgment as it pertained only to the post of Hawaldar Prasikshak, the opposite parties cancelled the recruitment qua the said post and held the same afresh in terms of the Rules, 1982 but no such cancellation took place with regard to the post of Paid Platoon Commander and Block Organizer.
(6) After the judgment dated 27.07.2001, the writ petition of the petitioner bearing No.2674 (S/S) of 2000 was also decided albeit, nine or ten years later i.e. on 04.08.2010, with a direction to the opposite parties to consider the representation of the appellant-petitioner in the light of the judgment in Anil Kumar Singh (supra).
(7) A decision was taken on 17.02.2011 rejecting the claim of the petitioner which led to filing of another writ petition by the appellant-petitioner bearing No.3668 (S/S) of 2012 ‘Manoj Kumar Verma vs. State of U.P.’ which was decided on 06.07.2012 and the order of rejection dated 17.02.2011 was quashed. A direction for reconsideration was issued. This reconsideration did not take place till filing of a contempt petition bearing No.3065 of 2012 ‘Manoj Kumar Verma vs. Sri Shambhu Nath Shukla & Anr.‘ and it is only then that a decision was taken in pursuance to the judgment dated 06.07.2012, however, once again, the representation was rejected which led to filing of a third Writ Petition bearing No.2182 (S/S) of 2013 which got dismissed by the writ court on 26.02.2019 and it is this judgment which is under challenge in this appeal.
(8) The writ court has dismissed the writ petition bearing No.2182 (S/S) of 2013 on the ground that the appellant-petitioner having participated in the selection without demur is estopped from challenging the same in view of decision of Hon’ble the Supreme Court in the case of ‘Dhananjay Malik and Ors. vs. State of Uttaranchal and Ors.‘ reported in (2008) 4 SCC 171 and also as the selected candidates had not been impleaded in the writ petition. In this regard, the writ court has relied upon decision of Hon’ble the Supreme Court in the case of ‘B. Ramanjini & Ors. vs. State of A.P. & Ors.‘ reported in (2002) 5 SCC 533.
(9) The contention of the appellant’s counsel in nutshell was that the learned Single Judge has erred in dismissing the writ petition ignoring the fact that there is already an adjudication on the selection process and the rules which were violated in respect of the same advertisement, albeit, another post, vide judgment dated 27.07.2001 rendered in Writ Petition No.6635 (S/S) of 2000 ‘Anil Kumar Singh vs. State of U.P. & Anr.’ and has also erred in ignoring the fact that the legal position as to the validity of the selection held under the Rules, 1998 which were inapplicable had already been decided in the said judgment which had not been assailed by the State and had attained finality and the learned writ court has also ignored the fact that these objections were neither taken nor made a ground for dismissing the earlier writ petitions filed by the petitioner who in fact has been litigating ever since the year 2000.
(10) The contention is that the selection for three posts including the post of paid Platoon Commander for which the petitioner had applied, was initiated by a common advertisement, the other two posts being Hawaldar Prashikshak and Block Organizer. The rules which were applicable for recruitment to the aforesaid posts were the U.P. Home Guards Service Rules, 1982, instead, the recruitment was held in terms of the U.P. Procedure for Direct Recruitment for Group ‘C’ Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 1998, that too, when after issuance of the advertisement, the aforesaid three posts had been taken out of the purview of application of the said Rules, 1998 by the State Government vide Notification dated 09.10.1998 which is an admitted fact.
(11) The submission is that once those posts were taken out from the purview of the application of the aforesaid Rules of 09.10.1998 by the State Government then the recruitment should have been initiated afresh in terms of Rules of 1982 as held by a Single Judge Bench of this Court in the judgment dated 27.07.2001.
(12) The submission is that in compliance of the said judgment which pertained to recruitment of one of the three posts advertised i.e. the post of Hawaldar Prasikshak, the State Government cancelled the said selection and held it afresh but so far as the other two posts of Block Organizer and Paid Platoon Commander are concerned merely because in the writ petition in which the said judgment dated 27.07.2001 was passed these posts were not involved, although they were also advertised by the same advertisement, the selection was not cancelled.
(13) She also pointed to the fact that, in fact, prior to filing of the said Writ Petition No.6635 (S/S) of 2000, the petitioner’s writ petition challenging the same had already been filed but it remained pending and it is only after the aforesaid judgment dated 27.07.2001 that the petitioner’s Writ Petition bearing No.2674 (S/S) of 2000 came to be decided in terms of the judgment rendered in the case of Anil Kumar Singh (supra) i.e. on 04.08.2010. The said judgment reads as under:-
“The petitioner had appeared in the examination for recruitment to the post of Paid Platoon Commander but when the petitioner was not selected, the present writ petition was filed in the year 2000.
Counter and rejoinder affidavits were exchanged. In the meantime, other colleague of the petitioner, Anil Kumar Singh had filed writ petition no.6635(SS)2000 on the same subject, for the same examination and also for the same post.
The matter was considered in detail by this Court and judgment dated 27.7.2001 was passed. In this judgment, rules and its applicability has been tested and a comprehensive guideline has also been provided in this case. The case of Anil Kumar Singh was allowed and it was directed that the marks will be calculated in particular manner and the Rules, 1982 will be applicable to the petitioner.
Since the matter is identical, it will be appropriate that the opposite parties may consider the case of the petitioner in the light of the aforesaid judgment.
