Amit Bharti And 13 Others vs State Of U.P. Thru Secy Basic ...
2022 Latest Caselaw 11886 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 2
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 155 of 2022
 
Appellant :- Amit Bharti And 13 Others
 
Respondent :- State Of U.P. Thru Secy Basic Education Civil Sectt Govt Of U.P. Lko And 22 Others
 
Counsel for Appellant :- Amit Kr. Singh Bhadauriya,L.B.Singh Bhadauria,Onkar Singh
 
Counsel for Respondent :- C.S.C.,Ran Vijay Singh
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Shree Prakash Singh,J.

Order on delay condonation application.

1. Heard learned counsel for the applicants-petitioners, learned State Counsel and Sri Ran Vijay Singh, learned counsel representing the U.P. Basic Education Board, Allahabad.

2. Having regard to the contents of the application seeking condonation of delay, we are satisfied that delay has satisfactorily been explained.

3. Accordingly, the application is allowed and the delay in filing the special appeal is hereby condoned.

Order on special appeal

1. By means of this Intra-Court appeal filed under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952, a challenge has been made to the judgment and order dated 20th December, 2021 passed by learned Single Judge whereby writ petition bearing Service Single No. 23153 of 2021 along with certain connected writ petitions has been dismissed.

2. Issue raised before learned Single Judge related to result of the selection and appointment against the post of Assistant Teachers in the primary schools of the State of Uttar Pradesh that are run and managed by U.P. Basic Education Board which is a statutory body created under Basic Shiksha Parishad Adhiniyam.

3. The petitioners-appellants and several other similarly placed candidates who had appeared in the Assistant Teachers Recruitment Examination, 2019 had challenged the result of the selection on several counts, however, their main emphasis related to the key answer to question No.60 in the question paper. The writ petitions filed by the petitioners-appellants and several other like candidates were decided by learned Single Judge by means of judgment and order under appeal, dated 20.12.2021. Several other individual candidates had earlier filed writ petitions challenging the same selection which were however dismissed by the learned Single Judge by means of the judgement dated 7th May, 2021 which became subject matter of challenge before a Division Bench of this Court in a bunch of Special Appeals, leading Special Appeal being Special Appeal Defective No. 343 of 2021 (Abhishek Srivasatava and others vs. State of U.P. and others. The said bunch of special appeals were disposed of by a coordinate Bench of this Court by means of judgement and order dated 25th August, 2021 and contention raised by the appellants therein in respect of key answer to question No.60 was accepted. The Division Bench while accepting the said contention in its judgment and order dated 25th August, 2021 observed that answer to question No.60 in question paper was not correctly selected, and accordingly, the State respondents were directed to take decision appropriately to award one mark to the candidates who were aggrieved by the incorrect selection of the answer key to question No.60.

4. The Division Bench in the judgment and order dated 25th August, 2021 also observed that selections have already been finalised followed by appointments, however, merely for that reason, the candidates having a case could not be deprived of the benefit to which they were entitled. The Division Bench further observed that having regard to the fact that selection had already been completed which were also followed by appointments, directions which were being issued by means of judgement and order dated 25th August, 2021 would apply only to those candidates who had raised the issue by maintaining a writ petition by then and not to any other candidate. The relevant extract of the observations made by the Division Bench of this Court in judgement and order dated 25th August, 2021 is extracted hereinbelow;

"It is stated that selections have already been finalized followed by appointments but merely for that reason, the candidates having a case in their favour cannot be deprived to get benefit. Keeping in mind that selections have already been completed followed by appointments, direction in these appeals would apply only to those candidates who have raised the issue by maintaining a writ by now and not to any other candidate. The benefit to the candidates therein also would be if they are short of one mark because the value of each question is of one mark."

5. The aforesaid judgement and order dated 25th August, 2021 rendered by Division Bench of this Court in the case of Abhishek Srivastava (supra) became subject matter of challenge in SLPs filed by several individuals before the Hon'ble Supreme Court, most of which were dismissed by means of order dated 04.01.2022 however in respect of several other individuals, the SLPs were permitted to be withdrawn with liberty to move the High Court. Such petitions where Hon'ble Supreme Court permitted dismissal of the SLPs as withdrawn and granted liberty to move the High Courts are (1) Diary No.30173/2021, (2) Diary No.28821/2021 and (3) Diary No.27483/21.

6. We have been informed that individual candidates who approached the Supreme Court against the judgement of the Division Bench of this Court in the case of Abhishek Srivastava (supra), dated 25th August, 2021 and who were permitted to withdraw the SLPs and were granted liberty to approach the High Court were those who were aggrieved by incorrect selection of answer in the answer key to question No.60, however, they had not instituted any proceeding before this Court challenging the selection prior to 25th August, 2021.

7. The Division Bench in its judgment and order dated 25th August, 2021 in the case of Abhishek Srivastava (supra) has clearly observed that benefit of the said judgement would be available only to those candidates, who had challenged the selection by maintaining a writ petition before 25th August, 2021. In other words, benefit of the said judgement dated 25th August, 2021 was confined by the Division Bench only to those candidates, who had challenged the selection before the date of judgment i.e. 25th August, 2021. The Division Bench has also assigned the reasons for making such observation and the reason is that the selection had already been completed which were also followed by appointments by the date of judgement i.e. by 25th August, 2021.

