Sushil Kumar Mall vs State Of U.P. And 3 Others
2023 Latest Caselaw 18464 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:145451
 
Court No. - 36
 

 
Case :- WRIT - A No. - 1650 of 2023
 

 
Petitioner :- Sushil Kumar Mall
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shivendu Ojha,Sneh Pandey,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Archana Singh
 

 
Hon'ble Manjive Shukla,J.

1. Heard learned counsel appearing for the petitioner, learned Standing Counsel appearing for Respondents No. 1, 2 and 4 as well as Mr. Shresth Pratap Singh, Advocate holding brief of Mrs. Archana Singh, learned counsel appearing for Respondent No. 3.

2. Brief facts of the case are that petitioner appeared in Assistant Teacher Recruitment Examination 2019 for appointment on the post of Assistant Teacher in the primary schools run by U.P. Basic Education Board. Petitioner appeared in the written examination on 06.01.2019. Final answer key of the written examination was published by Respondent No. 4 on 08.01.2019. Petitioner's name appeared in the final list of the selected candidates published by Respondent No. 4. Petitioner thereafter was called upon to appear in the counseling for appointment on the post of Assistant Teacher but petitioner deliberately did not choose to appear in the counseling.

3. Later on after counseling, the selection process was concluded and the selected candidates were offered the appointments.

4. Entire exercise for selection and appointment has already been concluded. Now the petitioner after about four years has filed this Writ Petition inter-alia praying therein for the following reliefs:

"(A)- Issue a writ, order or direction in the nature of mandamus commanding and directing to the respondent authorities to permit the petitioner to participate if any counseling which will be conducted by the respondent authority for filling up the vacancy for the post of Assistant Teacher Recruitment Examination 2019 of 69000 vacancy.

(B) To issue a writ, order or direction in the nature of mandamus commanding and directing the respondents authority to decide the representation dated 04.01.2023 (Annexure No. 7 to this writ petition) moved by the petitioner before the respondent no. 3 within stipulated period as fixed by this Hon'ble Court.

(C) To issue any other writ, order or direction which this Hon'ble Court deems fit and proper in the circumstances of the case.

(D) Award costs of this writ petition to the petitioner."

5. Learned counsel for the petitioner has vehemently argued that subsequently certain writ petitions were filed in respect of the aforesaid selection and against the order passed by the single Judge of this Court, bunch of Special Appeals were filed before Division Bench of this Court i.e. leading Special Appeal Defective No. 343 of 2021 (Abhishek Srivastava and 14 Others Vs. State of U.P. and Others) and other connected Special Appeals.

6. Division Bench of this Court has decided the aforesaid bunch of Special Appeals vide judgement and order dated 25.08.2021. Operative portion of the judgement and order dated 25.08.2021 is extracted as under:

"As an outcome of the discussion aforesaid, we find reason to cause interference in the judgement of the learned Single Judge limited to Question No. 60 and not for in any other questions for which objections have been raised by the appellants.

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.

The matter is not referred to the expert for its examination finding that answer to Question No.60 was not correctly selected. The issue could not even be contested by the respondents thus to avoid further delay in the matter, we direct the respondents to take a decision appropriately to award one mark to the litigants till date.

To avoid any complication, the non-appellants can give value of one mark to the litigants for Question No.60 which otherwise can be with deletion to increase the value of all the questions proportionately but then it may open a Pandora and this Court do not intend to disturb the appointments already made thus direction is kept limited to the writ petitioners. If with award of one mark to any of the litigants till date before Allahabad High Court, they find place in the merit, then the respondents would give them appointment, subject to satisfaction of other conditions, if any.

The exercise aforesaid would not effect in any manner the selection or 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.

With the aforesaid direction, all the appeals are disposed of after causing interference in the impugned judgment limited to Question No. 60."

7. Learned counsel appearing for the petitioner has also apprised this Court that Special Leave Petition filed against the aforesaid judgement and order dated 25.08.2021 passed in Special Appeal Defective No. 343 of 2021, has been rejected by Hon'ble Supreme Court.

8. Learned counsel for the petitioner on the strength of aforesaid Division Bench judgement of this Court, has argued that the petitioner may be given opportunity to appear in the counseling for the aforesaid exercise of selection and if his documents are found in order, he may be given appointment for the post of Assistant Teacher.

9. On the other hand, Mr. Shresth Pratap Singh, Advocate holding brief of Mrs. Archana Singh, learned counsel appearing for Respondent No. 3 has vehemently argued that the entire selection process has already been concluded and from a bare perusal of the Division Bench judgement and order dated 25.08.2021 passed in Special Appeal Defective No. 343 of 2021, it clearly comes out that the selection process has already been finalized and the Division Bench of this Court has extended certain benefits of awarding one mark to candidates who were before the Court on the date of judgement.

10. Mr. Shresth Pratap Singh, Advocate has also vehemently argued that the said benefit has been confined only to the candidates who were before the Court and it has been categorically provided by Division Bench of this Court that no other person is entitled for the said benefit.

11. Mr. Shresth Pratap Singh, Advocate, in view of the aforesaid order passed by this Court, contended that at this belated stage, the exercise of selection cannot be re-opened and petitioner cannot be allowed to participate in the counseling and thereby there is no occasion for offering him appointment on the post of Assistant Teacher.

12. I have considered the submissions advanced by learned counsels for the parties and I find that process of selection is already over and all the selected candidates have been given appointments and they are working on their respective posts. So far as judgement and order dated 25.08.2021 passed by Division Bench of this Court in Special Appeal Defective No. 343 of 2021 is concerned, I find that the Division Bench of this Court has confined benefit of the said judgement only to the candidates who approached the Court well within time and were before the Court on the date of the judgement.

13. In the aforesaid circumstances, I am of the considered view that the petitioner cannot be extended the benefit of the aforesaid judgement. More so petitioner's name appeared in the select list in the year 2019 and he voluntarily did not appear in the counseling at that particular time and now after four years, his claim before this Court through this Writ Petition to allow him to participate in the counseling and thereby to offer him appointment, is absolutely unsustainable in the eyes of law as the selection process which already stood finalized, cannot be re-opened merely because petitioner could not appear in the counseling process.

14. In view of the aforesaid, this Writ Petition filed by the petitioner lacks merit and is accordingly dismissed.

Order Date :- 21.7.2023

A. Mandhani