Accordingly the opposite parties are directed that in case the petitioner makes a representation along with the aforesaid judgment, the same shall be decided by the opposite parties within a period of three months from the date a certified copy of this order along with the representation annexing the aforesaid judgment, is placed before him.
With these observations and direction, the writ petition is disposed of. ”
(14) Learned counsel for the appellant-petitioner has relied upon the decisions reported in AIR (1966) SC 1631 ‘Jang Singh vs. Brij Lal’; 1999 (6) SCC 49 ‘Purushottam vs. Chairman, MSEB’; 2005 (23) LCD 1130 ‘Mudit Verma vs. Cooperative Tribunal’ & 2008(7) ADJ 715 ‘Satish Kumar Pal vs. State of U.P.’ to contend that the appellant-petitioner should not be made to suffer for the lapse of the opposite parties and he should be offered appointment.
(15) On the other hand, learned Standing Counsel contended that recruitment was held under the Rules, 1982 and it is under the Note to Rule 15(2) of the said Rules that a decision was taken by the Commandant General to adopt the procedure etc as prescribed in the Rules, 1998. Further, all the posts of Paid Platoon Commander had already been filled up except one post which was re-advertised in 2011. He also asserted that appellant-petitioner having participated in the selection could not have turned around and challenged the terms thereof, on being unsuccessful. Moreover, he had not specifically challenged the selection and had not impleaded the affected parties who would be the selected candidates who had already been appointed way back in 2011. Therefore, according to him, the judgment of the learned Single Judge did not require interference in an intra-court appeal.
(16) On a bare reading of the judgment dated 04.08.2010 passed in the writ petition filed by the petitioner, we find that the writ petition of the petitioner was disposed of in terms of Anil Kumar Singh (supra) in the sense that claim of the petitioner was directed to be considered in the light of the said judgment and his representation was to be decided accordingly.
(17) It is not out of place to mention that during course of arguments, we were informed and an affidavit was also filed to the effect that, some posts of Paid Platoon Commander remained unfilled till 2010 and it is only in 2011 that they were re-advertised, therefore, the petitioner contends that he could very well be adjusted against the said vacant post after holding the selection in terms of the Rules, 1982.
(18) We find that the claim of the petitioner was rejected vide order dated 17.02.2011 stating that the selection for the post of Paid Platoon Commander had been completed in 2000 itself and the selected persons were in service for ten years. In the said order dated 17.02.2011 rejecting the claim of the petitioner, it was stated that in the advertisement dated 10.08.1998 itself it was mentioned that the physical test would only be of qualifying nature, meaning thereby, no marks would be awarded for the said physical test nor would they be considered for assessing the merit. The petitioner knowingly appeared in the examinations in 1998-1999 and 2000 in the physical test, written text and interview respectively. In the final select list prepared on the basis of written examination and interview, the name of the petitioner did not find mention. The petitioner accepted the conditions of recruitment in the advertisement and the recruitment was conducted in terms of the advertisement. The recruitment for the post of Paid Platoon Commander had already been completed in the year 2000 and the selected candidates had been appointed in May/June, 2000 itself. The judgment in Anil Kumar Singh (supra) was not applicable in the case of the petitioner as it pertained to the post of Hawaldar Prashikshak and not Paid Platoon Commander and recruitment to the post Paid Platoon Commander had already been completed in the year 2000 and the selectees had been working for the past ten years. For these reasons, the claim was rejected.
(19) In our opinion, while doing so, the Commander General, Home Guard failed to appreciate the legal position as to the rules under which the recruitment for the post of Paid Platoon Commander was to be held which in fact were the 1982 Rules under which marks were to be awarded for physical test and they were to be taken into consideration for determining the merit which was not done, instead, the recruitment was held was as per the 1998 Rules that too after the State Government had taken out the aforesaid post of Paid Platoon Commander, Hawaldar Prasikshak and Block Organizer from the purview of the said Rules of 1998. Moreover, by applying the Rules of 1998, marks had been awarded for educational qualifications which were taken into consideration for determining the final merit, whereas, under the Rules, of 1982 there was no such provision.
(20) Further, being aggrieved by the aforesaid order dated 17.02.2011, the petitioner filed a second Writ Petition bearing No.3668 of 2012 [Manoj Kumar Verma vs. State of U.P. & Anr.] which was disposed of on 06.07.2012 in the following terms:-
“Heard Kr. Vishwa Mohini, learned counsel for the petitioner and learned Standing counsel for the opposite parties.
Petitioner had earlier filed a writ petition bearing No.2674 (S/S) of 2000 in which an order was passed in favour of the petitioner on 4.8.2010. By this order the benefit of the judgment passed in writ petition No.6635 (S/S) of 2000 (Anil Kumar Singh Vs. State of U.P. and others) was given to him. The Court had directed the opposite parties to consider the case of the petitioner. The same has been rejected vide annexure No.11 dated 17.2.2011 at page 54 of the writ petition. Petitioner filed contempt petition No.540 (C) of 2011. The same was disposed of on 10.5.2012 with a direction to approach the writ court. The petitioner after the vacations has filed instant writ petition.