8. The appellants-petitioners, admittedly had not challenged the selection in question prior to 25th August, 2021. They, after 25th August, 2021, however, instituted Writ Petition Nos. 23153 (SS) of 2021, 22143 (SS) of 2021, 22519 (SS) of 2021, 22820 (SS) of 2021, 22909 (SS) of 2021, 23481 (SS) of 2021, 23563(SS) of 2021 and 23660 (SS) of 2021 challenging the selection and praying therein to quash the final answer key and also to quash the result of Assistant Teacher Recruitment Examination, 2019

9. These writ petitions filed by the appellants-petitioners have been dismissed by the learned Single Judge by means of judgement and order dated 20.12.2021 by observing therein that acquiescence is one of the factors which denies right to relief which may otherwise be available to a party. Learned Single Judge has further observed that the Division Bench in the case of Abhishek Srivastava (supra) had confined the relief only to those individuals who were before the Court by that day i.e. by the date of judgment, in order to obviate a widespread impact on the recruitment process. Learned Single Judge has further observed that there does not appear any reason for the Court to disturb the recruitment process relating to the Recruitment Examination, 2019 more than what is imperative in consequence of the judgement of Division Bench in the case of Abhishek Srivastava (supra). The claim of the appellants-petitioners, thus, has been rejected by the learned Single Judge primarily on the ground that these appellants-petitioners did not institute any writ petition challenging the result of the Recruitment Examination, 2019.

10. Learned counsel for the appellants-petitioners has submitted that though the writ petitions instituted by the appellants-petitioners have been dismissed by means of judgment and order under appeal by learned Single Judge, however, in respect of similarly circumstanced candidates, Writ A No. 1011 of 2021 has been entertained by Single Judge of this Court, and accordingly, it is not only that the appellants-petitioners have been put to a disadvantaged situation but also that their right though has been recognized, is being defeated.

11. On the other hand, learned State Counsel as also Sri Ran Vijay Singh, learned counsel representing the Basic Education Board have submitted that admittedly the appellants-petitioners had not challenged the selection and the result of the examination prior to 25th August, 2021. They have also argued that learned Single Judge has rightly observed that the Division Bench in the case of Abhishek Srivastava (supra) had confined the relief only to those candidates who were before the Court by the date of judgement delivered in the said case, for the reason that recruitment process cannot be permitted to be continued for all times to come.

12. In view of the aforesaid, the submission is that there is no reason for this Court to disturb the recruitment process which has already been concluded. On this count, it has been prayed by learned State Counsel as also by Sri Ran Vijay Singh this special appeal needs to be dismissed at threshold.

13. We have given our serious consideration to the rival contentions raised by learned counsel representing the respective parties and have also gone through the record available before us on this special appeal. It is not in dispute that the appellants-petitioners had not challenged the result of examination/selection prior to 25th August, 2021 when the judgment was rendered by a Division Bench of this Court in the case of Abhishek Srivastava (supra). We also cannot have a view different from the view taken by learned Single judge that any process of recruitment /selection cannot be permitted to be continued unabatedly for all times to come. The only issue which now remains to be considered by us is that in the case of similarly circumstanced candidates as the appellants-petitioners, learned Single Judge has entertained Writ A No. 1011 of 2022 by means of an order dated 24.02.2022, whereas the writ petitions filed by the appellants-petitioners have been dismissed and thus as to whether the order under appeal before us needs to be upset.

14. In this regard, if we examine the order dated 24.02.2022 passed by learned Single Judge in Writ A No.1011 of 2022 what we find is that the learned Single Judge has observed therein that cause of action to the petitioners of the said writ petition had accrued after 25th August, 2021, and accordingly, the said writ petition has been entertained. In Writ A No.1011 of 2022, the learned Single Judge while entertaining the writ petition has noted the argument raised on behalf of the petitioners of the said writ petition that conditions mentioned in the judgement dated 25th August, 2021 will not come in the way of the petitioners of the said writ petition as the said judgement dated 25th August, 2021 cannot be read, understood and interpreted to deprive such persons of their rights, who acquire such rights subsequent to the judgment on the basis of a select list having been issued by the State respondents themselves.

15. When we inquired from the learned counsel representing the Basic Education Board as to whether after the judgment and order dated 25th August, 2021 any further select list has been issued based on the same selection, we have been informed that one such select list was issued on 05.01.2022. Accordingly, it appears that having regard to the issuance of subsequent select list on 05.01.2022, learned Single Judge has entertained the Writ A No. 1011 of 2022. However, the same rationale for entertaining the writ petitions filed by the appellants-petitioners cannot be permitted to be pressed into service for the reason that by the time, the judgement in their case was rendered i.e. 20th December, 2021, no fresh select list was issued, meaning thereby, it cannot be said that any cause of action had arisen to the appellants-petitioners after 25th August, 2021 to challenge the selection in question.

16. For the reasons aforesaid, we do find any good ground to interfere in the judgement and order passed by the learned Single Judge, which is under appeal before us.

17. The special appeal, thus, clearly lacks merit, which is hereby dismissed.

Order Date :- 31.8.2022

A.Kr*