* Author
[2024] 1 S.C.R. 21 : 2024 INSC 7
Case Details
Radhey Shyam Yadav & Anr. Etc.
v.
State of U.P. & Ors.
(Civil Appeal Nos.20-21 Of 2024)
03 January 2024
[J.K. Maheshwari and K.V. Viswanathan*, JJ.]
Issue for Consideration
Three appellants herein were appointed as Assistant Teachers
at the Junior High School on 25.06.1999. From October, 2005,
abruptly their salaries were stopped. Whether the State was justified
in abruptly stopping their salary.
Headnotes
Service Law – Recruitment – Stoppage of salary – The
District Basic Education Officer case was that by order dated
26.12.1997, only two additional posts of Assistant Teacher were
created by the Joint Director of Education – It was averred that
manipulation was made by the management in collusion with
the appellants to show that three posts of Assistant Teacher
were sanctioned – From October, 2005, abruptly salaries of
appellants were stopped – Propriety:
Held: Apart from the bare allegation, absolutely no material was
placed on record to show how the appellants, who were the
applicants from the open market, had colluded or were blameworthy
for any manipulation – According to the State, two posts were, in
fact, sanctioned and it was the School that manipulated it, to make
it three – Even according to the State, admittedly, till date there is
no order terminating their services – In an inquiry report initiated
pursuant to the directions of the High Court, it was found that
the Manager of the School had fraudulently changed the number
of posts from two to three in the order dated 26.12.1997 and
accordingly, an FIR was filed against the manager – There were
no findings of collusion or blameworthiness against appellants for
the alleged manipulation – Appellants were bona fide applicants
from the open market – The alleged mischief, even according to
the State, was at the end of the School and its Manager – In the
light of the various Supreme Court decisions, it will be travesty of
22 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
justice if relief is denied to the appellants – Appellants were not at
fault and the State could not have abruptly stopped their salaries
– Accordingly, the State directed to pay salaries to the appellants
for the period from 25.06.1999 till January, 2002 in full – Also,
the State directed that insofar as the period from October, 2005
till today is concerned, the State shall pay the appellants 50% of
the backwages – The State also directed to allow the appellants
to commence work. [Paras 8, 14, 16, 30, 34, 35]
List of Citations and Other References
Chief Engineer, M.S.E.B and Another vs. Suresh
Raghunath Bhokare, (2005)10 SCC 465; Vikas Pratap
Singh and Ors. vs. State of Chhattisgarh and Ors.,
[2013] 10 SCR 1114:(2013) 14 SCC 494; Anmol Kumar
Tiwari and Others vs. State of Jharkhand and Others,
2021 INSC 101: (2021) 5 SCC 424; Dr. M.S. Mudhol
and Another vs. S.D. Halegkar and Others, [1993] 1
Suppl. SCR 115:(1993) 3 SCC 591; Rajesh Kumar and
Others vs. State of Bihar and Others, [2013] 4 SCR
753:(2013) 4 SCC 690; K. Ameer Khan and Anr. Vs. A.
Gangadharan and Ors., (2001) 9 SCC 84; Sivanandan
C.T. and Others vs. High Court of Kerala and Ors.,
(2023) SCC OnLine SC 994 – relied on.
Sachin Kumar and Ors. Vs. Delhi Subordinate
Service Selection Board (DSSSB) and Ors. [2021]
2 SCR 1073:2021 INSC 147: 2021 (4) SCC 631 –
distinguished.
Vivek Kaisth and Anr. Vs. The State of Himachal Pradesh
and Ors., 2023 INSC 1007:2023 SCC OnLine SC
1485 – referred to.
List of Keywords
Service Law; Recruitment; Stoppage of salary; Bona fide
applicants; Open market; Full salary payment; Backwages.
Other Case Details Including Impugned Order and
Appearances
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.20-21 of 2024.
[From the Judgment and Order dated 15.09.2021 of the High Court of
Judicature at Allahabad in Special Appeal Nos.1435 and 1445 of 2023]
[2024] 1 S.C.R. 23
RADHEY SHYAM YADAV & ANR. ETC. v. STATE OF U.P. & ORS.
Appearances:
Surender Kumar Gupta, Chitvan Singhal, Advs. for the Appellants.
Ms. Sansriti Pathak, Krishnanand Pandeya, Dhawal Uniyal, Naresh
Kumar, Himanshu Sharma, Advs. for the Respondents.
Judgment / Order of The Supreme Court
Judgment
K.V. Viswanathan, J.
1. Leave granted.
2. Radhey Shyam Yadav, Lal Chandra Kharwar and Ravindra Nath
Yadav are the three appellants. On 25.06.1999, they were appointed
as Assistant Teachers at the Junior High School, Bahorikpur,
Maharajganj, District Jaunpur, U.P. (hereinafter referred to as ‘the
School’). From October, 2005, abruptly their salaries were stopped.
