State of Uttar Pradesh & Ors. v. Bhawana Mishra

1. This order will dispose of three appeals involving common questions of law and facts.

2. The State is before this Court impugning the judgment dated 17.01.2025 passed by the Division Bench of the High Court of Judicature at Allahabad, Lucknow Bench, in Special Appeals filed by the State. The same were filed against 3 different orders passed by the Single Bench of the High Court in Writ Petitions filed by the respondents.

3. For the purpose of consideration of the issues involved, we are noticing facts from the matter arising out of S.L.P.(C) No.19707 of 2025.

4. Learned counsel for the State submitted that vide Government Order dated 12.11.1986, the procedure for selection of candidates for the Ayurvedic Nursing Training Course in the State was circulated, providing for a written examination followed by an interview. The tone and tenor of the order established that it was meant for selection of candidates for the purpose of training, and not for appointment. This was followed by a Government Order dated 22.04.2010 dispensing with the need for fresh permission every year. An advertisement was issued on 23.09.2013 inviting applications for admission to the course for 2013-14 (20 seats in the Government Ayurvedic College and Hospital, Lucknow). Clause 9 provided that after completion of training, in case the government selects a candidate for mandatory service, the candidate shall serve the State for at least 5 years from the date of appointment, on a bond, failing which the amount paid during training was recoverable with interest at 12% per annum.

5. A notification dated 21.10.2011 specified that the Ayurvedic Nursing Training Course shall now be conducted by institutions in both the government and non-government sectors; after due process, 15 institutions were granted permission on 29.03.2012 to impart the training, in exercise of powers under the United Provinces (Indian Medicines) Act, 1939.

6. After this permission, even private institutions started admitting candidates, so the number of pass-outs became far more than the vacancies and many times more than those earlier admitted in the government institution.

7. By communication dated 23.12.2013 the respondent was called for the written examination, and was later notified of her selection to complete formalities for admission in the 2013-14 session.

8. A notification dated 15.12.2014 directed that selection for posts in the specified pay bands shall come within the purview of the Uttar Pradesh Subordinate Services Selection Commission (UPSSSC); for present and future vacancies, this exercise was to be undertaken exclusively by the UPSSSC. At the relevant time there were no service rules notified for the post in question.

9. The argument for the appellant was that when the respondents passed out there was a change in the process of selection: by then many private colleges had been permitted to run the course, so the availability of candidates increased, and a due selection process was required to select the best candidates, unlike earlier when there were only 20 seats.

10. After completing her training in 2017 the respondent sought appointment and filed a writ petition. It was disposed of on 19.07.2019 permitting her to make a representation, which was rejected on 25.09.2019 on two grounds: there were no notified service rules for Ayurvedic Nurses, and, per the notification dated 15.12.2014, the revised pay scale brought direct recruitment within the purview of the UPSSSC, so a requisition could be forwarded only after the relevant service rules were notified.

11. No appointments were made to the post from 15.12.2014 except some in 2015 — which covered candidates admitted up to 2010-11 — as evident from the letter dated 28.05.2015 referring to an order of the High Court.

12. The rejection order dated 25.09.2019 was challenged before the High Court. The State's stand was that mere admission gave no right to appointment, there was a change in policy, private colleges had been permitted, candidates were more in number, due process was required, and the post was now to be filled by the UPSSSC.

13. The writ petition was allowed by the High Court, which relied on the letter dated 28.05.2015 to find that the relevant policy had been followed for previous batches and some appointments had been made even after 15.12.2014.

14. The State's intra-court appeal was dismissed. The High Court held that the respondent's case fell within the principle of legitimate expectation, as the erstwhile policy under the Government Order dated 12.11.1986 had been followed for years and candidates admitted to the course were being appointed immediately after training.

15. The appellant argued that the 1986 order only provided a selection procedure for training; the bond condition applied only on selection for the post, not on admission; earlier all pass-outs were appointed because there were only 20 seats, but after permission to 15 private colleges the number of candidates increased manifold, requiring a proper selection process; legitimate expectation did not apply because the selection process changed and was now to be undertaken by the UPSSSC; and the 2015 appointments were due to a court order.

16. For the respondent it was submitted that from 1972 till 2015 whoever got admission was appointed; the bond was furnished at admission; the respondent passed out from a government institution (not a private college, whose advertisements clearly stated admission would not bind the Board to offer government service); the disclaimer was missing in the present advertisement; the system had been followed for decades giving rise to legitimate expectation; and the 2015 appointments after the 15.12.2014 notification showed the State was continuing the old process. Reliance was placed on N. Suresh Nathan v. Union of India.

17. Heard learned counsel for the parties and perused the relevant record.

18. From 1986 onwards, until private institutions were permitted, the course was conducted only by the government institution with an intake of 20 students, and the available candidates were given appointments. With the change in policy vide notification dated 21.10.2011, private institutions were permitted, so the number of pass-outs increased; the first private-college batch passed out in 2016. Though the respondent passed out from a government institution, when she passed out in 2017 there was a change in policy and selection to the post was to be made by the UPSSSC.