The petitioner has drawn the attention of the Court towards rejection order which is primarily based on the ground that much water has flown since the year 2000. An attempt has been made to make the distinction between the case of Sri Anil Kumar Singh and the petitioner on the ground that Anil Kumar Singh was Hawaldar Instructor while the petitoiner is claiming the post of Paid Platoon Commander. The petitioner has referred Rule 15 of Home Guards Rules, 1982, which has been upheld by the Court. The Rule-15 has been quoted at page 35 of the writ petition. It is clear that the selection committee was constituted for a number of posts including Paid Platoon Commander. The distinction attempted to be drawn by the opposite parties, thus falls flat. The petitioner has placed reliance upon the case of Santosh Kumar Vs. State of U.P., 2008 (26) LCD 1126 passed in writ petition No.1145 (S/S) of 1997 decided on July 3, 2008.
In the present case, the petitioner had filed the petition well within time in the year 2000. The judgment has come in 2001. Petitioner’s case was pending before this Court when the judgment was passed at that time. Petitioner says that he had no control over the writ petition and if the Court takes long time in deciding the matter it is beyond his control. Petitioner says that identically placed petitioner should not be deprived of the rights if his case is found identically placed but is decided later in time. Petitioner has specifically referred paragraph 15 and 16 of the judgment. It is not necessary to quote elaborately from this judgment.
Accordingly, the Court comes to the conclusion that the rejection order dated 17.2.2011 passed by opposite parties is not based on correct appraisal of facts and the law. It is accordingly set aside. The opposite parties are directed to once again consider the case of the petitioner in the light of the judgment mentioned aforesaid. The decision shall be taken within a maximum period of one month from the date a certified copy of this order along with the said judgment is placed before the opposite parties.
With these observations the petition stands finally disposed of. ”
(21) This Court observed in the above-quoted judgment that the petitioner had filed the writ petition well within time in the year 2000 itself and the judgment in Anil Kumar Singh (supra) had been rendered in 2001, meaning thereby, the petitioner’s case was pending before the Court when the judgment was passed. The Court found merit in the contention of petitioner that the pendency of the writ petition and its disposal was not in the hands of the petitioner and that he being an identically placed person vis-a-vis Anil Kumar Singh should not be deprived of the rights if his case is found identical merely because it was decided later. The Court noticed the reliance placed by the petitioner upon para no.15 and 16 of the judgment in Anil Kumar Singh (supra). Accordingly, it opined that the rejection of his claim vide order dated 17.02.2011 was not correct. A direction was issued to consider the case of the appellant-petitioner once again in the light of the said judgment in Anil Kumar Singh (supra).
(22) However, even after such reconsideration, the claim was again rejected by the Commandant General, Home Guards vide order dated 07.02.2013 reiterating what had been stated in the earlier rejection, albeit, more elaborately.
(23) In the said order dated 07.02.2013, it has been admitted by the Commandant General that vide Notification dated 09.10.1998, the post of Paid Platoon Commander, Hawaldar Prashikshak and Block Organizer were taken out from the purview of application of Rules of 1998. However, according to him, in order to ensure transparency, the then Commandant General did not change the recruitment procedure to bring it in tune with the Rules 1982 and held it in terms of the Rules, 1998, a plea which would be considered hereinafter. The selection was sought to be justified in terms of the advertisement issued in terms of the Rules, 1998 as no marks were to be awarded by the physical test which was to be treated as qualifying examination only.
(24) This order of rejection dated 07.02.2013 was passed only after initiation of contempt proceedings bearing Contempt No.3065 of 2012 [Manoj Kumar Verma vs. Sri Shmabu Nath Shukla Principal Secy & Anr.].
(25) The aforesaid rejection led to filing of Writ Petition No.2182 (S/S) of 2013 which came to be dismissed vide judgment dated 26.02.2019 as already referred earlier leading to filing of this special appeal by the appellant-petitioner.
(26) We had heard this writ petition at length on 09.03.2026 and found that, inspite of adjudication by learned Single Judge Bench of this Court in the case of Anil Kumar Singh (supra) on 27.07.2001 wherein the legal position as to the rules under which the recruitment was to be held, was declared/ clarified and the said judgment so far as it clarified/ declared the legal position as to the application of the rules and validity of the advertisement, even if qua one of the three posts advertised, was a judgment in rem which was binding upon the respondents, who, in fact, complying the said judgment had cancelled the selection pertaining to the post of Hawaldar Prashikshak, were under an obligation to follow the same procedure in respect of the other two posts but did not do so and we had accordingly called upon the opposite parties to justify their action and in that process while recording our prima facie observation as regards violation of rights of the appellant-petitioner by holding the selection under a rule which was not applicable, we had also made it known to the opposite parties that in the event the rights of the appellant-petitioner are found to have been violated and if it was found that the State Authorities have acted arbitrarily, the appellant-petitioner may be entitled to compensation, therefore, the opposite parties should show cause as to why if we arrive at such a conclusion, the appellant-petitioner be not suitably compensated and heavy cost be not imposed. The said order dated 09.03.2026 reads as under:-
“1. Heard Km. Vishwa Mohini, learned counsel for the appellant and Shri Nishant Shukla, learned State Counsel for the respondents.
