Allahabad High Court
Hanumant Kumar Tiwari vs State Of U.P.Thru Secy. Basic Education ... on 24 May, 2024
Bench: Chief Justice, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2024:AHC-LKO:39728-DB
Chief Justice's Court
Case :- SPECIAL APPEAL No. - 211 of 2023
Appellant :- Hanumant Kumar Tiwari
Respondent :- State Of U.P.Thru Secy. Basic Education Lucknow And Ors.
Counsel for Appellant :- Amrendra Nath Tripathi,Kumkum Tripathi
Counsel for Respondent :- C.S.C.,Ajay Kumar
Hon'ble Arun Bhansali,Chief Justice
Hon'ble Jaspreet Singh,J.
(Per: Jaspreet Singh. J)
1. Heard Heard Shri Amrendra Nath Tripathi, learned counsel for the appellant and Shri V.P. Nag, learned Standing Counsel for the State as well as Shri Ran Vijay Singh, learned counsel for the respondent no. 2.
2. The appellant is an unsuccessful candidate who had appeared in an examination for recruitment for the post of Assistant Teacher (ATRE 2018) in the year 2018.
3. The issue agitated before the writ court was in respect of question no. 10 contained in the booklet 'C' Series which as per the appellant was correctly answered by him but it did not match with the model answer sheet published by the Examination Regulatory Authority and as per the appellant had he got that one mark, he would have qualified the cut-off for being considered for the post of Assistant Teacher.
4. The writ petition preferred before the learned Single Judge was dismissed by means of order dated 30th September, 2019 which is under challenge in this intra-court appeal.
5. Sri Amrendra Nath Tripathi, learned counsel for the appellant has primarily focused his submissions on the ground that the issue in question is squarely covered by a decision of this Court in Writ-A No. 5365 of 2019 (Radha Devi Vs. State of Uttar Pradesh and Others) wherein the Court had returned a finding that the correct answer to question no. 10 of the question booklet series 'C' (equivalent question in other series), was "Deergha Sandhi" (दीर्घ सन्धि) or "Swar Sandhi" स्वर सन्धि.
6. It is further submitted that the interim order dated 03.05.2019 passed in Radha Devi (supra) merged in the final decision dated 17.05.2019 and the writ petition was allowed. The endeavor of the State to assail the said judgment did not find favour with a Division Bench of this Court and the appeal was dismissed on 20th August, 2019. A further endeavor of the State to assail the said order before the Apex Court also did not find favour as the SLP was dismissed on 09.10.2020.
7. Sri Tripathi, further urged that the said recruitment examination held for the post of Assistant Teachers had advertised 68,500/- post and in light of the order passed in Radha Devi (supra), the question No. 10 which was answered by the appellant was found to be correct and in this manner if the appellant is granted marks against the said question then the appellant would stand qualified making the cut-off for the written examination and he may be permitted to be considered against any vacant post advertised for the said examination.
8. It is further urged that the case of the appellant is squarely covered by the decision of this Court in the case of Radha Devi (supra) which has attained finality as the said judgment was assailed before the Apex Court by the State which was not interfeared with and in the aforesaid circumstances, the appellant be also granted the said benefit.
9. Sri V.P. Nag, learned Standing Counsel appearing for the State as well as Sri Ran Vijay Singh, learned counsel for the respondent no. 2 have opposed the submissions made by learned counsel for the appellant.
10. The thrust of the submissions of the learned Standing Counsel as well as the learned counsel for the respondent no. 2 is that the appellant has not followed the process as indicated in the instructions for the candidates relating to raising objections in respect of an answer as contained in the model answer sheet.
11. It is stated that the examination was held on 27.05.2018 and the model answer sheet was uploaded on 06.06.2018. As per the instructions, any candidate aggrieved by an answer in the model answer sheet could file his objections against the same between 06.06.2018 up to 09.06.2018, however, it is urged that the appellant did not file any objection.
12. The appellant being a fence sitter did not assail the same and only when the petition by similarly situated candidate was filed and then interim order was passed thereafter the appellant filed his writ petition which came to be dismissed by the learned Single Judge by means of order dated 30th September, 2019 and against the said order, the appellant waited to see the fate of the petition filed by Smt. Radha Devi (supra) and thereafter decided to file this instant intra-court appeal. In such circumstances, the appellant is not entitled to any benefit especially when the appellant altogether had not raised objections within the time provided thereafter filed the petition only after the interim order was passed in Radha Devi and even though his petition bearing No. 27272 (SS) of 2019 was dismissed on 30th September, 2019 yet the instant appeal was filed with much delay.
13. Even though, the delay may have been condoned but the fact still remains that in matters relating to public employment/recruitment, a person who does not approach the Court expeditiously and sleeps over his/her right, such a candidate cannot be permitted to take benefit of an order passed in a petition of a candidate who had approached the Court promptly and in the aforesaid backdrop the learned Single Judge has rightly dismissed the petition, consequently, the instant appeal also must fail.
