Atul Patel And 4 Others vs State Of U.P. And 2 Others
2023 Latest Caselaw 1077 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 29
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 20 of 2023
 

 
Appellant :- Atul Patel And 4 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Hitesh Pachori,Virendra Singh Patel
 
Counsel for Respondent :- C.S.C.,Archana Singh
 

 
Hon'ble Manoj Misra,J.

Hon'ble Vikas Budhwar,J.

In Re: Leave to Appeal No. 2 of 2022

Learned counsel for the appellants submitted that this leave application has been filed by mistake though it was not required as the appellants were also writ petitioners in the writ petition wherein the order impugned has been passed by the learned Single Judge therefore, the leave application may be dismissed as not pressed.

In view of the above, the leave application is dismissed as not pressed.

In Re: Delay Condonation Application No. 1 of 2023

By this application, the appellants seek condonation of 43 days delay in filing this intra court appeal against the judgment and order of the learned Single Judge dated 20.10.2022. The application is supported by an affidavit.

Considering the explanation offered in the affidavit filed in support of the delay condonation application, we deem it appropriate to condone the delay in filing the appeal.

The delay condonation application is allowed. The delay in filing the appeal is condoned.

Office to assign a regular number to the appeal.

In Re: Appeal

Learned counsel for the appellants and Ms. Archana Singh, who appears for the respondent no.3, have fairly stated that against the judgment and order impugned in this appeal, Special Appeal No. 735 of 2022 was filed by other writ petitioners which was dismissed by order dated 28.11.2022 reproduced below:-

"In Re: Leave to Appeal No. 1 of 2022

Heard Sri Virendra Singh Patel, learned counsel for the appellant, the learned Standing Counsel who appears for Respondents 1 and 2 as well as Ms. Archana Singh who appears for Respondent no.3.

Since the appellant had himself filed Writ Petition No.9350 of 2022, which came to be decided on 20.10.2022, in the opinion of the Court, there was no occasion to file an application for leave to appeal.

The leave to appeal application stands disposed off.

In Re: Appeal

This intra-court appeal has been preferred by the appellant (writ petitioner) against the judgment and order of the learned Single Judge passed in Writ-A No. 9350 of 2022 on 20.10.2022 whereby the writ petition of the appellant was dismissed.

The case of the appellant (writ petitioner) before the learned Single Judge was that an advertisement dated 09.01.2018 was published by the Respondents for recruitment of Assistant Teachers against 68500 posts in the primary schools run by U.P. Basic Shiksha Parishad. The appellant was selected. The place opted by the appellant for posting in the order of preference were Jhansi; Jalaun; Agra and Mathura. But, he was allotted district Balrampur. The grievance of the appellant is that as he had obtained more quality point marks than the candidates who were ultimately posted in their home district, he has been discriminated. Therefore, relying on a decision of a Single Judge Bench in Writ A No.19737 of 2018 (Shikha Singh & 48 others vs. Sate of U.P. & others), the writ petitioner filed Writ Petition No.9350 of 2022, Somu Dentrey vs. State of U.P. seeking following reliefs: -

"(i) issue a writ order or direction in the nature of mandamus directing the respondents concern to allot the districts to the petitioner in accordance with their preferences and merit, based on MRC criteria according to the order dated 29-8-2019 (containing direction for the such transfer / allotment of districts) passed by this Hon'ble Court.

(ii) issue any such other and further order which this Hon'ble Court may deem fit and proper under the circumstances of the case.

(iii) award the cost of the petition to the petitioner, against the respondents."

The writ petition of the appellant was tagged with other writ petitions involving similar issues and were dismissed by the impugned judgment and order dated 20.10.2022 with the following reasoning: -

"12. The issue under consideration before this Court is 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, have joined at their respective places of posting in the year 2018 itself. The Division Bench of this Court in Special Appeal No. 274 of 2020 decided on September 14, 2021 passed a consenting order. It was further observed that the candidates already selected/posted and working in the respective districts of any category shall not be disturbed.

13. The Special Appellate Bench in Special Appeal Defective No. 1048 of 2021 (O&M) Tiwari Manish and others versus State of U.P. and others and Special Appeal No. 274 of 2020 has further laid down that the things already which have already been settled, cannot be unsettled especially 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.

14. In view of the above, this Court is not inclined to interfere in the matter. The aforesaid bunch of writ petitions lack merit and are accordingly dismissed."

Challenging the judgment and order dated 20.10.2022 passed in Writ-A No. 9350 of 2022, the present intra-court appeal has been preferred by the appellant.

The argument of the learned counsel for the appellant is that the delay in approaching the writ-Court should not be a relevant factor to negate the claim of the appellant (the writ petitioner) because if benefit has been accorded to similar set of litigants, then the respondents are under obligation to extend the same to the appellant also.

Countering the said submission, Ms. Archana Singh as well as the learned Standing Counsel, who appear for the respondents, have argued that placement and posting of the appellant had been done way back on 29.8.2019 and at that point of time, no challenge was made by the appellant (writ petitioner) before any court of law and, now the issue has been settled by a Division Bench judgment in Special Appeal Defective No. 1048 of 2021, (O & M) Tiwari Manish vs. State of U.P. and others and other connected appeals, decided on 8.3.2022; and Special Appeal No. 248 of 2022, Anuj Tiwari and others vs. State of U.P. and others, decided on 30.8.2022.

Upon consideration of the rival submissions and on perusal of the records, we notice that admittedly the appellant (the writ petitioner) was accorded placement on 29.8.2019 and at that point of time, no grievance was raised by the appellant (writ petitioner). Only after the order dated 14.09.2021 in Special Appeal No. 274 of 2020; Amit Shekhar Bhardwaj vs. State of U.P. was passed, the appellant approached the writ-court in the year 2022 challenging the placement which had been made on 29.08.2019. The operative portion of the judgment in Amit Shekhar Bhardwaj (supra) is extracted below: -

"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.

27. The directions given hereinabove are with the consent of the parties thus, it would not be treated to be precedence. If fresh litigation comes, it would not be driven by this judgment."

Perusal of the extracted portion of the order dated 14.09.2021 in Special Appeal No. 274 of 2020 reveals that the directions contained therein were based on consent of the parties with a specific rider that it shall not be treated as a precedent. Once the relief granted in the said case is confined to the parties and is not to be treated as a precedent, then the relief granted therein cannot be extended to the appellant. Therefore, when it has been demonstrated that the entire exercise of placement of Assistant Teachers had been finalised on 29.08.2019, it would be too late in the day to disturb placement of teachers in various institutions across the State as it would disturb the functioning of the institutions across the State thereby affecting dispensation of education.

We therefore see no good ground to interfere with the judgment and the order of the learned Single Judge.

The Special Appeal is dismissed."

In view of the above, this appeal is also dismissed in terms of the order dated 28.11.2022 passed in Special Appeal No. 735 of 2022.

Order Date :- 11.1.2023

Sunil Kr Tiwari