19. The issue arises as to whether mere admission in a course confers a right to appointment on the post of Ayurvedic Staff Nurse. A perusal of the advertisement shows that no such promise had been made. Rather, Clause 9 clearly stated that a candidate who is finally selected for the mandatory service-training by the State Government shall execute a bond in favour of the government, stipulating that only in case the candidate is appointed after training, he/she shall compulsorily serve the government for at least 5 years. It is not that the bond was applicable for all the candidates. It was only meant for the candidate selected for the government service.

20. The respondents in the present appeals passed out from government institutions between 2015-19. When permission was initially granted in 2012, only 15 private colleges had started the course; however, by 2019-20 nearly 311 institutions were conducting the course, so the number of pass-outs far outnumbered the available vacancies. As a result it was impossible to recruit all the pass-outs; and appointing candidates from government institutions while not offering the same to those from private institutions would have led to discrimination.

21. It may be far-fetched to apply the principle of legitimate expectation to the case in hand as there was a change in policy and scheme of government. The existing facts and circumstances underwent a substantial shift from 2012, when private institutions were granted permission, and the candidates pursuing the course had grown exponentially and could not all be recruited due to limited vacancies. The respondent-candidates failed to identify any clause in the admission advertisements guaranteeing a right to appointment. While advertisements for private colleges explicitly state that admission does not grant a right to appointment, the absence of this specific disclaimer in government college advertisements does not mean a right to appointment is automatically implied.

22. It is the definite case of the State that after the notification dated 15.12.2014, except for a few appointments in 2015 (on account of a court order, and of students admitted up to the 2010-11 session, prior to the notification and to the grant of permission to private institutions), no appointments were made under the old system. Thereafter selections were made only by the UPSSSC, as service rules for the post had been notified vide the Uttar Pradesh Ayush Department (Ayurved) Nursing Service Rules, 2021, w.e.f. 18.11.2021.

23. The judgment in N. Suresh Nathan dealt with an issue where a long-standing practice of construction of service rules was sought to be upset — whether a Diploma-holder Junior Engineer who obtains a Degree while in service can count earlier service towards the three years required for promotion as Assistant Engineer.

24. It was finally opined there that the recruitment rules must be interpreted to reckon the three years of service in the grade of degree-holder only from the date of obtaining the degree, since the department had consistently followed that practice; as the interpretation was legally tenable and supported by consistent past practice, it would be inappropriate to unsettle it.

25. The doctrine of legitimate expectation under Indian law was recently considered by a Constitution Bench of this Court in Sivanandan C T v. High Court of Kerala, where it was observed: "the doctrine of substantive legitimate expectation can be successfully invoked by individuals to claim substantive benefits or entitlements based on an existing promise or practice of a public authority. However, the doctrine of legitimate expectation cannot serve as an independent basis for judicial review… a legitimate expectation is not a legal right… an individual who claims a benefit or entitlement based on the doctrine of legitimate expectation has to establish: (i) the legitimacy of the expectation; and (ii) that the denial of the legitimate expectation led to the violation of Article 14."

26. Two tests have been laid down, one being the legitimacy of the expectation and second being denial of legitimate expectation that led to violation of Article 14. When the facts are examined in the light of the Constitution Bench, the past practice was merely on the basis of the situation at the relevant time when there were only 20 seats and only one government institution authorized to conduct the course; since there were more vacancies, most candidates may have been adjusted. Subsequently there was a change in policy as private institutions were permitted, and no appointments were made under the earlier system after 15.12.2014 except a few (admitted till 2010-11, due to a court order).

27. Statutory rules governing the post had not been framed earlier and came to be framed in 2021. There was a change in the process of selection (earlier by UPPSC, now by UPSSSC), and after private institutions were permitted, the availability of candidates was much more, so the normal rule of a selection process applied to select the best candidate. There is no violation of Article 14 as, in the facts of this case, it cannot be opined that there was any discrimination against the respondents or that the action of the State was arbitrary. The essence of discrimination is the unequal treatment of equals; however, the State has clearly established that no appointments were made under the old system for any candidate admitted after the 2010-11 session. Since no batchmate of the respondent, nor any candidate passing out after the first private-college batch in 2016, was given a direct appointment, the plea of discrimination is factually and legally unsustainable.

28. For the reasons mentioned above, in our view, the direction issued by the High Court mandating the State to consider the candidature of respondents for appointment as Ayurvedic Staff Nurse in a Medical College, Hospital or Dispensary under the State Government, cannot be legally sustained and is set aside. The appeals are, accordingly, allowed, while setting aside the impugned judgment of the High Court.

29. Pending application(s), if any, shall stand disposed of.