Anuj Tiwari And 230 Others vs State Of U.P. And 2 Others
2022 Latest Caselaw 11623 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 29
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 248 of 2022
 

 
Appellant :- Anuj Tiwari And 230 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Man Bahadur Singh
 
Counsel for Respondent :- C.S.C.,Archana Singh
 
Connected with
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 228 of 2022
 

 
Appellant :- Neha Khare And 92 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Man Bahadur Singh
 
Counsel for Respondent :- C.S.C.,Archana Singh
 
And 
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 277 of 2022
 

 
Appellant :- Om Prakash And 172 Others
 
Respondent :- State Of U.P. And 2 Other
 
Counsel for Appellant :- Man Bahadur Singh
 
Counsel for Respondent :- C.S.C.,Archana Singh
 

 
Hon'ble Manoj Misra,J.

Hon'ble Mohd. Azhar Husain Idrisi,J.

As these three appeals arise from a common judgment and order of the learned Single Judge dated 29.08.2019 and 13.05.2020 in Writ A No. 19737 of 2018 connected with several other petitions, these three appeals, which have been filed along with delay condonation application as well as leave to appeal applications, are being addressed by a common order.

Special Appeal Defective No. 248 of 2022 is reported to be beyond time by 1017 days whereas Special Appeal Defective No. 228 of 2022 is reported to be beyond time by 1074 days and Special Appeal Defective No. 277 of 2022 is reported to be beyond time by 1021 days.

We have heard Sri Man Bahadur Singh for the appellants and Miss. Archana Singh for the respondent no.3.

From the submissions made at the Bar it transpires that by time-barred Special Appeal Defective No. 1048 of 2021 (Tiwari Manish and others v. State of U.P. and others) and Special Appeal Defective No. 92 of 2022 (Anupam Kumar Mishra and others v. State of U.P. and others) the orders impugned were challenged but, considering the facts of the case and the inordinate delay, those appeals were dismissed by order dated 08.03.2022. The order dated 08.03.2022 passed in Special Appeal Defective No. 1048 of 2021 connected with Special Appeal Defective No. 92 of 2022 is extracted below:-

" ORDER

1. In Special Appeal Defective No. 1048 of 2021 (hereinafter referred to as the "appeal-1"), there is delay of 807 days in filing the appeal. It is a fact that the appellants in this appeal never felt aggrieved by the order passed by the learned Single Judge. Neither they preferred any appeal before this Court nor any Special Leave Petition before Hon'ble the Supreme Court. It is only after the order by Division Bench was passed on September 14, 2021, it is claimed by learned counsel for the appellants that the present appellants had filed Special Leave Petition (Civil) Diary No. 22340 of 2021 before Hon'ble the Supreme Court challenging the order dated September 14, 2021 which was passed by Division Bench of this Court. The Special Leave Petition was filed nearly two years after passing of the order by learned Single Judge. The same was filed along with an application for permission to file Special Leave Petition as the appellants were not the parties before this Court in the appeal, which was decided by Division Bench vide the order impugned before Hon'ble the Supreme Court. The same was not entertained and dismissed vide order dated October 29, 2021 relegating the appellants to avail of their appropriate remedy. The present appeal was filed about two months thereafter.

2. Considering the fact that there was delay of about two years by the present appellants to avail of their any remedy against the order passed by the learned Single Judge before they preferred Special Leave to Appeal Petition before Hon'ble the Supreme Court, we do not find that any case is made out to condone the delay, even if the period spent in pursuing the Special Leave to Appeal Petition before Hon'ble the Supreme Court is ignored. Any judgment or order passed by Court does not give a cause of action to a party to approach the Court. The cause of action arises from the order passed by learned Single Judge. In view thereof, the present appeal deserves to be dismissed on the ground of delay only.

3. In Special Appeal Defective No. 92 of 2022 (hereinafter referred to as "appeal-2"), there is delay of 874 days in filing the appeal. The appellants in this appeal neither preferred any appeal before this Court nor any Special Leave to Appeal Petition before Hon'ble the Supreme Court before the order by Division Bench was passed on September 14, 2021. It is stated that the order dated September 14, 2021 passed by the Division Bench was challenged by some similarly situated persons before Hon'ble the Supreme Court by filing the Special Leave to Appeal Petition and to avoid the multiplicity of the litigation, the appellants in this appeal were waiting for the decision by Hon'ble the Supreme Court and it is only after the same was dismissed, they have approached this Court by means of the present intra-Court appeal. We do not find the explanation to be satisfactory and in our view, this appeal also deserves to be dismissed on the ground of delay alone.