14. The Court has heard the learned counsel for the parties and also perused the material on record.
15. The facts in between the parties is not much in dispute. It is not disputed that the examination for Assistant Teacher recruitment was held on 27.05.2018 wherein the appellant had appeared as a candidate.
16. It is also not disputed that in so far as the question No. 10 in the booklet 'C' series, the appellant had answered the said question as "Deergha Sandhi" (दीर्घ सन्धि). The model answer sheet was uploaded on 06.06.2018 and the model answer for question no. 10 'c' series was "vridhi sandhi/swar sandhi" (वृधि सन्धि / स्वर सन्धि).
17. It is also not disputed that the appellant did not raise any objection to the said answer within the period as provided i.e. from 06.06.2018 till 09.06.2018.
18. It is also not disputed that the appellant did not seek the carbon copy of his answer sheet from the invigilator despite a provision being there and known to the candidates as it was part of the important instructions for candidates duly published. It is further not disputed that the appellant did not file the writ petition assailing the same promptly.
19. It is in the aforesaid backdrop that the learned Single Judge considering the facts and circumstances dismissed the writ petition specifically noticing that the appellant had not raised the objections within the time provided nor the appellant had sought the carbon copy of his answer sheet and it is only at a later stage that the writ petition was filed and noticing the observations of the Apex Court in Ran Vijay Singh and others Vs. State of U.P. & Others ; 2018 (2) SCC 357, the learned Single Judge found that for the reasons aforesaid, the petitioner was not entitled to the relief and dismissed the petition.
20. The primary submission made by learned counsel for the appellant is based only on the order passed by this Court at Allahabad in the case of Radha Devi (supra). It may be correct to say that the answer given by the appellant as Deergha Sandhi" (दीर्घ सन्धि) had found favour with the learned Single Judge at Allahabad in the case of Radha Devi (supra), however, the fact remains that the appellant did not raise any objections to the model answer sheet within the time period as provided. Even having missed the said window, the appellant did not raise the issue promptly rather only after the interim order was passed in the case of Radha Devi (supra) that the petition came to be filed on the ground of latches.
21. Though, the writ petition was dismissed on 30th September, 2019, however, the instant appeal came to be filed in January, 2021 i.e. almost after a year and a quarter and even though the delay in filing the instant appeal has been condoned by a coordinate Bench of this Court by means of order dated 26.04.2023 but the fact remains that filing an appeal with delay and giving a plausible explanation for seeking condonation of delay is a different issue altogether but primarily the issue before this Court is a little different, inasmuch as, whether the a person can prolong the finality of a recruitment process relating to public service by judicial intervention while not approaching the Court promptly.
22. This Court is reminded of the decision of the Apex Court in State of Uttar Pradesh Vs. Arvind Kumar Srivastava; 2015 (1) SCC 347 and the relevant part read as under:-
"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under.
22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.
23. Similarly, this aspect was also considered by the Apex Court in State of Uttar Pradesh Vs. Pankaj Kumar; 2022 (1) SCC 335 and the relevant portion reads as under:-
"12. In that background, it is to be noted that another learned Single Judge of the High Court in a similar circumstance had dismissed Writ Petition No. 3647 of 2019 filed by one Radha Sharma seeking similar relief and the said order [Radha Sharma v. State of U.P., 2019 SCC OnLine All 6929] was upheld by the Division Bench in Radha Sharma v. State of U.P. [Radha Sharma v. State of U.P., 2019 SCC OnLine All 6928] The order of the learned Single Judge was dated 13-5-2019 [Radha Sharma v. State of U.P., 2019 SCC OnLine All 6929] . In any event, though indulgence was shown in the earlier cases, a line has to be drawn at some stage as otherwise, the recruitment process undertaken by the competent authorities would be meaningless without a timeline and the next recruitment process will also get affected since determination of the number of vacancies for the next process will keep fluctuating. The process herein had commenced in the year 2015 and the document verification along with the physical fitness test was held in 2018. Several candidates who were permitted pursuant to the order of the High Court had taken part in early January 2019. Since, sufficient time has elapsed thereafter it would not be appropriate to make an exception in the case of the respondent at this stage as otherwise the trickle would continue.
24. Considering the aforesaid observations and noticing the fact which is undisputed that the appellant did not raise any objections at the first instance, when he was required to do so within the time window granted by the Examination Agency and further noticing that in case if such petitions are entertained, this tricle will never stop which is not in the larger interest as in this fashion the candidates who have already been selected and many other candidates who have not approached the Court till now, would be encouraged which will open a floodgate and the entire recruitment will be is faced with uncertainty and this cannot be countenanced.
25. For the aforesaid reasons, we do not find that the learned Single Judge has committed an error which may persuade this Court to interfere, accordingly, we are of the opinion that the appeal sans merit and is accordingly dismissed affirming the order passed by the learned Single Judge dated 30th September, 2019 passed in W.P. No. 27272 (SS) of 2019. Costs are made easy.
Order Date :- 24th May, 2024
Asheesh Kumar
(Jaspreet Singh, J.) (Arun Bhansali, CJ)
