Ram Kishun Ram And 19 Others vs Union Of India And Another
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Allahabad High Court

Ram Kishun Ram And 19 Others vs Union Of India And Another on 16 December, 2023

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:238599
 
Court No. - 35
 

 
Case :- WRIT - A No. - 8620 of 2023 (Leading Petition)
 

 
Petitioner :- Ram Kishun Ram And 19 Others
 
Respondent :- Union Of India And Another
 
Counsel for Petitioner :- Prabhakar Awasthi,Saurabh Tripathi
 
Counsel for Respondent :- A.S.G.I.,Hem Pratap Singh
 
:With: 
 
Case :- WRIT - A No. - 12312 of 2023 (Connected Petition)
 

 
Petitioner :- Swatantra Kumar Singh
 
Respondent :- Union Of India And Another
 
Counsel for Petitioner :- Anand Kumar Srivastava
 
Counsel for Respondent :- A.S.G.I.,Hem Pratap Singh,Kiran Bala
 

 
Hon'ble Vikas Budhwar,J.
 

1 Heard Sri Prabhakar Awasthi, learned counsel for the petitioners, who are 20 in number in the leading writ petition, Sri A.K. Srivastava, learned counsel for the writ petitioner in the connected writ petition and Sri Hem Pratap Sigh, learned counsel for the second respondent. The notice on behalf of the first respondent has been accepted in the office of the Addl. Solicitor General of India, High Court, Allahabad. Though the matter has been taken up in the revised list, but nobody has put in appearance on behalf of the first respondent.

2. Since common questions of law are involved in both the writ petitions, affidavits have been exchanged between the parties and the rival parties do not propose to file any further affidavit, thus both the writ petitions are being decided by a composite order at the fresh stage.

3. The case of the writ petitioner in the leading writ petition is that the petitioner no.1 was appointed as a Class-IV employee on 25.04.1995, petitioner no.2 on 26.05.1995, petitioner no.3 on 15.07.1997, petitioner nos. 4 and 5 on 13.12.1996, petitioner no. 6 on 16.01.1997, petitioner no.7 on 15.01.1991, petitioner nos. 8,9 and 10 on 16.11.1990, 23.10.1980 and 08.04.1995 respectively, petitioner nos. 11, 12, 13, 14 & 15 on 13.07.1995, 18.02.1997, 25.04.1995, 16.11.1996 and 16.10.1990 respectively, and petitioner nos. 16, 17, 18, 19 & 20 were appointed as Class-IV employees on 11.03.1996, 04.11.1988, 24.07.1987, 27.04.1995 & 22.04.1989, respectively.

4. As per the writ petitioners, a notification was issued on 17.12.2005 by the respondents for the promotion on the post of Junior Clerk against the 25 % quota earmarked in the pay-scale of Rs.3050-4590, wherein eligibility besides other was 5 years regular service in the Class-IV posts. It has also come on record that aggrieved against the promotion of Respondent nos. 3 to 16 in Writ-A No. 37741 of 2007, by virtue of the order dated 05.06.2007 and the order dated 05.06.2007 negating the claim of the writ petitioners, who are 34 in number in Writ-A No.37741 of 2007, Sri Krishna Rai and others Vs. Banaras Hindu University and others, writ petition was preferred before this Court, which came to be allowed on 26.08.2011 wherein in paragraphs-56 and 57, it was held as under: -

"56. In the result, the writ petition is allowed. Impugned orders dated 5.6.2007 and 2.7.2007 and appointments of respondents 3 to 16 on Class IV posts are hereby quashed.

57. The University is directed to hold fresh selection for promotion to the post of Class III against the vacancies for which selection was held by notification dated 17.12.2005 and complete the same expeditiously and in any case, within three months from the date of production of certified copy of this order strictly in accordance with Rules and in the light of observations made above."

5. Questioning the order of the learned Single Judge, the Banaras Hindu University, second respondent, preferred Special Appeal No. 24 of 2012, Banaras Hindu University and another Vs. Sri Krishna Rai and others, which came to be allowed on 29.07.2016 setting aside the order of the learned Single Judge dated 26.08.2011 which was subject matter of challenge by Sri Krishna Rai (deceased) through its legal representatives and others in Civil Appeal No.4578-4580 of 2022, which came to be decided by the Hon'ble Apex Court, wherein the following orders have been passed on 16.06.2022: -

"32. For all the reasons recorded above, the appeals deserve to be allowed. They are, accordingly, allowed.

33. The impugned judgment of the Division Bench dated 29.07.2016 is set aside and the judgment of the learned Single Judge dated 26.08.2011 is restored.

34. We have been informed that some of the appellants have retired and a couple of them have also died, post retirement. Rest of them are still working. Since the examinations have already been held in the year 200607, all the appellants who are found to be eligible for promotion as per the existing rules and as directed by the learned Single Judge, would be extended all consequential benefits. Further, where the appellants have died, the benefit would be extended to their legal heirs entitled under law for the same."

6. It has also come on record that the writ petitioners in the leading writ petition were not party to the said litigation and post passing of the order of the Hon'ble Apex Court has referred to above, they rest their claim in the year 2022/23 for being accorded promotion as a Junior Clerk under 25% quota. Their claims have been rejected by virtue of the orders dated 02.02.2023 /07.02.2023 by the respondent no.2, University.

7. Questioning the said order, the writ petitioners, who are 20 in number, preferred the leading writ petitions, in which on 17.05.2023, this Court sought response from the respondents.

8. As regards, the connected petition is concerned, it has been preferred by Sri Swatantra Kumar Singh, wherein the facts are the same and his claim has been rejected on 01.05.2023 by the respondent-University on the premise that they were not party to the litigations as referred to above.

