HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 10 Case :- WRIT - A No. - 49158 of 2015 Petitioner :- Vivek Dubey Respondent :- State Of U.P And Another Counsel for Petitioner :- Sanjay Mishra,Durgesh Kumar Dubey,Sri Radha Kant Ojha Counsel for Respondent :- C.S.C.,Ajay Kumar Hon'ble Arun Tandon,J.
Hon'ble Shashi Kant,J.
Heard Sri Radha Kant Ojha, Senior Advocate assisted by Sri Durgesh Kumar Dubey, Advocate for petitioner and Sri G.K. Singh, Senior Advocate assisted by Sri Ajay Kumar, Advocate for respondent nos. 1 and 2.
Uttar Pradesh Public Service Commission, Allahabad (hereinafter referred to as 'the Commission'), published an advertisement dated 23.03.2013, inviting applications for various posts for appointment on the posts of Combined State/Upper Subordinate Services (General Recruitment) Examination, 2013.
Petitioner before this Court is stated to have submitted his application in response to the advertisement so published by the Commission. Some of the posts published by way of said advertisement were named "Designated Officer". Dispute giving rise to the present writ petition is with respect to the posts of Designated Officer for which special qualifications were also prescribed.
It is not disputed that petitioner does satisfies special qualifications prescribed for the said post. The application form contained amongst others Coloumn no. 20, which provided for other essential qualifications. The petitioner had admittedly left Coloumn No. 20 blank in his application form. Because of Coloumn No. 20 having not been filled by the petitioner, it was decided by the Commission that he has not opted for the post of Designated Officer and therefore, in the results of Preliminary Examination, which were declared on 27.05.2014, Roll Number of the petitioner was shown only in the list prepared for the posts covered by "Executive" only and not for the posts covered by "Designated Officer". The Mains Examination, took place on 01.07.2015, the result of the Mains Examination was declared on 13th January, 2015. According to the Commission, result of main examination was again preapred on the basis of the options given by the candidates, namely "Executive" and/or "Designated Officer", separately. Name of petitioner was shown in the list prepared for the post categorised under the heading "Executive" and not against the posts covered by "Designated Officer".
Interview is stated to have taken place and final result had been declarted category wise, which has been up loaded on the website of the Commission.
Petitioner before this Court seeks a writ of mandamus, directing the Commission to consider his candidature against the posts of "Designated Officer" on the basis of over all marks received by him in the said examination within the category to which he belongs. It is also stated before us that persons who are lower in merit than petitioner have been offered the posts under the heading "Designated Officer", while petitioner has been nonsuited for the said posts, only because he had left Coloumn No. 20 of the application form, blank.
Sri R.K. Ojha, Senior Advocate on behalf of petitioner, with reference to the Division Bench judgment of this Court in the case of Ajay Pratap Singh and Others Vs. State of U.P. and Others, being Writ Petition No. 31864 of 2014, decided on 13th June, 2014, submits that the issue with regard to Coloumn No. 20, having been left blank and therefore candidature of the candidate concerned being excluded from consideration against the posts of "Designated Officers", has been examined and it has been laid down that since petitioners in that case were eligible for the post of "Designated Officer" and had obtained more marks than cut-off marks, he was entitled to appear in the Main Examination, against the posts of "Designated Officer" also.
Applying the same principle, Sri R.K. Ojha, Senior Advocate submitted that since, the petitioner had secured minimum qualifying marks required for appearing in the Mains Examination, it was not necessary for him to approach this Court earlier and it is only when final result has been declared, that he came to know that his candidature against the posts "Designated Officer" has been non suited because of Coloumn No. 20 of application form having been left blank.
Sri G.K. Singh, Senior Advocate on behalf of the Commission, on the contrary pointed out that after the judgment in the case of Ajay Pratap Singh (supra), as many as 50 writ petitions were filed before this High Court by the candidates who were not invited for participation in the Mains Examination. In all these 50 writ petitions the order of the Division Bench rendered in the case of Ajay Pratap Singh (supra) has been followed. Petitioners of these 50 writ petitions, who were nearly 80 in number, have been invited for participation in the Mains Examination, under the orders of the High Court. Their candidature for the posts of "Designated Officer" has also been considered, even though coloumn no. 20 of their applications was left blank. It is stated that all those petitioners who have been successful in the Mains Examination and Interview have been selected against the posts of "Designated Officer".