They moved the High Court for redressal. Both the learned Single
Judge and the Division Bench declined them relief. Aggrieved, they
are before us in these Appeals.
Brief facts:-
3. From the record, it appears that the School started as a recognized
unaided school in 1983-1984 with one post of Head Master, four posts
of Assistant Teacher, three posts of Peon and one post of Clerk. On
07.10.1996, two posts of Assistant Teacher were increased, raising
the sanctioned strength of Assistant Teacher to six.
4. On 26.12.1997, the Director of Education (Basic) sanctioned certain
additional posts of Assistant Teacher in the aforesaid School. While
the department claims that by the order of 26.12.1997, only two
posts of Assistant Teacher were sanctioned, the Manager/Principal
of the School claiming that three posts were sanctioned, went ahead
and sought permission from the District Basic Education Officer for
issuing advertisement. This was done by their letter of 28.01.1998.
The letter of 26.12.1997 has been placed before us by the State in
the form of an additional affidavit which indicates that only two posts
were sanctioned. The State does not dispute that by the above letter
two posts of Assistant Teacher were sanctioned. In 1998, the School
became an aided School.
24 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
5. Thereafter, responding to the letter of the School, the District Basic
Education Officer by his letter of 20.11.1998 accorded permission
to issue advertisement for appointment of three posts of Assistant
Teachers. On 25.11.1998, an advertisement was issued. The School,
thereafter, on 08.12.1998, wrote a letter to the District Basic Education
Officer to nominate a Member for the selection of the teachers.
In response, the District Basic Education Officer nominated the
Assistant District Basic Education Officer, Bahorikpur as a Member
of the Selection Committee. The Selection Committee duly met and
considered the twelve applications received by it. Seven out of the
twelve applicants, including the three appellants herein, participated
in the interview. By its letter of 27.12.1998, the Selection Committee
informed the District Basic Education Officer that the appellants, on
basis of their ability, have been selected and their case was being
submitted for approval. The order in which the Selection Committee
has sent subject-wise names were as follows:
i. Lal Chandra Kharwar – Science and Math
ii. Radhey Shyam Yadav – English
iii. Ravindra Nath Yadav – Agric & Gen.Topic
It is not disputed that by an order of 09.06.1999, the District Basic
Education Officer granted approval for the appointment of the
appellants. As stated earlier, they were appointed on 25.06.1999
and were working continuously.
6. The undisputed case is that from October, 2005, their salaries were
stopped from being disbursed, forcing them to file Writ Petitions in
the High Court, namely, Civil Misc. Writ Petition No. 10286 of 2007
and Civil Misc. Writ Petition No. 18641 of 2008. The three appellants,
in all, filed two writ petitions. In the writ petitions, the prayer was
for a writ of mandamus commanding the respondents to pay the
arrears of salary from July, 1999 to January, 2002 and continue to
pay salary from October, 2005. It was their case that from the date
of appointment till January 2002, their salary had not been released.
7. The District Basic Education Officer filed counter affidavits to the
writ petitions. It was his case that, by order dated 26.12.1997, only
two additional posts of Assistant Teacher were created by the Joint
Director of Education. It was averred that manipulation was made by
the management in collusion with the appellants to show that three
posts of Assistant Teacher were sanctioned.
[2024] 1 S.C.R. 25
RADHEY SHYAM YADAV & ANR. ETC. v. STATE OF U.P. & ORS.
8. Apart from this bare allegation, absolutely no material was placed on
record to show how the appellants had colluded or were blameworthy
for any manipulation.
9. Subsequent to the counter affidavit filed by the State, on 30.07.2013,
a compliance affidavit was filed. It is averred therein that a detailed
enquiry was conducted in the matter wherein it had transpired that
manipulation was got done at the level of the School in question by
overwriting the sanctioned posts of teachers of the School as “three”
in place of “two”.
10. The Learned Single Judge, by order dated 10.09.2013, held that
if based on the forged order, proceedings were initiated for the
selection of Assistant Teacher, then the entire selection needs to be
cancelled. It was also held that since forgery was committed by the
persons involved in the selection of Assistant Teachers and since
the selection process was not fair, being based on a forged letter,
the candidates who were selected in the selection process are not
entitled to be appointed and retained on the post of Assistant Teacher,
and holding so, the writ petitions were dismissed. The appellants filed
writ appeals. By the impugned order, the appeals were dismissed
reiterating the findings of the learned Singe Judge.
Contentions:
11. We have heard Mr. Surender Kumar Gupta, learned counsel for
the appellants and Ms. Sansriti Pathak, learned counsel for the
respondent-State.
