SPLA/860/2010 of STATE OF U.P. THRU SECRETARY HOME and ORS. Vs ABHISHEK KUMAR S/O RAGHURAJ SINGH on 15 December 2025

1. Heard Sri Badrish Kumar Tripathi, learned Standing Counsel for the State. None appears on behalf of the respondent.

2. In response to our order dated 28.10.2025, an affidavit has been filed by the appellant after serving copy thereof on learned counsel for the respondent on 21.11.2025 but till date no rejoinder affidavit has been filed.

3. After hearing learned counsel for the appellants and going through the records what comes out is that if the benefit of the Home Guard certificate was not extended to the respondent-petitioner then he would not have been selected for appointment as Bandi Rakshak, meaning thereby, only because of the Home Guard certificate which was taken into consideration after it having been brought on record subsequently that he got selected and was offered appointment on 07.02.2006 on probation of two years. The case of the appellants is that on verification it was found that respondent-petitioner never worked as Home Guard and the certificate, benefit of which was given to him, was fake. A show cause notice was issued to him on 20.07.2007 to which the respondent-petitioner filed a response stating therein that he had never submitted the said certificate. Without going into the controversy as to whether he had submitted the certificate or not on 28.10.2025, we had passed the following order:- Versus Counsel for Appellant(s) : Standing Counsel Counsel for Respondent(s) : Diwakar Singh, Abhishek Singh, Sudhir Kr. Singh State Of U.P. Thru Secretary Home And Ors. .....Appellant(s) Abhishek Kumar S/O Raghuraj Singh .....Respondent(s)

"1. Heard.

2. Let the Standing Counsel for the State-appellants file an affidavit clearly indicating as to whether the respondent would have qualified for selection as Jail Warder under the Other Backward Classes category quota without giving the benefit of his alleged services as Homeguard or not as it is the admitted case of the appellants that the respondent did not annex the Homeguard experience certificate while applying for such selection and appointment but according to the State-appellants it appears that subsequently the same was inserted and he was considered as a candidate under the Homeguards quota, a fact, which the respondent denies. We have also perused the alleged Homeguard certificate at page No.73.

3. List this case on 17.11.2025 amongst top ten cases of the day. "

4. Now, the affidavit filed on behalf of the appellants in November, 2025 and the documents annexed therewith amply establish that if the benefit of Home Guard certificate which was on record was not given to the respondent-petitioner then he would not be selected under the O.B.C. category as he had secured only 39.6 percent marks whereas the last candidate to be selected under the said category had secured 45.8 percent marks. In view of this, the question as to whether Home Guard certificate was submitted by the respondent-petitioner or not pales into insignificance. The fact of the matter is that somehow the benefit of Home Guard certificate was given to him and but for the said benefit he would not have been selected and appointed as Bandi Rakshak under the category i.e. O.B.C. under which he had applied. These facts have not been rebutted by the respondent-petitioner. We have perused the order dated 20.09.2007 passed after considering his reply to the show cause notice. Essentially, it is an order holding the selection and appointment of respondent-petitioner as illegal though in the last line of the order it has been stated that accordingly his services are terminated but in essence what has been found is that his selection itself was contrary to law and illegal. Whether it was fraudulent or not is immaterial in view of what has been noticed hereinabove. We may in this context refer to a decision of Hon'ble the Supreme Court reported in (2004) 2 SCC 105 'R. Vishwanatha Pillai vs. State of Kerela and Others' wherein Hon'ble the Supreme Court approved the Full Bench decision of Patna High Court SPLA No. 860 of 2010

rendered in the case of 'Ishwar Dayal Sah vs. the State of Bihar & Ors.' reported in 1987 Lab IC390. Purely in the facts of that case, we are of the opinion that selection of the respondent-petitioner itself being fundamentally illegal, his selection and appointment has veritably been cancelled by the impugned order which has been passed during the period of probation. Learned Single Judge lost sight of this fact. Purely in the facts of this case holding of a disciplinary proceedings against the respondent-petitioner was not required.

5. We, accordingly, set aside the impugned judgment. The writ petition of the respondent-petitioner is dismissed. The appeal is allowed. December 15, 2025 Shanu/- SPLA No. 860 of 2010

(Rajeev Bharti,J.) (Rajan Roy,J.) Digitally signed by :- SHANU SUMAN High Court of Judicature at Allahabad, Lucknow Bench