2. After hearing the parties ultimately what appears to be the case is that inspite of the Government Order dated 09.10.1998 by which certain posts including that of Hawaldar Instructor, Block Organizer, Paid Platoon Commander were taken out of the purview of the Rules known as U.P. Recruitment of Group C Employees (Outside the Purview of Public Service Commission) Rules, 1998 (hereinafter referred to as “Rules, 1998”) the advertisement which had already been issued on 10.08.1998 for recruitment to the said post in the light of the aforesaid Rules, 1998, was not withdrawn, nor were the conditions of recruitment changed and recruitment was still held in accordance with the Rules, 1998 dehors the Government Order dated 09.10.1998. This issue came up for consideration before learned Single Judge of this Court in writ petition no.6635 (S/S) of 2000 which was allowed on 27.07.2001. In the said judgment the Government Order dated 09.10.1998 was noticed and it was concluded that after issuance of the said Government Order the procedure prescribed in the Home Guards Service Rules, 1982 should have been followed under which the marks obtained in the physical examination should have been added to the marks obtained in the written examination and then, based thereon, the candidates successful should have been called for interview. Accordingly, the learned Single Judge quashed the interview and issued directions for holding the same afresh in the light of what had been stated in its judgment dated 27.07.2001.
3. The appellant/ petitioner also filed a writ petition no.2674 (S/S) of 2000. A copy of the said petition is not on record. The said petition was disposed of on 04.08.2010 taking note of the judgment passed in the case of Anil Kumar Singh and a direction was issued to consider the representation of the appellant/ petitioner, which was considered and rejected. This rejection was again put to challenge in writ petition no. 3668 (S/S) of 2012 which was disposed of on 06.07.2012 and the order of rejection dated 17.02.2011 was quashed. A direction was issued to take a fresh decision in the light of the judgment mentioned in the case of Anil Kumar Singh (supra). Thereafter, decision was taken on 07.02.2013 rejecting the claim on the ground that inspite of the Government Order dated 09.10.1998 the advertisement issued on 10.08.1998 was not amended nor recalled and the physical examination was only a qualifying examination and there being no requirement to add the marks obtained therein with the written examination as such the claim of the appellant/ petitioner was again rejected. However the question still remains whether this could be stated by the Deputy Commandant General in the order dated 07.02.2013, is it not in the teeth of the judgment in the case of Anil Kumar Singh (supra). If it is so, then a situation has been created by the State where the appellant/ petitioner has been made to file repeated petitions for a cause which he has been agitating right since 2000 and now he is almost 54 years of age. To contend, as Shri Nishant Shukla, learned State Counsel does based on the averments made in the counter affidavit that because in the case of Hawaldar Instructor, that is Anil Kumar Singh (supra), there was a judgment, therefore, the said selection pertaining to Hawaldar Inspector was cancelled and it was held afresh, but, there being no such order of the Court in respect of Platoon Commander for which the appellant/ petitioner had applied, therefore, no such action was taken, is absolutely unacceptable for the reason that there was a common advertisement for the post of Hawaldar Inspector and Platoon Commander and once this Court in the case of Hawaldar Inspector had decided a question of law, then, as the judgment, which was in rem, so far as the validity of the selection held in terms of the Rules, 1998 is considered, the State cannot take a plea that because there was no order in respect of the Platoon Commander therefore it did not cancel the interview held for the post of Platoon Commander and did not adopt the same criteria which it applied in the case of Hawaldar Inspector in pursuance to the judgment in the case of Anil Kumar Singh (supra). Apparently, the State authorities have acted arbitrarily by following a set of rules which were not to be followed thereby causing grave prejudice to the appellant/ petitioner who has been litigating since 2000. We shall explore the possibility of providing employment to the appellant/ petitioner, if that is not possible for some reason, then the appellant/ petitioner shall certainly be compensated if his rights have been violated and the State has acted arbitrarily.
4. We direct the Commandant General, Home Guards, Lucknow to join these proceedings through video conferencing on the next date and also that some Gazetted Officer in his Directorate should appear in person to justify the action impugned on the next date. The Commandant General, Home Guards, Lucknow is also directed to file personal affidavit before the next date in the light of what has been noticed herein-above, especially as to why, if we find that the rights of the appellant/ petitioner have been violated and the State authorities have acted arbitrarily, the appellant/ petitioner be not suitably compensated and heavy cost be not imposed.
5. List on March 24, 2026. ”
(27) Thereafter, an affidavit has been filed by the opposite parties which does not say anything new. Again the same old stand has been reiterated that the selections were held under the Rules, 1998 so as to ensure transparency. In the said counter affidavit, it has been accepted by the opposite parties that the Rules of 1982 were/ are applicable to the post of Hawaldar Instructor, Block Organizer and Platoon Commander for recruitment. It is also admitted that by government notification dated 09.10.1998 during the selection for recruitment to the post of Hawaldar Instructor, Block Organizer and Platoon Commander the said posts were excluded from application of the Rules, 1998. It is also admitted to the opposite parties that as per Rule 15(3) of the Rules, 1982, marks were to be awarded for the physical efficiency test and written test and thereafter, candidates were to be called for interview from respective categories based on the aforesaid result but the Commandant General did not find it legal to modify the standards/ selection process prescribed in the advertisement during the selection to recruitment to the aforesaid post. He did not change the examination/ selection process advertised in the advertisement dated 10.08.1998. Accordingly, no marks were awarded for the physical efficiency test as was required under the Rules, 1982.