12. Learned counsel for the appellants, after placing a comprehensive
overview of the facts, vehemently contended that there was no fault on
the part of the appellants and for any wrong computation of vacancy,
the appellants ought not to be prejudiced. He further contended that
the State admittedly does not dispute that two vacancies were, in
fact, created and that if at all there was any manipulation, it was at
the level of the School. In the absence of any blameworthy conduct
attributed to the appellants, they ought not to be prejudiced after
serving the School for very long. According to the appellants, they
were continuously teaching till 30.03.2016 by entering their names in
a separate register. However, according to the State, from October,
2005 their salaries have been stopped. In support of their claim,
learned counsel for the appellants relied upon the judgments of this
26 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
Court in Vikas Pratap Singh and Ors. Vs. State of Chhattisgarh
and Ors., (2013) 14 SCC 494 and the recent judgment in Civil Appeal
Nos. 6233-34 of 2023 dated 20.11.2023 titled Vivek Kaisth and Anr.
Vs. The State of Himachal Pradesh and Ors., 2023:INSC:1007 =
2023 SCC OnLine SC 1485.
13. Ms. Sansriti Pathak, learned counsel for the State vehemently
defended the impugned judgment. She contended that where
there was fraud, the whole selection process shall be vitiated. She
relied on Sachin Kumar and Ors. Vs. Delhi Subordinate Service
Selection Board (DSSSB) and Ors. 2021:INSC:147 = 2021 (4)
SCC 631 in support of her proposition. Learned counsel submitted
that there was no case warranting interference under Article 136 of
the Constitution of India.
Discussion and Findings:
14. We have given our thoughtful consideration to the matter and
considered the submissions of the rival parties and perused the
records. The correspondence between the School and the Directorate
of Education culminated in the order of 26.12.1997. There is a dispute
about the number of posts that were sanctioned. According to the
State, two posts were, in fact, sanctioned and it was the School that
manipulated it, to make it three. We will proceed on the basis that the
version of the State is correct. The nominee of the State participated
in the selection process. Twelve candidates had applied and ultimately
three appellants were empanelled for selection. Due approval was
given for the appointment and admittedly they discharged their duties
on their post from 25.06.1999 till September, 2005. Even according
to the State, admittedly, till date there is no order terminating their
services. What impelled the appellants to go to the High Court was
the stoppage of their salary.
15. There is not an iota of material to demonstrate how the appellants,
who were applicants from the open market, were guilty of colluding
in the manipulation.
16. We are also reinforced on this, by the findings in the inquiry report
initiated pursuant to the directions of the High Court in the writ
petitions. In the Inquiry Report, the conclusion was that, it was the
erstwhile District Basic Education Officer, Jaunpur and his office, in
collusion with the Manager of the School, who had taken steps for
appointment/approval. It was mentioned that there was involvement
[2024] 1 S.C.R. 27
RADHEY SHYAM YADAV & ANR. ETC. v. STATE OF U.P. & ORS.
of Shri Ram Dular Yadav, Principal, Shri Triloki Nath Singh, Manager
of the school, the erstwhile District Basic Education Officer, Jaunpur
and also the officials of the District Basic Education Officer, Jaunpur.
It was further found that the Manager of the School has fraudulently
changed the number of posts from two to three in the order dated
26.12.1997 and it was mentioned that Shri Triloki Nath Singh, the
Manager was guilty and accordingly, District Basic Education Officer,
Jaunpur has lodged an F.I.R. against Shri Triloki Nath Singh on
08.07.2013.
17. What is important to notice is, nothing has been mentioned as to
how the appellants, who were applicants from the open market,
were in any way responsible. There is no reference to any material
whatsoever that had been unearthed either in the departmental inquiry
launched or in the criminal investigation. On a pointed query to the
counsel for the State as to whether the appellants were arrayed as
accused in that criminal case, she candidly replied that they were
not. On being further asked as to whether any action has been taken
against the School, she replied that no action has been taken. The
School continues to function with grants-in-aid. She submitted that
the only action taken was to file an F.I.R. against the Manager of the
School, which F.I.R. has since resulted in a charge-sheet.
18. In the inquiry report, the following crucial findings occur. They are
extracted hereinbelow:
“(3) Two additional posts of Assistant Teachers were
created vide the Directorate’s letter No.Samanya(l)
Basic/2117-20/96-97 dated 26.12.1997 (certified copy
enclosed) as a result the number of sanctioned posts of
Asst. Teachers in the school in question became 06 (six).
Earlier this letter was typed for being sent to the Zonal
Assistant Education Director (Basic), Azamgarh which
was later on erased and ‘Varanasi’ was written with pen.
