Mohd. Arif And 2 Others vs State Of U.P. And 2 Others
2023 Latest Caselaw 2023 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 34
 

 
Case :- WRIT - A No. - 22176 of 2022
 

 
Petitioner :- Mohd. Arif And 2 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Jata Shankar
 
Counsel for Respondent :- C.S.C.,Archana Singh
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Petitioners before this Court seek benefit of judgment passed by Division Bench of this Court in Special Appeal Defective No. 343 of 2021 (Abhishek Srivastava and others vs. State of U.P. and others), decided on 25.08.2021 (affirmed upto Supreme Court), however, said judgment put a caveat in following words:

"The exercise aforesaid would not effect in any manner the selection of appointments already made. The benefit would be given to the appellants and the writ petitioners, if they are short of one mark and not otherwise. If any of the litigant till date are short by two marks in the merit, they would not be entitled to any benefit of this judgment."

2. Learned counsel for petitioners submit that petitioners have filed separate representations through speed post, therefore, they are also entitled for benefit of Abhishek Srivastava (supra).

3. Learned Standing Counsel appearing for State-Respondents, submits that benefit of Abhishek Srivastava (supra) was available to appellants and writ petitioners therein only and admittedly petitioners were neither appellant nor petitioners therein. He placed reliance on a Coordinate Bench judgment of this Court in Writ-A No. 20701 of 2022 (Lalit Kumar vs. State of U.P. and others), decided on 11.01.2023, that benefit of judgment in Abhishek Srivastava (supra) is extended only to appellants and not others.

4. In the present case petitioners were sitting at fence waiting for outcome of litigation filed by other petitioners/appellants and now they want to take advantage of judgment passed in Abhishek Srivastava (supra) despite there is specific observation that benefit would be granted to only appellants and writ petitioners. Only because petitioners filed a representation earlier and opted not to approach this Court, would not entitle them for benefit of Abhishek Srivastava (supra). Petitioners have not moved any clarification application or challenged aforesaid portion of Abhishek Srivastava (supra) so that they may also be entitled for benefit. A person who is sitting at fence is not entitled for benefit of Abhishek Srivastava (supra), wherein specific direction was passed that it will be applicable only to appellants and writ petitioners therein.

5. In view of above, I do not find any merit in writ petition. Dismissed accordingly.

Order Date :- 19.1.2023

Nirmal Sinha