Sri G.K. Singh, Senior Advocate however submits that this practice which has been undertaken by the Commission, because of the orders of the High Court, may not be applied in the case of the petitioner herein, inasmuch as in the result of Priliminary Examination his roll number was disclosed against the post covered under the heading "Executive" only. Similarly, in the result of Mains Examination, his roll number was disclosed against the posts within the heading "Executive" only, consequently, after Interview, his candidature has been confined to the post within the heading "Executive". It is explained that Division Bench of this Court in the cae of Vinay Kumar Pal Vs. State of U.P. and Others, Writ A No. 617 of 2015, decided on 15.01.2015 has held that persons who had been selected for the posts within the heading "Executive" cannot be permitted to challenge the selections at the stage when the final results have been declared and the writ petition is liable to be dismissed on the ground of latches/inordinate delay.
Sri G.K. Singh, Senior Advocate submits that this writ petition must also meet the same fate.
Sri R.K. Ojha, Senior Advocate in his rejoinder affidavit submits that the selection procedure, held for the posts covered under the heading "Executive" and for the post covered under the heading "Designated Officer" was one and the same, right from the stage of Priliminary Examination till the stage of Interview. No separate question paper was prepared nor any separate Inverview Board was constituted vis a vis, category of post. It is also stated that candidates who appeared before the Inverview Board were allotted code numbers without their identity being disclosed to the Members of the Board and without the Members being informed as to whether candidate is to be considered only for the posts under heading "Executive" or for the posts under the heading "Designated Officer". He submits that only at the time of preparation of final results, that Commission has again reopened the controversy with regard to Coloumn No. 20 and has declared that candidates leaving the Coloumn No. 20 blank as unsuitable for the posts under the heading "Designated Officer". Persons lower in merit have been selected against the posts of "Designated Officer", only on the ground that they had disclosed required information in Coloumn No. 20.
There is also an issue between the parties as to whether, in the application form, it was required to be submitted at the time of interview by the respective candidates, the petitioner had been asked to submit his application for category of various posts. According to the petitioner he was asked to fill option against the post under the heading "Designated Officer" by the officers of the Commission.
Issue with regard to the effect of the form submitted by the petitioner and at the time of interview and the correctness of the stand that he was asked to give his options by the officers of the Commission, at the time of Interview, is a controversial fact and may be examined by the Commission at the first instance.
But this Court is required to examine as to whether this writ petition is liable to be dismissed on the ground of latches as has been held in the case of Vinay Kumar Pal (Supra).
We at the outset record that for writ petition being filed under Article 226 of the Constitution of India, no limitation is prescribed either under the Constitution of India or in the Allahabad High Court Rules.
The issue has been settled by the Apex Court repeatedly it has been explained that High Court has to examine for itself in each case as to whether the petitioner had been vigilent in pursuing his remedies or not and has approached the writ Court within reasonable time. It has to be seen as to because of time period taken in approaching the Court, the petitioner has created a situation where High Court may refuse to entertain the writ petition on the ground of latches. Legal principles applicable in the matter of entertainment of writ petitions, on the plea of delay/latches has been stated by the Apex Court in the case of Shankara Co-Op. Housing Society Ltd. Vs. M. Prabhakar and Others [2011 AIR SCW 3033].
We find it difficult to follow the Division Bench of this Court in the case of Vinay Kumar Pal (Supra), on facts. We may record that no binding precedent has been laid down in the said judgment.
In our opinion, for a writ petition to be dismissed on the ground of laches/delay, it has to be examined as to whether the particular petitioner has been sleeping over his rights or there have been inordinate delay creating a situation which cannot be rectified at such later stage or the petitioner has created a right in another person which may cause injustice, if the writ Court is to entertain the writ jurisdiction and it grant relief to the petitioner.