In this letter, in column No.2, the number of sanctioned
post is mentioned as 02 and against column No.5 the
number of Assistant Teachers is clearly mentioned as 8.
This file bears the signatures of Ex-Desk Assistant Shri
Rajnarain Trivedi and Deputy Education Director (Science)
Shri Harish Chandra Tiwari, who has since retired on the
note side of the file there is the order of creation of two
28 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
posts dated 11.8.1997 of late Shri Vinay Kumar Pandey,
Deputy Education Director (Basic).
(4) In the aforesaid post creation order of the Directorate
dated 26.12.1997, the Manager of the institute, showing
03 (three) posts of Assistant Teachers fraudulently and
obtained approval for appointment of 03 Assistant Teachers
S/Shri Lal Chand Kharwar, Radhey Shyam Yadav and
Ravinder Nath from District, Jaunpur vide letter No
B-2/1313-14/99-2000 dated 9.6.98.
(5) The District, Jaunpur sought permission from the
Directorate for payment of salary of the aforesaid three
teachers vide letter No.3909 dated 28.8.2001. With this
letter the Directorate’s letter dated 16.12.1997, which was
sent by the Manager duly certified by the District, Jaunpur
was enclosed in which fraudulently 03(three) in place of 02
(two) in column No.3, 09 (nine) in place of 08 (eight) and
total 12 (twelve) in place of 11 (eleven) against column
No.5 were shown.
(6) After the verification of the said fraudulent letter dated
26.12.1997 sent by the District, Jaunpur, vide the registered
letter No.Arth(4)/1812/2004-05 dated 27.10.2004 and
Letter No.Arth(4)/2310-13/2004-05 dated 19.11.2004, the
District, Jaunpur was directed that in the post creation order
in question the Manager of the institute had fraudulently
mentioned three posts while in the post creation order
dated 28.12.1997 only two posts of Assistant Teachers
have been sanctioned. The Directorate directed the District,
Jaunpur to call for the explanation of the Manager and the
Principal of the institute responsible for the same, and to
furnish the information about the then District, Jaunpur who
had verified the posts and the name, designation and the
place of posting of the then Desk Assistant (photo copy
enclosed). On the aforesaid two letters of the Directorate
no action was taken by the then District, Jaunpur which
prima facie shows that the erstwhile District, Jaunpur and
his office in collusion with the Manager of the school, had
taken steps for appointment/approval in the school in which
the involvement of Shri Ram Dular Yadav, Principal, Shri
Triloki Nath Singh, Manager of the institute, the erstwhile
[2024] 1 S.C.R. 29
RADHEY SHYAM YADAV & ANR. ETC. v. STATE OF U.P. & ORS.
District, Jaunpur and the officials of the office of District,
Jaunpur, is clearly visible.
xxx xxx
(c) The erstwhile District, Jaunpur/erstwhile Finance and
Accounts Officer, Basic Education Office, Jaunpur and the
Desk Assistant are prima facie guilty in granting permission
for advertisement selection, approval and taking steps for
disbursement of salary on the basis of the forged letter
of creation of posts dated 26.12.1997 of the Manager of
the institute and in this respect the Education Director
(Basic) should submit proposal to the Government to
initiate disciplinary action against them. In addition take
action against the concerned Desk Assistants at his level.”
There was absolutely nothing found against the three appellants.
However, the following recommendations were made:-
“(d) The appointments of S/Shri Lala Chand Kharwar,
Radhey Shyam Yadav and Ravindra Nath Yadav, made
pursuant to the said forged letter dated 26.12.1997 are
illegal. They have been paid for the period February, 2002
to October, 2005, the salary is illegal. The same be counted
and action for proportionate recovery be taken against the
guilty erstwhile District/erstwhile Finance and Accounts
Officer, Basic Education and the concerned Desk Officer
by the Director of Education (Basic) as per the settled
procedure and steps taken to terminate the services of
illegally appointed Assistant Teachers S/Shri Lala Chand
Kharwar, Radhey Shyam Yadav and Ravindra Nath Yadav.”
19. In the inquiry, the appellants were not given any opportunity. Even
in the inquiry held behind the back of the appellants, there were
no findings of collusion or blameworthiness against them for the
alleged manipulation. Even as on date, the appointment order dated
25.06.1999 and the approval order of 09.06.1999 have not been
revoked. With no finding of guilt against the appellants and with no
material against them, their salaries had been stopped and they have
been prevented to sign on the regular attendance register, admittedly
from October, 2005. The contention of the appellants is that they
continued with their teaching work up till 30.03.2016 entering their
names on a separate attendance register.
30 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
20. We may also note the fact that in the F.I.R. lodged by the State on
17.07.2015 also, there is no allegation against the appellants or any
other applicants and only two persons were named in that F.I.R.
