State Of Up & 4 Others vs Mukesh Yadav S/O, Laxman Yadav
2024 Latest Caselaw 19423 ALL

Allahabad High Court

State Of Up & 4 Others vs Mukesh Yadav S/O, Laxman Yadav on 28 May, 2024

Author: Mahesh Chandra Tripathi

Bench: Mahesh Chandra Tripathi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:96904-DB
 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
(Sl.No.51)
 
Court No. - 40
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 376 of 2024 (E-file)
 

 
Appellant :- State Of Up & 4 Others
 
Respondent :- Mukesh Yadav S/O, Laxman Yadav
 
Counsel for Appellant :- C.S.C.,Kunal Ravi Singh,S.C.
 
Counsel for Respondent :- Dushyant Kumar
 

 
Hon'ble Mahesh Chandra Tripathi,J.
 

Hon'ble Anish Kumar Gupta,J.

1. Heard Sri Kunal Ravi Singh, learned Chief Standing Counsel for the State-appellants and Sri Dushyant Singh, learned counsel for the respondent/petitioner.

2. The present intra court appeal is filed under Chapter VIII, Rule-5 of the High Court Rules, 1952 challenging the judgment and order dated 07.12.2023 passed by the learned Single Judge in Writ- A No.20295 of 2023 (Mukesh Yadav vs. State of U.P. and 4 others) whereby the writ petition was allowed with a direction, which reads as under:

"6. Accordingly, petitioner is directed to approach the authority, namely, respondent No.- 2 by means of an application annexing therewith a certified copy of this order and judgment of Division Bench decided on 31st October, 2023 in Special Appeal No.- 93 of 2023 within a period of three weeks from today and if recommendations have already not been made pursuant to the judgment of Division Bench, the concerned authority shall be passing appropriate order regarding candidature of the petitioner in accordance with law within a next two weeks' time."

3. Sri Kunal Ravi Singh, learned Chief Standing Counsel in support of his submission states that in pursuance to the advertisement dated 16.11.2018 was issued by the by the U.P. Police Recruitment and Promotion Board, Lucknow for filling up the post of Constables in Uttar Pradesh Civil Police and Provincial Armed Constabulary (P.A.C.). The selection was held as per the Uttar Pradesh Police Recruitment and Head Constable Service Rules, 2015 as amended time to time. It is stated that the process of selection will be of written examination followed by document verification along with physical standard test as well as medical examination and thereafter physical efficiency test. A total of 31360 posts of Constables (Civil Police) and 18208 of PAC were advertised. The written examination was held on 27.01.2019 and 28.01.2019 in two separate shifts. The Recruitment Board notified the cut off marks of the written examination for each category on 20.11.2019 which are as follows:

General - 185.3465

OBC - 172.3272

SC - 145.3905

ST - 114.1932

4.Consequently by a notice dated 22.11.2019, the Recruitment Board intimated the appellants that document verification/physical standard test would be held for candidates numbering 2.5 times total number of vacancies. Those who were successful, were made to undergo physical efficiency test. Thereafter the appellants, being successful in document verification/physical standard test, were permitted to participate in physical efficiency test and the said exercise was held between 28.11.2019 and 28.01.2020.

5. It transpires that with regard to some question, some doubt was created and finally the selection process was assailed by the candidates / applicants in various writ petitions and the learned Single Judge vide order dated 25.11.2022 dismissed the writ petitions. Thereafter several special appeals were filed before this Court with leading Special Appeal No. 93 of 2023 (Kapil Kumar and 7 others vs. State of U.P. and 4 others). The co-ordinate Bench of this Court finally disposed of the said appeals, the relevant paragraphs of which is extracted herein under:

"......30. These judgments, in our opinion, were based on facts of those cases. In the instant case, as noted above, the appellants have approached the Court immediately after their marks were notified and final result was uploaded and they came to know that they were short by a marginal difference. We have already held that the Recruitment Board has acted in a completely irrational manner in changing the key answer to Question No.68 of Test Booklet B, Series 17 at the time of notifying the revised answer key. Admittedly, there was no provision for filing objection after the changes made in the final answer key. There are still 603 posts vacant after final round of selection. Although it is alleged that these posts have been carried forward to the next recruitment, but even advertisement for fresh recruitment has not been issued so far. Therefore, we are of considered opinion that those appellants who are short of 2.5 marks (2 marks for correct answer and 0.5 marks deducted for negative marking) or less from the cut off marks in their respective categories, are entitled to be appointed against vacant posts, provided they qualify the medical examination or any other norm prescribed in this behalf. But this benefit would be available only to those candidates who had filed the writ petitions before this Court soon after the cut off marks were notified and not to anyone who now approaches this Court. Those who have already been selected should also not be disturbed. This would balance the interest of all sides, without causing prejudice to any one.

31. Accordingly, we set aside the judgement of learned Single Judge and dispose of the instant appeals with the following directions:-

(a) The Recruitment Board will revise the result of written examination of such of the appellants who are short of 2.5 or less marks from the cut off marks in their respective categories.

(b) The Recruitment Board will hold their medical examination and in case they succeed on all other parameters, they shall be appointed against the posts which remained vacant after the final round of recruitment. The aforesaid exercise shall be carried out within six weeks from today after due intimation and public notice to all concerned.