4. However, even on merits, we do not find any case is made out to interfere with judgment of learned Single Judge dated August 29, 2019, which has been challenged by filing both the present intra-court appeals. Vide aforesaid common judgment, a bunch of 265 writ petitions was decided. The writ petitioners were 2,893 in number. The present appeals have been filed by 53 and 25 candidates, respectively. The details of the appellants in appeal-1 have been furnished in para 11 to 15 in the affidavit filed therewith, which reads as under:

"11. That the appellant no. 1 Tiwari Manish also filed W.P. No. 25997 of 2018 which was connected with W.P. No. 19737 of 2018 (Shikha Singh and others Vs. State of U.P. and others) and decided by one and common judgment and order dated 29.08.2019.

12. That similarly the appellant No.2 Vinay Singh also filed W.P. No. 26157 of 2018, appellant no. 3 Kachan Prabha Shukla filed W.P. No. 26810 of 2018, appellant no. 4 Pratibha Tripathi filed W.P. No. 26636 of 2018, appellant no. 5 Prayanka Gupta filed W.P. No. 157811 of 2020, appellant no. 6 Abha Mishra filed W.P. No. 8369 of 2019, appellant no. 7 Km. Pooja filed W.P. No. 26151 of 2018, appellant no. 8 Rakhee Tyagi filed W.P. no. 26841 of 2018, appellant no. 9 Bhavna Sharma filed W.P. No. 26841 of 2018, appellant no. 10 Pooja Singhal filed W.P. No. 2178 of 2019. The aforesaid Writ Petitions were connected with W.P. No. 19737 of 2018 (Shikha Singh and others Vs. State of U.P. and others) and decided by one and common judgment and order dated 29.08.2019.

13. That similarly appellant no. 11 Jitendra Goyal also filed W.P. No. 22557 of 2018, appellant no. 12 Akriti Singh filed W.P. No. 20658 of 2018, appellant no. 13 Abhishek Singh filed W.P. No. 26138 of 2018, appellant no. 14 Rang Nath Mishra filed W.P. No. 22426 of 2018, appellant no. 15 Rishabh Awasthi filed W.P. No. 26204 of 2018, appellant no. 16 Shakti Singh Paliwal filed W.P. No. 22483 of 2018, appellant no. 17 Indresh Shukla filed W.P. No. 26138 of 2018, appellant no. 18 Rashid Ali filed W.P. No. 26127 of 2018, appellant no. 19 Shubhangi Mishra filed 24077 of 2018, appellant no.20 Nidhi Mishra filed W.P. No. 24077 of 2018. The aforesaid Writ Petitions were connected with W.P. no. 19737 of 2018 (Shikha Singh and others Vs. State of U.P. and others) and decided by one and common judgment and order dated 29.08.2019.

14. That similarly the appellant no. 21 Rajnish Singh filed W.P. No. 26610 of 2018, appellant no. 22 Atul Kumar Pandey filed W.P. No. 844 of 2019, appellant no. 23 Anushka Shukla filed W.P. no. 26760 of 2018, appellant no. 24 Km. Pratiksha filed W.P. No. 26610 of 2018, appellant no.25 Priyanjali Pathak filed W.P. No. 16876 of 2019, appellant no.26 Rachana Tripathi filed W.P. No. 26610 of 2018, appellant no. 27 Gaurav Singh filed W.P. No. 26610 of 2018, appellant no. 28 Alok Kumar filed W.P. No. 26526 of 2018, appellant no. 29 Vishesta Gupta filed W.P. No. 26608 of 2018, appellant no. 30 Yogesh Raghave filed W.P. No. 26929 of 2018. The aforesaid Writ Petitions were connected with W.P. No. 19737 of 2018 (Shiksha Singh and others vs. State of U.P. and others) and decided by one and common judgment and order dated 29.08.2019.

15. That similarly the appellant no. 31 Karuna Nidhi Goswami filed W.P. No. 26193 of 2018, appellant no. 32 Priyanka Gupta filed W.P. No. 26885 of 2018, appellant no. 333 Anshika Dubey also filed W.P. No. 26157 of 2018, appellant no. 34 Pooja Pandey filed W.P. No. 1204 of 2019, appellant no. 35 Sumit Mishra filed W.P. No. 1408 of 2019, appellant no. 36 Harshita Dwivedi filed W.P. No. 26306 of 2018, appellant no. 37 Sudiksha Guypta filed W.P. No. 26306 of 2018, appellant no. 38 Shailendra Kumar Tripathi filed W.P. No. 27438 of 2018, appellant no. 39 Pooja Shukla filed W. P. no. 27438 of 2018, appellant no. 40 Gulista Gauhar filed W.P. No. 1449 of 2018. The aforesaid Writ Petitions were connected with W.P. no. 19737 of 2018 (Shikha Singh and others Vs. State of U.P. and others) and decided by one and common judgment and order dated 29.08.2019."