They were Vinod Kumar Chaturvedi, Senior Assistant and Rajendra
Prasad Yadav, Senior Assistant. Both were employees in the office
of the District Basic Education Officer. The allegation was that the
documents related to approval of appointments/teacher listings from
the concerned schools were missing and that the said two officers
were responsible for maintaining the records.
21. In this background, the question that really falls for consideration is,
was the State justified in abruptly and without anything more, stopping
the salary? We are constrained to answer the question in negative.
22. Assuming the case of the State to be true and taking it at its highest,
the factual position would come to this, namely, that while the State
sanctioned two vacancies, the school went ahead and recruited
three. The State has no proof of commission of any malpractice
by the appellants. The State approved their appointments, and the
approval order till date has not been cancelled. The appointments
have not been terminated. No action has been taken against the
school and the school continues to receive the aid.
23. Chief Engineer, M.S.E.B. and Another vs. Suresh Raghunath
Bhokare, (2005) 10 SCC 465 is a case which, on facts, has a striking
resemblance to the case at hand. The respondent therein had been
recommended by the department and was selected as line-helper
in the appellant-Board. On the ground that the recommendation
was allegedly made fraudulently, the respondent was dismissed
from service. The complaint preferred by the respondent had been
dismissed by the Labour Court. The Industrial Court reversing
the findings of the Labour Court, quashed the termination of the
respondent therein and directed reinstatement. Writ Petition filed
by the appellant therein was dismissed by the High Court. This
Court, while observing that in the absence of any overt act being
attributed to the respondent, held that it could not be inferred that
the respondent had a role in sending fraudulent list, solely on the
basis of the presumption that he got the job. Para 5 of the judgment
which is crucial for the decision of the present case is extracted
herein below:-
[2024] 1 S.C.R. 31
RADHEY SHYAM YADAV & ANR. ETC. v. STATE OF U.P. & ORS.
“5. The entire basis of the dismissal of the appellant
depends upon the factum of the alleged misrepresentation
attributed to the respondent. The Industrial Court in its
impugned order has noticed the fact that the respondent
was appointed in April 1994 pursuant to the selection
procedure followed by the competent authority and that
he was selected by the panel of Selection Committee
consisting of 6 members which included the very same
Social Welfare Officer who had sent the proposal including
the name of the respondent for appointment. It also noticed
the fact that the selection in question was made after an
oral interview and the required test as also the medical
examination. The Industrial Court also noticed the fact that
the appointment of the respondent was confirmed after
one-year period and thereafter the respondent has been
working without any complaint. The said Industrial Court
also noticed the fact that the termination of the respondent
was based on a show-cause notice issued on 5-7-1999
which was replied to by the respondent on 17-7-1999
and the termination was made in a summary procedure
permissible under Rule 90(b) of the Service Regulations.
The Industrial Court after perusing the pleadings and the
notice issued to the respondent came to the conclusion
that the alleged misrepresentation which is now said to
be a fraud was not specifically pleaded or proved. In the
show-cause notice, no basis was laid to show what is the
nature of fraud that was being attributed to the appellant.
No particulars of the alleged fraud were given and the said
pleadings did not even contain any allegation as to how
the appellant was responsible for sending the so-called
fraudulent proposal or what role he had to play in such
proposal being sent. It also noticed from the evidence of Mr
Waghmare, Social Welfare Officer who sent the proposal
before the Labour Court that he did not utter a single word
as to whether the said supplementary list was ever called
for by the department concerned or not. Thus applying the
basic principle of rule of evidence which requires a party
alleging fraud to give particulars of the fraud and having
found no such particulars, the Industrial Court came to the
conclusion that the respondent could not be held guilty of
32 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
fraud. The said finding of the Industrial Court has been
accepted by the High Court. Mr. Bhasme though contended
that the fraud in question was played in collusion with the
Social Welfare Officer and 2 other employees of the Board
and action against the said 2 employees of the Board has
been taken, but by that itself we are unable to accept the
argument of Mr. Bhasme that there is material to support
the contention of the Board that the appellant had also
contributed to making the misrepresentation at the time of
applying for the job with the Board. In the absence of any
such particulars being mentioned in the show-cause notice
or at the trial, attributing some overt act to the respondent,
we do not think the Board can infer that the respondent
had a role to play in sending a fraudulent list solely on the
basis of the presumption that since the respondent got a
job by the said proposal, the said list is a fraudulent one.
It was the duty of the Board to have specifically produced
the material to prove that the respondent himself had the
knowledge of such a fraud and he knowingly or in collusion
with other officials indulged in this fraud. Since there is no
such material on record, on the facts of the instant case,
the Industrial Court and the High Court have come to
the right conclusion that the alleged fraud has not been
established by the appellants, hence, this is not a fit case
in which interference is called for. This appeal, therefore,
fails and the same is dismissed.”