(28) In this regard, we asked the State’s counsel as to what is meant by the language used in para no.9 of the said counter affidavit whereupon it was clarified that it means that no marks were awarded for the events which took place during the physical efficiency test, as per the Rules, 1982.
(29) In this context, reference was also made to a Note to Rule 15(2) of the Rules, 1982 under which the Commandant General, Home Guards is empowered to determine the syllabus and procedure of the competitive examination for the direct recruitment to the post of Hawaldar Instructor, Block Organizer and Platoon Commander to contend that based on this exercise it was for the Commandant General to decide as to whether to continue the selection in terms of the Rules, 1998 or to cancel the same and hold it under the Rules, 1982 but he decided to continue under the Rules, 1998. This is how the impugned action is sought to be justified.
(30) We are constrained to observe that this explanation is absolutely in the teeth of the judgment of learned Single Judge in Anil Kumar Singh‘s case (supra) which has attained finality, wherein, this aspect was considered and it was held that Commandant General could not have possibly exercised such power dehors statutory rules and in any case, it was beyond the scope of the Note to Rule 15(2). We may in this context quote relevant extract of the judgment dated 27.07.2001 in Anil Kumar Singh (supra) as far as applicability of the Rules, 1982 vis-a-vis the Rules, 1998 and on the authority of the Commandant General who deviated from the said procedure, is concerned:-
“It is not disputed that the State Government has excluded the Group ‘C’ posts of Home Guards Department, U.P. from the applicability of the Uttar Pradesh Procedure for direct recruitment for Group ‘C’ posts (Outside the purview of the U.P.Public Service Commission) Rules, 1998 and the Uttar Pradesh Home Guards Service Rules, 1982 are fully applicable for recruitment of Group ‘C’ post in Uttar Pradesh Home Guards Department but the Commandant General took a decision to adopt the procedure laid down by the State Government for recruitment of Group ‘C’ posts (Outside the purview of the Uttar Pradesh Public Service Commission) Rules, 1998 and he did not follow the procedure for recruitment prescribed in the Uttar Pradesh Home Guards Service Rules, 1982 and the provisions of the Uttar Pradesh Procedure for Direct Recruitment for Group, C, posts (Outside the purview of the Uttar Pradesh Public Service Commission) Rules, 1998 are being followed. The question before this Court is whether in view of the note written in Rule 15 of the Uttar Pradesh Home Guards Department Subordinate Service Rules, 1982, the Commandant General U.P.Home Guards had jurisdiction to adopt the procedure for recruitment contrary to the procedure prescribed in Rules, 1982 and also could he adopt the procedure prescribed in Group ‘C’ posts outside purview Rules, 1998 specifically when in the said Rules, the State Government was empowered to exclude the posts of Group ‘C’ from the application of the Rules and following the statutory provisions, the State Government has vide Notification dated 9.10.1998 excluded the Group ‘C’ posts of the Home Guard Department, U.P.from the application of the said rules and also vide amendment dated 28.8.1998, the applicability of Rule 1998 was excluded in respect of the posts in which the minimum prescribed qualification was fixed as High School or equivalent to it and in the instant matter certainly for the Home Guards holding honorary posts, the minimum prescribed qualification was High School or equivalent to the same.
It is also a matter of consideration that the advertisement for recruitment on Group ‘C’ posts in U.P. Home Guards Department was made in the News paper (Times of India) of 10.8.1998 and the exemption of the applicability from the Group ‘C’ posts of U.P. Home Guards Department was made on 9.10.1998 i.e. after the advertisement was published. The amendment to sub-rule 3 Rule 2 of Rules 1998 had also come into force on 28.8.1998 i.e. also after the advertisement was made but the fact remains that the exclusion of Group ‘C’ posts of U.P. Home Guards Department was granted from retrospective effect i.e. from the date of enforcement of the Rules, 1998. Therefore, the Rules, 1998 were never deemed to have been implemented. It is also a matter of consideration that there was no rule regarding physical fitness in Group ‘C’ Rules, 1998 and the provisions made in the advertisements regarding physical fitness was taken in accordance with the Rules, 1982 but vide publication dated 3.9.1998 made in Jan Morcha Daily’ Faizabad as well as in ‘Times of India’ the Commandant General, Home Guards U.P.Lucknow extended the date of submission of application forms till 15.10.1998 and the fact is that the amendment dated 28.8.1998 had already come into force by that time. The procedure for calling the candidate for interview was also changed through the said advertisement. The particulars of the procedure were laid down in the original advertisement and they were not changed even later also and thus the same procedure remained in existence as was published in the advertisement dated 10.8.1998.
According to the Advertisement dated 10.8.1998, the procedure published was that first of all the physical fitness will be judged and then the candidate who will be found physically fit according to the norms published in the advertisement will be allowed to appear in the written examination and a merit list will be prepared and the candidates will be called for interview in required number but when the Notification dated 28.8.1998 was already issued the procedure laid down in the Rules, 1998 could have been published with corrigendum but as contended that the Commandant General, Home Guards, U.P.Lucknow has full jurisdiction to change the procedure and according to the procedure prescribed by the Commandant General against the provisions of the Rules, 1982 to the extent that the procedure prescribed in Group ‘C’ Rules, 1998 was to be adopted, no corrigendum or amendment was issued subsequently. The reliance has been placed on the Notification dated 28.8.98 in which the proviso to sub-rule 4 of Rule 5 has been added by amendment which is being reproduced as under :-
“Provided that the posts for which some physical standard have been prescribed as essential qualification or as mode of recruitment for the post, the candidates shall be required undergo prescribed physical tests before the written examination and only those candidates shall be allowed to appear in the test for selection who came upto the minimum standards prescribed for the post.”