(d) These candidates, if selected finally, will be placed at the bottom of the seniority list, while maintaining their inter-se merit position and they shall be entitled to salary and allowances only from the date of their actual appointment, as admissible under the Service Rules.

(e) The aforesaid benefits shall only be available to those who have approached this court so far and not to any other candidate."

6. Sri Kunal Ravi Singh, learned Chief Standing Counsel vehemently submitted that from the judgment passed by the co-ordinate Bench, it clearly transpires that while passing the said judgment, the Appellate Court restricted the said benefit only to the candidates, who filed writ petition and the appeal. It is undisputed fact that the petitioner was not a party to the said appeal as such he is not entitled to get the similar indulgence, which has been extended by the learned Single Judge. He placed reliance upon para 21 of the writ petition wherein it has been claimed that the petitioner awaited for the result of the proceeding and as the decision in the aforesaid writ petition finally came out, the petitioner is filing the writ petition and delay in filing the writ petition may be condoned. He further submits that the respondent-petitioner has not approached in time. Once the co-ordinate Bench/Appellate Court has restricted the benefit, later on, the said writ petition could not be entertained and the benefit could not be extended in view of the Division Bench judgment, which has restricted the benefit only for the applicants/petitioners, who had filed the writ petition earlier. Moreover, he submits that the said selection is of the year 2018 and at this belated stage in case the order impugned survives, the respondents/appellants can suffer irreparable loss.

7. Learned counsel for the respondent/petitioners vehemently opposed the present intra court appeal and states that the learned Single Judge has considered the judgment passed by the Apex Court in State of Uttar Pradesh vs. Arvind Kumar Srivastava, (2015) 1 SCC 347 and has rightly proceeded in the matter relying upon paragraph - 22.1 wherein it has been clearly observed that if a person is identically placed and approached the Court, he is entitled to identical relief and, therefore, he should not be discriminated in the matter of relief provided of course he has approached within time. Therefore, there is no infirmity in the order passed by the learned Single Judge.

8. Heard rival submissions and perused the record. While giving the relief, the learned Single Judge has heavily relying upon the judgment passed by the Apex Court in Arvind Kumar Srivastava (supra) with an observation that the relief is to be provided to the present petitioners, who are identically placed. Of course if the respondent/petitioner would have approached within time prior to decision in Special Appeal i.e. 31.10.2023, they could have been granted parity in the matter. The appellate court judgment and order came on 31.10.2023 and the present writ petition has been preferred in the month of November 2023. Therefore, it is absolutely incorrect finding that has been returned by the learned Single Judge to the extent that the appellant has to approach well within time in the teeth of the restrictive order passed by the Division Bench.

9. Moreover, the Division Bench observed that those appellants who are short of 2.5 marks (2 marks for correct answer and 0.5 marks deducted for negative marking) or less from the cut off marks in their respective categories, are entitled to be appointed against vacant posts, provided they qualify the medical examination or any other norm prescribed in this behalf. But this benefit would be available only to those candidates who had filed the writ petitions before this Court soon after the cut off marks were notified and not to anyone who now approaches this Court. Those who have already been selected should also not be disturbed. Finally paragraph-31(e), operative portion of the judgment and order dated 31.10.2023 proceeds with an observation that the aforesaid benefits shall only be available to those who have approached this Court so far and not to any other candidate. After perusal of the aforesaid categorical order, we do not find that there was any material available to the learned Single Judge to entertain the writ petition later on and passthe order giving the benefit in the light of the judgment and order dated 31.10.2023 passed in Special Appeal No. 93 of 2023.

10. While entertaining the writ petition, the learned Single Judge has relied upon paragraph 22.1 of the judgment of the Apex Court in Arvind Kumar Srivastava (supra). However, the said general principle, which has been expressed in para 22.1 of Arvind Kumar Srivastava (supra) has been qualified by the Apex Court with para-22.2 wherein it has been stated that such general principle as narrated in para 22.1 is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Paragraphs-22.1, 22.2 and 22.3 of Arvind Kumar Srivastava (supra) are reproduced herein below:

"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). 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."

11. Since the respondent-petitioners after declaration of the cut off marks did not challenge the same within time and thereby they have acquiescessed their right to challenge the same. Merely because their counterparts who approached this Court earlier in time and succeeded in their efforts then such candidates cannot claim the benefit of the judgment rendered in favour of their counterparts, specifically when while granting the benefit to their counterparts, the Court has restricted the relief only to the persons who had approached to the Court earlier in time. Definitely, the judgment of the co-ordinate Bench passed on 31.10.2023 was not a judgment in rem and was specifically limited to the candidates, who had approached well within time before the Court and the said judgment has categorically barred any subsequently endeavor made by the similarly situated persons.

12. The judicial propriety needs that the judgments of higher Courts passed in the intra court appeals are binding on the co-ordinate Benches of the same strength and also on the Benches of the lesser strength.

13. In view of the judgment dated 31.10.2023 passed by the co-ordinate Bench, it was not open for the learned Single Judge to entertain the writ petition and take a different view in the mater.

14. Thus, the present special appeal is allowed and the order dated 07.12.2023 passed by the learned Single Judge in Writ- A No.20295 of 2023 (Mukesh Yadav vs. State of U.P. and 4 others) is hereby set aside.

Order Date :- 28.5.2024

Ashish Pd.

(Anish Kumar Gupta,J.) (M.C. Tripathi,J.)