(emphasis supplied)
24. In Vikas Pratap Singh (supra), this Court, while protecting the
selection of the appellants, had the following to say:-
“27. Admittedly, in the instant case the error committed by
the respondent board in the matter of evaluation of the
answer scripts could not be attributed to the appellants
as they have neither been found to have committed any
fraud or misrepresentation in being appointed qua the
first merit list nor has the preparation of the erroneous
model answer key or the specious result contributed to
them. Had the contrary been the case, it would have
justified their ouster upon re-evaluation and deprived
[2024] 1 S.C.R. 33
RADHEY SHYAM YADAV & ANR. ETC. v. STATE OF U.P. & ORS.
them of any sympathy from this Court irrespective of
their length of service.”
25. Vikas Pratap Singh (supra) was followed in Anmol Kumar Tiwari
and Others vs. State of Jharkhand and Others, 2021:INSC:101 =
(2021) 5 SCC 424. This Court, in para 11, held as follows:-
“11. Two issues arise for our consideration. The first relates
to the correctness of the direction given by the High Court
to reinstate the writ petitioners. The High Court directed
reinstatement of the writ petitioners after taking into account
the fact that they were beneficiaries of the select list that
was prepared in an irregular manner. However, the High
Court found that the writ petitioners were not responsible
for the irregularities committed by the authorities in
preparation of the select list. Moreover, the writ petitioners
were appointed after completion of training and worked
for some time. The High Court was of the opinion that the
writ petitioners ought to be considered for reinstatement
without affecting the rights of other candidates who were
already selected. A similar situation arose in Vikas Pratap
Singh case [Vikas Pratap Singh v. State of Chhattisgarh,
(2013) 14 SCC 494 : (2013) 3 SCC (L&S) 100], where
this Court considered that the appellants therein were
appointed due to an error committed by the respondents in
the matter of valuation of answer scripts. As there was no
allegation of fraud or misrepresentation committed by the
appellants therein, the termination of their services was set
aside as it would adversely affect their careers. That the
appellants therein had successfully undergone training and
were serving the State for more than 3 years was another
reason that was given by this Court for setting aside the
orders passed by the High Court. As the writ petitioners
are similarly situated to the appellants in Vikas Pratap
Singh case [Vikas Pratap Singh v. State of Chhattisgarh,
(2013) 14 SCC 494 : (2013) 3 SCC (L&S) 100], we are
in agreement with the High Court that the writ petitioners
are entitled to the relief granted. Moreover, though on pain
of contempt, the writ petitioners have been reinstated and
are working at present.”
(emphasis supplied)
34 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
26. To the same effect is the ratio of the judgment of this Court in Dr.
M.S. Mudhol and Another vs. S.D. Halegkar and Others, (1993)
3 SCC 591 wherein, in para 6, it was observed as under:-
“6. Since we find that it was the default on the part of the
2nd respondent, Director of Education in illegally approving
the appointment of the first respondent in 1981 although
he did not have the requisite academic qualifications
as a result of which the 1st respondent has continued
to hold the said post for the last 12 years now, it would
be inadvisable to disturb him from the said post at this
late stage particularly when he was not at fault when his
selection was made. There is nothing on record to show
that he had at that time projected his qualifications other
than what he possessed. If, therefore, in spite of placing
all his cards before the selection committee, the selection
committee for some reason or the other had thought it
fit to choose him for the post and the 2nd respondent
had chosen to acquiesce in the appointment, it would be
inequitous to make him suffer for the same now. Illegality,
if any, was committed by the selection committee and the
2nd respondent. They are alone to be blamed for the same.”
27. In Rajesh Kumar and Others vs. State of Bihar and Others, (2013)
4 SCC 690, this Court finding the appellants to be innocent parties
ruled that even if in the re-evaluation the appellants do not make
the grade, still the appellants appointments ought to be protected.
Para 21 & 22.3 are extracted herein below:-
“21. There is considerable merit in the submission of
Mr Rao. It goes without saying that the appellants were
innocent parties who have not, in any manner, contributed
to the preparation of the erroneous key or the distorted
result. There is no mention of any fraud or malpractice
against the appellants who have served the State for
nearly seven years now. In the circumstances, while inter
se merit position may be relevant for the appellants, the
ouster of the latter need not be an inevitable and inexorable
consequence of such a re-evaluation. The re-evaluation
process may additionally benefit those who have lost
the hope of an appointment on the basis of a wrong key
[2024] 1 S.C.R. 35
RADHEY SHYAM YADAV & ANR. ETC. v. STATE OF U.P. & ORS.
applied for evaluating the answer scripts. Such of those
candidates as may be ultimately found to be entitled to
issue of appointment letters on the basis of their merit
shall benefit by such re-evaluation and shall pick up their
appointments on that basis according to their inter se
position on the merit list.