But this amendment was made after the publication of advertisement in the News paper dated 10.8.1998 alongwith the provisions that the Rules, 1998 shall not apply on the posts which have the prescribed minimum academic qualification more than Intermediate education or equivalent to the same recognized by the State Government.
Since the applicability of the Rules, 1998 has been excluded for recruitment in U.P.Home Guards Group ‘C’ posts thus, the fact remains that only the U.P.Home Guards Service Rules.1982 remained effective which were liable to be followed. Now the question is whether the Commandant General, Home Guards U.P.Lucknow could prescribe his own procedure for recruitment contrary to what has been prescribed in the. U.P.Home Guards Service Rules, 1982. In this regard, first of all the note mentioned below Rule 15 of the Rules, 1982 is liable to be perused again. According to the same only the syllabus and procedure for competitive examination shall be prescribed by the Commandant. General, Home Guards U.P.Lucknow, therefore, the syllabus and procedure for competitive examination is prepared at the stage of obtaining marks by the candidate appeared in the examination or test. The syllabus of competitive examination is one thing, prescribing the procedure for holding competitive examination is another thing and preparing of result on the basis of the examination is different to the above two. First of all, the syllabus of examination is prepared thereafter the procedure for holding examination is followed and only then, the marks are given on the basis of the performance of the candidate in the competitive examination. Nothing has been indicated in the Rules, 1982 as to what is the standard of the competitive examination. In every examination the standard is prescribed which is called syllabus like question papers of General Knowledge, Hindi, English, Science, Arts, Maths, Letter writing, Essay writing etc. prescribing a standard of examination. The procedure prescribed in the Rules, 1982 is only after the marks obtained by the candidates in the written and physical test, the standard of physical test has been prescribed in Rule 13 but the procedure for written examination has not been prescribed in the Rules, 1982. Therefore the procedure to hold competitive examination like scheme of examination, fixing of dates, maximum marks prescribed etc. were to be prescribed by the Commandant General, Home Guards U.P.Lucknow but he could not prescribe anything contrary to which has been laid down in the Rules, 1982. He has also no jurisdiction to take a decision which was to be taken by the Selection Committee only constituted under the Rules, 1982. The order of the Commandant General could have supplement the rules but could not have supplant the rules.
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In Rule 15(3) of the Rules, 1982, it has been provided that the standard for passing the candidate in the interview is to be fixed by the Selection Committee. The marks obtained by the committee in the written test and the physical test have to be tabulated on the basis of the result of the test. It has also been mentioned therein that the marks awarded to each candidate in the interview shall be added to the marks obtained by him in the test. But in the advertisement, it was mentioned that the marks awarded in the physical test shall not be included in the selection.
In view of the above this Court has come to the conclusion that the minimum norms fixed for physical test and the condition that no candidate shall be called for appearing in the written examination unless he qualities in each physical test separately was within the powers of the Commandant General, Home Guards U.P.Lucknow as prescribed in the note given below Rule 15 of the Rules, 1982 and the order to that extent was supplement to the Rules, 1982. The minimum norms fixed in each physicals test, a written test and interview etc. was also not beyond the scope of the powers conferred to the Commandant General, Home Guards U.P.Lucknow under the said ‘note’ but denial of inclusion of the marks obtained in the physical test in the aggregate in the selection is violative of provisions of sub-rule 3 of Rule 15 of the Rules, 1982. In this regard, it is to be considered for example; for 100 Mts race, the minimum time prescribed is 14.5 Seconds. If, a candidate completes the said race in 10 Seconds and the other one completes it in 14 Seconds then naturally, the candidate completing the said race in 10 Seconds would be better candidate in comparison to the candidate who completes the said race in 14 Seconds, and therefore depriving him of the marks gained by him in total marks in the Selection, would be an injustice to him as it will adversely affect his selection which would be against the provisions of the Rules, 1982 and would amount to departure from the statutory Rules ie. the Rules, 1982.
In view of the above mentioned facts and circumstances, it has become clear that the opposite parties have adopted a criterion in making selection/recruitment in question contrary to what has been prescribed in the Statutory Rules which were in force at the time of selection in question ie. “The Rules, 1982″ However, this Court does not dispute the marks awarded to the candidates separately in physical fitness and written examination but due the fact that the opposite parties have adopted wrong criterion in counting the marks and consequently called the candidates for interview on that basis and the deserving candidates according to the Rules, 1982 were deprived of opportunity of interviews, the interviews are liable to be declared against the law.”
(31) We are also of the opinion that Note to Rule 15(2) of the Rules, 1982 which in fact were not being applied for recruitment could not have been pressed into service to hold the selection under the Rules, 1998. The scope of Note to Rule 15(2) of the Rules, 1982 did not permit it. The Commandant General only had the power to decide the syllabus and the procedure of the competitive examination and these words could not be construed to empower him to take a decision under the Rules, 1982 to the effect that the recruitment will not be held under the Rules, 1982 but under the Rules, 1998. Such an understanding of Rule 15(2) of the Rules, 1982 and its scope would be absolutely unreasonable. Apparently, the opposite parties have acted in the teeth of the judgment passed in Anil Kumar Singh (supra).