5. A perusal of the facts stated in the aforesaid paragraphs show that appeal-1 is a common appeal having been filed by the appellants, who were writ petitioners in number of different writ petitions. The same is the position in respect of appeal-2 also.

6. The issue under consideration before the writ Court was with respect to allocation of the Districts to the candidates, who were selected as Assistant Teachers. The advertisement was issued way back in the year 2018 and the selection process was completed. The candidates, who were selected, had joined at their respective places of posting in the year 2018 itself. In appeal filed by writ petitioners, a Division Bench of this court on September 14, 2021 passed a consenting order, the operative part whereof reads as under:

"26. We have given a thoughtful consideration to the argument advanced from both the sides and looking to the facts that examination was conducted in the year 2018, and, placement/posting being given in the said year and candidates having joined at their respective place of posting in 2018 itself, with the consensus arrived at between the counsels of both the sides as well as consent of the Board, we are proposing to pass the following order :

I. The candidates already selected/posted and working in the respective district of any category, shall not be disturbed.

II. The judgment in favour of the Meritorious Reserved Caste Candidates is not interfered. The petitioners-appellants belonging to Reserved Caste category would submit an application before the Board for change of posting pursuant to the judgment of the learned Single Judge within a period of two months of this judgment. The Board would thereupon process the case and post them as per their choice within two months. This direction would not be applicable in general but limited to the petitioners-appellants whose writ petitions were allowed by the learned Single Judge.

III. The appellants and Intervenors belonging to Open General category shall give option of three districts for their posting which would be considered by the Board within two months. They would be posted in any of the district of their choice subject to availability of the vacancy in the district concerned."

7. A perusal of the aforesaid order passed by Division Bench of this Court shows that the relief granted therein was on the basis of the consent between the parties as there were appeals filed by U.P. Basic Shiksha Board, which were disposed of by a consenting order. A direction was also issued that the same shall not be treated as a precedent for the reason that the Court had not given any judgment on the merits of the controversy. The idea behind it was that the issue, which already stood settled, should not be unsettled as the allocation of the districts to the candidates may entail some changes in the process, which had already been concluded, or may affect some of the candidates. The things which have already been settled, cannot be unsettled specially where there are large number of candidates still available, who have not challenged the order passed by the learned Single Judge. Any interference in the present appeals will open a floodgate and will not let the State to finalize the issue of allocation of districts to the selected candidates.

8. In view of the discussion made hereinabove, both the appeals are dismissed on account of delay as well as on merits. "

It is also not in dispute between learned counsel for the parties that following the order dated 08.03.2022 passed in Special Appeal Defective No. 1048 of 2021, Special Appeal Defective No. 179 of 2022 connected with Special Appeal Defective No. 221 of 2022 and Special Appeal Defective No. 296 of 2022 were dismissed vide order dated 16.08.2022 for the reasons given in the order dated 08.03.2022 passed in Special Appeal Defective No. 1048 of 2021. The order dated 16.08.2022 passed in Special Appeal Defective No. 179 of 2022 (supra) is being extracted below:-

"Heard Sri R.K. Ojha, learned counsel for the appellants as well as Mrs. Archana Singh, learned counsel for the respondents at length.

From the submissions made it transpires that a similar controversy as is being raised in the instant appeals, was subject matter of Special Appeal Defective No. 1048 of 2021 (Tiwari Manish and others Vs. State of U.P. and others) & Special Appeal Defective No. 92 of 2022 (Anupam Kumar Mishra and others Vs. State of U.P. and others) which has been dismissed by order dated 8.03.2022 on account of delay as well as on merits.

Counsel for the appellants in these special appeals could not point out any good reason why the judgement of dismissal referred to above should not be followed in these special appeals also.

Accordingly, and for the reason given in the order dated 8.3.2022 passed in Special Appeal Defective No. 1048 of 2021 & Special Appeal Defective No. 92 of 2022 even these appeals are hereby dismissed. "

As it is not in dispute between the counsels appearing for the parties that these three appeals are covered by the decision rendered in Special Appeal Defective No. 1048 of 2021, we deem it appropriate to dismiss these three special appeals for the same reasons as given in the order dated 08.03.2022 passed in Special Appeal Defective No. 1048 of 2021 and other connected appeals.

The appeals are dismissed accordingly.

Order Date :- 30.8.2022

Sunil Kr Tiwari