We in the facts of the case, find that Preliminary examination pursuant to the advertisement, had taken place in the month of May, 2014, the result of the said examination was declared on 27.05.2014, which, according to the Commission was category wise and it is at this stage itself that writ petition was filed by Ajay Pratap Singh and others (supra), with the plea that even if Coloumn No. 20 has been left blank their candidature has to be considered for the post of "Executive" as well as "Designated Officer. Which plea was upheld by the Court. We fail to understand that when a judgmnet had been delivered by this Court as early as on 13th June, 2014, permitting all such applicants who had disclosed their qualifications but had left coloumn no. 20 blank for their candidature being considered for the post of "Designated Officer" by the Commission why the said legal principal was not applied by the Commission in uniform manner. Why should Commission insist on separate writ petitions being filed by the individual candidate, when the legal position with regard to Coloumn No. 20 having been left blank and the consequences which follow had already been laid down by the Division Bench of this Court.
The Commission in the present case should had ultimately applied the law explained by this Court, more so when date of Mains Examination had not been announced when the judgment was made by the Division Bench. This practice of creating a situation for compelling the individual candidates to approach this Court again and again for practically same reliefs, must be avoided by the Commission. Once this Court declares consequence of a particularly Coloumn having been left blank, the Commission is duty bound to act uniformly for all such similarly situate candidates, even if they do not approach the Writ Court. Commission must not become an agency for generating litigation.
We therefore, have no hesitation in recording that after the Division Bench Judgment of this Court dated 13th June, 2014, the Commission had no business to treat the candidates who had left Coloumn No. 20 blank, as excluded from consideration for the post of "Designated Officer".
We had specifically asked learned counsel for the Commission as well as learned counsel for the petitioner as to whether there was any difference in the examination papers for both Preliminary Examination and Mains Examination as well as with regard to constitution of the Interview Board and the method of evaluation by the Interview Board of a particular candidate, the answer given is in negative. It has been explained to the Court that Interview Board was not aware as to whether particular candidate was to be considered only for the post of "Designated Officer" or for the post of "Executive Officer" or vice-versa.
We are also of the opinion that in the facts of the case, petitioners have approached this Court promptly after the declaration of the result seeking consideration of their case against the post of "Designated Officer". It is stated before us that final result was declared on 26th March, 2015, marks received by the candidates were disclosed only in the last week of June, 2015 and it is at this stage that petitioner came to know that he even after having received more marks then the last candidate selected for the post "Designated Officer" has been non suited because of Coloumn No. 20 having been left blank.
The finding recorded in the order of the Division Bench of this Court in the case of Vinay Kumar Pal (supra) that the petition was filed after a period of six months from the date the result of Mains Examination was declared, is incorrect inasmuch as from the record we find that result of Mains Examination was declared on 13th January, 2015 i.e. two days prior to the order of the Court in Vinay Kumar Pal (supra) case dated 15th January, 2015.
We find it difficult to agree with the judgment in in the case of Vinay Kumar Pal (supra) which has been rendered on practically identical facts. We deem it fit to refer the following questions of law to be answered by a Larger Bench of this Court :
(a) Once the Writ Court, in respect of same examination and in respect of same column no. 20 of the form having been left blank, had declared that such candidates are also to be considered for the post of 'Designated Officer', is it open to the Commission to have two sets of norms, one for the candidates who approached the High Court and the other for the candidates who did not approached the High Court? Why such judgements be not read as judgements in rem?
(b) Can a writ petition be dismissed on the ground of latches only because the result of Preliminary Examination had been known to the petitioner, when, there had been a judgment of this Court for ignoring the blank Coloumn No. 20, in the matter of consideration of candidature of the candidate against the post of "Designated Officer"?
(c) Whether the Division Bench in the case of Vinay Kumar Pal (supra) was right in the facts of the case, in recording that there has been inordinate delay in filing the writ petition with reference to the date on which the final result was declared?
Let this order be placed before Hon'ble the Chief Justice for constituting a Larger Bench for answering the aforesaid questions at the earliest.
(Shashi Kant, J.) (Arun Tandon, J.) Order Date :- 11.9.2015 A. Verma