22.3. In case the writ petitioners, Respondents 6 to 18
also figure in the merit list after re-evaluation of the answer
scripts, their appointments shall relate back to the date
when the appellants were first appointed with continuity
of service to them for purpose of seniority but without any
back wages or other incidental benefits.”
28. In K. Ameer Khan and Anr. Vs. A. Gangadharan and Ors., (2001)
9 SCC 84, a case involving the wrong computation of vacancies,
while protecting the promotion of the appellants, this Court had the
following to say:-
“2. .....The appellants have been selected quite some
time back and the first appellant has been promoted to
a higher grade. The appellants were not responsible for
the wrong computation of vacancies done by the second
respondent. After the empanelment and appointment of
the appellants, it is brought to our notice that there have
been fresh promotions to the post of Assistant Controller
of Stores at least on two occasions in June 1995 and May
1997. In a new selection, five Scheduled Caste candidates
and four Scheduled Tribe candidates have been selected.
The appellants could not participate in the same as they
had already been promoted to the higher grade. Now,
when the appellants have been working in the higher grade
from 1994 onwards, it would not be equitable to disturb
their promotions…….”
29. More recently, this Court in Vivek Kaisth (supra), following the
judgment of the Constitution Bench in Sivanandan C.T. and Others
vs. High Court of Kerala and Ors., (2023) SCC OnLine SC 994
protected the appointments of the appellants even after finding that
their appointments were in excess of the advertised vacancies. This
Court held as under:-
36 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
“32. … …. Today, when we are delivering this judgment the
two appellants have already served as Judicial Officers for
nearly 10 years. Meanwhile, they have also been promoted
to the next higher post of Civil Judge (Senior Division). In
this process of their selection and appointment (which has
obviously benefitted them), nothing has been brought to
our notice which may suggest any favouritism, nepotism or
so-called blame as to the conduct of these two appellants,
in securing these appointments. The High Court in fact
notes this factor. While placing the blame on the State
Commission it records that “………. there is nothing on
record suggestive of the fact that any mala fides were
behind the selection of respondents Nos.4 and 6……….”
“34. The appellants were not entitled for any equitable relief
in view of the High Court as they were the beneficiaries
of an illegality committed by the Selection/appointing
authority. But then it failed to take this question further,
which in our opinion, it ought to have done. What the High
Court never answered was as to how much of this blame
of “illegal” selection and appointment would rest on the
High Court (on its administrative side). Undoubtedly, with
all intentions of timely filling of the vacancies, the High
Court still cannot escape the blame…..”
“36. What is also important for our consideration at this
stage is that the appellants in the present case have
been working as Judicial Officers now for nearly 10 years.
They are now Civil Judge (Senior Division). These judicial
officers now have a rich experience of 10 years of judicial
service behind them. Therefore, unseating the present
appellants from their posts would not be in public interest.
Ordinarily, these factors as we have referred above, would
not matter, once the very appointment is held to be wrong.
But we also cannot fail to consider that the appellants were
appointed from the list of candidates who had successfully
passed the written examination and viva voce and they
were in the merit list. Secondly, it is nobody’s case that
the appellants have been appointed by way of favouritism,
nepotism or due to any act which can even remotely be
called as “blameworthy”. Finally, they have now been
[2024] 1 S.C.R. 37
RADHEY SHYAM YADAV & ANR. ETC. v. STATE OF U.P. & ORS.
working as judges for ten years. There is hence a special
equity which leans in favour of the appellants. In a recent
Constitution Bench decision of this Court in Sivanandan
C.T. and Ors. v. High Court of Kerala and Ors. (2023)
SCC OnLine SC 994 though the finding arrived at by this
Court was that the Rules of the game were changed by
the High Court of Kerala by prescribing minimum marks
for the viva voce, which were not existing in the Rules
and therefore in essence the appointment itself was in
violation of the Rules, yet considering that those persons
who had secured appointments under this selection have
now been working for more than 6 years it was held that
it would not be in public interest to unseat them.”
(emphasis supplied)
30. The situation of the appellants in the present case is no different
from the individuals whose appointments were protected in the cases
cited hereinabove. They had no blameworthy conduct. They were
bona fide applicants from the open market. The alleged mischief,
even according to the State, was at the end of the School and its
Manager. It will be a travesty of justice if relief is denied to the
appellants. Enormous prejudice would also occur to them.