9. Both the writ petitions have been connected and are before this Court.

10. Sri Prabhakar Awasthi and Sri A.K. Srivastava, who appear for the writ petitioners in their respective writ petitions have sought to argue that once the criteria, which was adopted pursuant to the issuance of the notification dated 17.12.2005 was found to be faulty and erroneous and the entire selections were set aside on 28.06.2011 by the learned Single Judge, though upturned by the Special Appellate Bench and restored by the Hon'ble Apex Court, then the University was under legal obligation to have conducted fresh selections in that regard. It has been submitted that now what has been done is this that the persons who are before the Court of Law that the benefits have been confined to them as whereas the claim of the writ petitioners, who are sailing in the same boat, has been sidetracked which is per se illegal.

11. Sri Prabhakar Awasthi has also invited the attention of the Court towards paragraph-6 of the supplementary affidavit dated 19.11.2023 filed by the writ petitioners in the leading writ petition, so as to contend that the total number of sanctioned post of Junior Clerks are 266, 25% whereof would be 67, and out of 67 only 35 have been given promotion, break whereof was 14 + 21 and 33 posts fell vacant, against which the writ petitioners can be given accommodation.

12. The submission of the learned counsel for the writ petitioners is that though they have challenged the orders rejecting their claims, but they do not want to disturb the benefits, which have been accorded to the parties, who were before the Court of Law, but their case be also considered against the vacancy, it is there.

13. Sri Hem Pratap Singh, learned counsel for the respondent University while countering the submission of the learned counsel for the writ petitioner submits that the writ petitioners are fence setters. They have taken a calculated chance, as in case they were really aggrieved and they were vigilant towards their right, they could have filed their writ petition challenging the orders dated 05.06.2007 and 02.07.2007, whereby promotion was accorded to the respondent nos. 3 to 16 in the said writ petitions as Junior Clerks, and the claim of the writ petitioners, who were 34 in number was rejected. He submits that now after passing of the order by the Hon'ble Apex Court on 16.06.2022, the writ petitioners have come before this Court. According to him, the writ petition is enormously and inordinately barred by delay and laches and the writ petitioners have foregone their right, if any.

14. Sri Hem Pratap Singh, has also invited the attention of the Court towards the paragraphs-32 to 34 of the judgment of the Hon'ble Apex Court, so as to contend that though in paragraph-33 of the judgment, the order of the Special Appellate Bench was set aside and the order of the learned Single Judge was restored. However, the Hon'ble Apex Court had only confined the relief with respect to appellant, who was before the Apex Court and that is why it had come to the conclusion that since the examinations have already been held in the year 2006-07 and all the appellants "who are found to be eligible for promotion as per the existing rules and as directed by the learned Single Judge, would be extended to all consequential benefits and further where the appellants have died, the benefits have to be extended to the legal heirs entitled under the law for the same". He thus submits that the employing the said terminology / words itself signifies that the order of the Hon'ble Apex Court was judgment in personam and not a judgment in rem.

15. Sri Hem Pratap Singh has also invited the attention of the Court towards the Annexure-1 at Page-16, relevant extract at page-30 of the counter affidavit filed on 19.09.2023 sworn by the Law Officer, BHU, Varanasi so as to contend that out of 34 appellants, only 24 had secured 20 marks (i.e. 33% to 60 marks) and in the said written test and one of the 24 appellants has already been offered appointment in the year 2019, thus treating the judgment in rem, the benefits have been accorded.

16. Sri Hem Pratap Singh has also cited the judgment of State of U.P. Vs. Arvind Kumar Srivastava reported in (2015) 1 SCC 347 so as to contend that though litigants, who are not alert and vigilant towards their right and who were sitting on the bench cannot claim benefits.

17. I have heard learned counsel for the parties and perused the records.

18. The facts are not in dispute. It is also not in dispute that the notification was issued on 17.12.2005 while filling up the vacancies in the clerical cadre earmarked for 25% for the promotion from Class-IV posts. It is also not in dispute that there two orders passed by the respondents, one dated 05.06.2007 according benefits to the certain junior clerks and the other order dated 02.07.2007 rejecting the claim of the writ petitioners, who had preferred Writ-A No.37741 of 2007. The said writ petition stood allowed on 26.08.2011 directing to hold selection and promotion of Class-III against which the selections were held by notification dated 17.12.2005, against which Special Appeals were allowed. The matter went up to the Hon'ble Apex Court, wherein in paragraph-34, while restoring the judgment of the learned Single Judge and setting aside the judgement of the Special Appellate Bench, observations were made as noted above for grant of benefits to the appellants.

19. Here in the present case, the Court finds that in the year 2022-23 post-passing of the order of the Hon'ble Apex Court on 16.06.2022, the writ petitioners have raised their claim for the first time. In view of the judgment of the Hon'ble Apex Court dated 16.06.2022 passed in Sri Krishna Rai (supra) as well as the judgment in the case of Arun Kumar Srivastava (supra), the writ petitioners cannot be granted relief, particularly when they were not vigilant and alert towards their right at the point of time, when the cause of action stood arisen. Thus the orders impugned in the present writ petition confining the relief of the appellants, who had filed the writ petitions and approached the Hon'ble Apex Court cannot be interfered with.

20. At this stage, Sri Hem Pratap Singh submits that in case there are any vacancies available and the writ petitioners come within the zone of consideration, their claim shall be considered in accordance with law.

21. Bearing in mind the stand taken by Sri Hem Pratap Singh, who appears for the respondents, it goes without saying that in case, the vacancies are available and a recruitment exercise is undertaken and the writ petitioners are found to be within the zone of consideration, then their claim would be considered on their own individual merits.

22. With the aforesaid observations both the writ petitions stands consigned to record.

Order Date :- 16.12.2023

N.S.Rathour