(32) We have already observed in our order dated 09.03.2026 that the said judgment so far as it decides the legal question as to the applicability of the Rules 1998 and 1982 for recruitment to the post in question was a judgment in rem and should have been followed not only in respect of the post of Hawaldar Prasikshak but the other two posts also including the post of Paid Platoon Commander and selection in respect thereof should also have been cancelled once it became known to opposite parties that wrong Rules of 1998 had been applied. By not doing so, a situation was created where as against three posts offered for recruitment by a common advertisement, governed by common Rules, in respect of one of the posts i.e. Hawaldar Prasikshak, recruitment was cancelled and held afresh under the Rules of 1982 in view of judgment of Anil Kumar Singh (supra) but in respect of other two posts this was not done and the illegality committed continued and was allowed to perpetuate.
(33) The justification offered by the opposite parties in their counter affidavit in this regard is absolutely unacceptable. It is not only in the teeth of the earlier judgment with which we agree on the point aforesaid but also beyond the scope of Rule 15(2) of the Rules, 1982. It is surprising that on the one hand recruitment was not being held in terms of the said Rules of 1982 but Rule 15(2) thereof was/is being invoked/ pressed to justify holding of recruitment under another set of Rules, 1998 which in fact became inapplicable by virtue of the notification of the State Government dated 09.10.1998 by which the aforesaid posts were taken out from the purview of the Rules, 1998, even if, after issuance of advertisement dated 10.08.1998. It is worthwhile to mention that by then, only an advertisement had been issued and nothing had proceeded substantially. It is nobody’s case that selection had already been completed. In fact, it could not have been done as the intervening period was only of about one and a half month. In any case, once the posts itself were taken out from the purview of the Rules, 1998 then there was no question of recruitment proceeding any further under the said Rules of 1998. The same should have been cancelled and should have been held under the Rules, 1982 as has already been held by the learned Single Judge Bench of this Court in the case of Anil Kumar Singh (supra).
(34) The State counsel referring to the stand of the State Government in the counter affidavit contended that the recruitment was held under the Rules, 1982 but the procedure of the 1998 Rules was followed in view of the decision of Commandant General referable to Rules 15(2) of the Rules, 1982. This contention for the reasons already mentioned is absolutely fallacious and misconceived. There has been gross-violation of the Rules, 1982 as regards the procedure of recruitment by importing alien rules to the recruitment in question in the garb of powers which the Commandant General did not have.
(35) We may also point out that the lame excuse offered by the opposite parties to justify the recruitment as per the procedure prescribed in the Rules of 1998 that this was done by the Commandant General to ensure transparency is absolutely without any factual and legal basis. We fail to understand as to how the recruitment became more transparent because of following the Rules, 1998 which were not applicable and how would it have been less transparent merely because of application of the Rules, 1982. Moreover, the Commandant General had no authority or jurisdiction to take such a decision in the name of transparency to apply the Rules, 1998 certainly not under Rule-15(2) of the Rules, 1982 as already discussed.
(36) What strikes us is that even after the judgment in Anil Kumar Singh (supra) where the fundamental error of law was pointed out in the context of one post, though, the error was rectified in respect of the said post, but, no correctional measures were taken in respect of other two posts, in an apparently arbitrary and unconstitutional manner violating the Fundamental Rights of fair treatment/ consideration in matters of public employment under Article 14 and 16(1) of the Constitution of India.
(37) The prejudice which has been caused to the petitioner is that no marks were awarded for physical test as was required under the Rules, 1982, a legal position which is admitted to the opposite parties in their counter affidavit. Further, marks were awarded for educational qualification for which there was no provision under the Rules, 1982, though there may have been some provision under the Rules, 1998, but, these were inapplicable. Therefore, by applying incorrect Rules and holding recruitment under the Rules, 1998 which were not applicable and by not following the Rules, 1982 which were admittedly applicable, we have no manner of doubt that the appellant-petitioner who has been litigating since the year 2000 was denied a fair opportunity of participation and consideration in the matter of public employment, therefore, violating his Fundamental Rights under Article 16(1) read with Article 14 of the Constitution of India.
(38) For all these reasons, we once again reiterate that the opposite parties committed gross illegality and their action was absolutely unconstitutional in holding the recruitment under the Rules of 1998 which were not applicable and not holding the recruitment in terms of the Rules, 1982.
(39) In this context, we may also refer to the judgment impugned of the learned Single Judge. With respect, the learned Single Judge has failed to appreciate the aforesaid factual background against which the writ petition was filed. He has also ignored the fact that the legal position was already settled in Anil Kumar Singh (supra) and the writ petition of the petitioner with regard to the selection in question was filed prior to it though it was decided subsequently with a direction to the opposite parties to consider his claim in the light of the judgment in Anil Kumar Singh (supra), therefore, in these circumstances, it was too late in the day to dismiss the writ petition of the appellant-petitioner on the ground that the appellant-petitioner was estopped from challenging the terms of recruitment after being unsuccessful in it. The learned Single Judge failed to appreciate the legal position in this regard as is evidenced in a judgment reported in (1997) 9 SCC 527 ‘Raj Kumar & Ors. vs. Shakti Raj & Ors.‘ wherein Hon’ble the Supreme Court after considering the judgment in ‘Madan Lal vs. State of J&K‘ reported in (1995) 3 SCC 486 observed that the principle of estoppel, acquiescence and waiver does not apply where the recruitment has been held dehors the rules. It is a judgment by a three Judge Bench of Supreme Court of India. In that case also incorrect rules and procedure of recruitment were applied. Relevant extract of the judgment are reproduced below:-
“16. …. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal vs. State of J&K [(1995) 3 SCC 486] and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the selection Board or the method of Selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case, thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action take by the Government are not correct in law.”