31. Ms. Sansriti Pathak, learned counsel, who ably defended the case for
the State, made a valiant attempt to draw support from the judgment
in Sachin Kumar (supra). In that case, what was in issue was the
validity of the cancellation of the selection process for recruitment
to the 231 vacancies in the post of Grade 2 (DASS) (Head Clerk).
This Court, while reversing the judgment of the Tribunal and the
High Court held that in that case there was a basic denial of access
to Tier I examination. The Court further held that the nature of the
allegations was found substantiated upon the careful examination by
the first Committee whose report showed that the credibility of the
process itself had been eroded. In that case, the total vacancies for
which recruitment was to be made was 231 and 61,179 candidates
were found to be eligible. The first Committee which enquired
found that there were serious irregularities including cheating and
impersonation in the course of both Tier 1 Screening examination
and Tier 2 Main examination. The Secretary (Vigilance) had also
pointed out in his opinion there was a huge difference between the
38 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
number of applications received, namely, 62056 and the number of
candidates who had appeared in the Tier 1 examination i.e. 8224,
indicating thereby that proper information regarding the exam was not
given to the candidates. The second Committee had observed that no
irregularity was found in the documents of the 281 candidates. The
Tribunal holding that 281 candidates were free from blame, set aside
the order cancelling selection process, clarifying that the appointments
to be offered would be subject to the ACB investigation. The High
Court had held that the scope of the order of the Tribunal should
be confined to the six applicants who have moved the Tribunal. The
High Court had also held that it was possible to determine that at
least in respect of 281candidates there was no evidence of use of
unfair means and that it was a case where separation of the tainted
from the untainted was possible.
32. Reversing the judgment of the Tribunal and the High Court, this Court
held that the irregularities were not confined to acts of malpractice
or unfair means on the part of specific group of persons and that
the report of the Committee found deficiencies of a systemic nature
which cast serious doubts on the legitimacy of the entire process of
recruitment. This Court held that in such a situation where a decision
is taken by the government to cancel the entire process, the decision
cannot be held to be irrational or arbitrary.
33. This judgment in Sachin Kumar (supra) is clearly distinguishable
from the case at hand. First of all, Sachin Kumar (supra) involved
the cancellation of the selection process before any appointments
were made. No rights were crystallized to any of the candidates.
The issue was about the validity of the cancellation of the selection
process. Sachin Kumar (supra) falls in that genre of cases
concerning validity of cancellation of the selection process due to
largescale irregularities. The Case at hand is proximate to the facts
and ratio in Suresh Raghunath Bhokare (supra) and cases of that
ilk set out hereinabove.
34. We feel that the appellants were not at fault and the State could not
have abruptly stopped their salaries. Accordingly, we set aside the
judgments of the High Court dated 15.09.2021 in Special Appeal Nos.
1435/2013 and 1445/2013 and direct that the State shall pay the
salaries of the appellants for the period from 25.06.1999 till January,
2002 in full. We also direct that insofar as the period from October,
[2024] 1 S.C.R. 39
RADHEY SHYAM YADAV & ANR. ETC. v. STATE OF U.P. & ORS.
2005 till today is concerned, the State shall pay the appellants 50%
of the backwages. Since the appointment order and the approval
order are still in force, we declare that the appellants have always
been and are deemed to be in service. Apart from 50% backwages,
as ordered above, we direct that all consequential benefits, including
seniority, notional promotion, if any, and fitment of salary and other
service benefits due, be granted to the appellants. We direct the
State to comply with these directions within four weeks from today.
We also direct that the appellants be allowed to commence work
within the said period of four weeks.
35. We notice from the record that the Committee of Management,
Junior High School, Bahorikpur was arrayed as fifth respondent
in the writ petition before the High Court. They are also arrayed
as fifth respondent before us in these appeals. Before us, even
though notice has been served on the Committee of Management,
Junior High School, Bahorikpur, nobody has entered appearance. It
appears that even before the learned Single Judge and the Division
Bench, the Committee of Management did not appear. We grant
liberty to the State to issue a show-cause notice to the Committee
of Management (R-5), after setting out clearly the charge pertaining
to the alleged manipulation of the sanction order and altering of
the figure from two to three. After receiving reply, if any, and after
holding an inquiry with an opportunity of personal hearing, the State
will be at liberty to pass an appropriate order. In the event of the
Committee of Management being exonerated, no further question
will arise. In the event of them being found guilty of the charge, in
view of any finding that may be arrived that the manipulation prior to
the recruitment was done at the level of the employees of the school
(whether by themselves or in collusion with the officials), we grant
liberty to the State to recover from the Committee of Management
one-third of the arrears, as ordered to be paid, hereinabove. This
direction will serve the ends of justice in the matter.
36. The appeals are allowed in the above terms. No order as to costs.
Headnotes prepared by: Ankit Gyan Result of the case: Appeals allowed.