(40) We may in this very context refer to another judgment of Hon’ble the Supreme Court reported in (2019) 20 SCC 17 ‘Dr.(Major) Meeta Sahai vs. State of Bihar and Ors.‘. Paragraph nos.16, 17 and 19 of which read as under:-
16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar (2010) 12 SCC 576, observing as follows:
16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant’s name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.
The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.
17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.
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19. The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to only against the respondents interpretation of work experience as part of merit determination. Since interpretation of a statute or rule is the exclusive domain of Courts, and given the scope of judicial review in delineating such criteria, the appellants challenge cannot be turned down at the threshold. However, we are not commenting specifically on the merit of appellants case, and our determination is alien to the outcome of the selection process. It is possible post what is held hereinafter that she be selected, or not.”
(41) In a case where recruitment had been held under Rules which were not applicable and the Rules applicable were not applied, a candidate cannot be estopped from challenging such selection or seeking relief in respect thereof merely because he had participated thereunder and was unsuccessful as in such a scenario the selection itself would be void ab initio and unconstitutional. Moreover, it would involve denial of fair and equal opportunity of consideration in the matter of public employment therefore being violative of Article 14 and 16 of the Constitution of India which would not attract the principle of estoppel, acquiescence and waiver.
(42) Prescription of a condition in the advertisement that physical efficiency test would only be of qualifying nature itself was dehors the Rules of 1982 which required marks to be given for such test and to be taken into consideration along with the marks in written examination for deciding merit of a candidate for being called for interview, therefore, this by itself does not impede the petitioner from approaching this Court in view of the judgments referred hereinabove.
(43) Of course, the selection and appointment having been held in 2000, the affected candidates should have been impleaded but this is inconsequential as we do not propose to quash the selection. Further, non-impleadment aforesaid by itself does not take away from the fact that the opposite parties applied wrong rules for recruitment of the post and did not correct themselves even after the judgment in Anil Kumar Singh (supra) as regards the post of Paid Platoon Commander and acted arbitrarily, dehors the Rules and in violation of Articles 14 and 16(1) of the Constitution of India. The appellant was denied his fundamental right of fair consideration in the matter of public employment by applying wrong Rules.
(44) Further, we also do not propose to direct selection and appointment of the petitioner as the appellant is 54 years of age and as we do not have any material before us nor can we possibly arrive at any conclusion in the absence of such material that if the selection had been held in terms of the Rules, 1982, i.e. the marks had been awarded for the physical efficiency test which would have been taken into consideration along with marks in the written examination for calling selected candidates for interview and the marks for educational qualification had not been awarded, then, in such eventuality, the petitioner would have necessarily been called for such interview and would have ultimately selected. We would be entering into the realm of imagination if we venture into this hypothetical exercise any further but the fact of the matter is that because of the arbitrariness and gross-illegalities committed by the opposite parties, the selection was never held in terms of the Rules, 1982. In this context, we have also perused the response under the Right to Information Act appended to the letter dated 03.11.2016 and 11.11.2016.
(45) In this view of the matter, so far as the relief to be given to the petitioner is concerned while we find ourselves handicapped to declare the appellant-petitioner as having been selected for the post of Paid Platoon Commander and to direct the opposite parties to offer him appointment, we have no doubt that his valuable Fundamental Right to a fair consideration for public employment in accordance with Relevant Rules was violated by the opposite parties by their arbitrary and unreasonable actions.
(46) We are, therefore, of the opinion that to balance the equities and in keeping with the notice which we had given to the opposite parties vide our order dated 09.03.2026 about compensation and imposition of cost regarding which no acceptable and plausible explanation has been offered by the opposite parties and the one offered has already been rejected by us earlier, we are of the opinion that ends of justice would be suffice if an amount of Rs.5,00,000/- (Rupees Five Lakhs Only) is awarded to the petitioner for the unconstitutional actions of the opposite parties resulting in deprivation of his Fundamental Rights of fair consideration in matter of public employment as aforesaid and in addition to it, as the appellant-petitioner has been litigating since the year 2000 and has filed three writ petitions apart from this appeal, cost of litigation be paid by the opposite parties to the appellant-petitioner which we quantify at Rs.2,00,000/- (Rupees Two Lakhs Only). The aforesaid amount shall be paid by the opposite parties within two months, failing which, it shall become payable with interest at the rate of 8 % per annum from the expiry of period of two months from the date of judgment till it is actually paid. The impugned judgment and the order impugned in the writ petition are quashed subject to the observations made hereinabove.
(47) Accordingly, the appeal is allowed in part. The writ petition is also disposed of in light of the above.
(Manjive Shukla,J.) (Rajan Roy,J.)
July 2nd, 2026
Shanu/-
