Ashok Kumar Srivastava vs State Of U.P. Thru. Addl. Chief Secy. ...
2024 Latest Caselaw 36385 ALL

Allahabad High Court

Ashok Kumar Srivastava vs State Of U.P. Thru. Addl. Chief Secy. ... on 6 November, 2024

Author: Alok Mathur

Bench: Alok Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:73212
 
Court No. - 6
 

 
Case :- WRIT - A No. - 9052 of 2024
 

 
Petitioner :- Ashok Kumar Srivastava
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Lko And 3 Others
 
Counsel for Petitioner :- Jitendra Kumar Pandey,Ankit Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Alok Mathur,J.
 

1. Heard Shri Jitendra Kumar Pandey, learned counsel for petitioner, learned Standing Counsel for the State and perused the material available on record.

2. The controversy in the present case pertains to the participation of the petitioner and consequential appointment in the recruitment to the post of Constable, which was published in the year 1995. The petitioner claims that he had applied for the post of Constable in pursuance of the advertisement issued by the Police Department and successfully completed the physical test and thereafter he was issued a called letter to appear in the written examination. While the petitioner was appearing in the written examination, he was caught by Sub Inspector Bachhrawan and allegation was levelled against him that he is not the same person who had filled up the form and allegation solely pertains to the identity of the petitioner as to whether he was the same individual who had applied and appeared in the previous examination.

3. It is on initiation of criminal proceedings and action taken by the respondents that the petitioner could not further participate in the selection process. In the criminal proceedings, the trial was held and the petitioner was exonerated and the charges levelled against him were not proved, which was duly recorded in the order of the trial court dated 08.03.2006 passed by the learned Chief Judicial Magistrate, Sultanpur.

4. A perusal of the aforesaid judgment indicate that the respondents could not adduce any cogent evidence in support of the charge of impersonation that the petitioner was not the individual who had filled up the form and participated in the examination. On his being exonerated, the petitioner had filed a Writ Petition being Writ Petition No. 1279 (SS) of 2007 before this Court seeking a direction for appointment stating that he had deliberately not been allowed to continue to appear in the examination on false and flimsy grounds and therefore, he should be compensated by appointing him to a suitable post in pursuance to the aforesaid recruitment process. The writ petition was heard and decided by this Court by means of judgment and order dated 04.02.2020 where this Court held that the respondents could not justify the charge of impersonation levelled against the petitioner and even in the criminal proceedings, no cogent evidence could be adduced by them to show that the petitioner was not the same person who had filled up the form and participated in the written examination. Accordingly the writ petition was allowed in the following terms:-

"8.It is a natural consequence of legal proceedings that charges levelled against a person are required to be proved by documentary or oral evidence, which is substantiated. In the present case, it is clear and evident that although the charge of impersonation had been levelled against petitioner but the same could not be established by opposite parties themselves. Even the original records pertaining to the selection on the said post in the year 1995 were not produced by the opposite parties in order to substantiate the charges levelled against petitioner. In the aforesaid circumstances, it is clear that the allegations against the petitioner cannot stand.

9. Consequently, the writ petition is allowed by issuing a writ in the nature of Mandamus directing opposite parties to consider petitioner's candidature on the post of Police Constable with opposite parties.

10. Necessary action for the same shall be taken by the opposite parties within a period of four weeks from the date a copy of this order is produced before the concerned authorities."

5. The State being aggrieved by the judgement and order dated 04.02.2020 passed by the learned Single Judge had preferred a special appeal being Special Appeal No. 247 of 2021, which was dismissed by means of judgment and order dated 18.07.2023. The Division Bench concurred with the finding recorded by the learned Single Judge but observed that whether any post exists or whether after lapse of 25 years any appointment can be granted is a matter to be considered by the department and a decision is to be taken but was clearly of the view that the State cannot evade of its duty of taking a decision when a clear direction has been issued by the learned Single Judge.

6. It is in light of the aforesaid facts and the judgement of this Court that the respondents had proceeded to consider the candidature of the petitioner for appointment and has passed the impugned order dated 21.02.2004, which has been assailed in the present writ petition.

7. While considering the candidature of the petitioner, they have dealt at length with the facts pertaining to impersonation of the petitioner and have also commented upon the judgment of this Court but also with regard to the material which was available before this Court while rendering the judgment in Writ Petition No. 1279 (SS) of 2007. This Court does not appreciate the respondents commenting upon the judgment but will deal with this aspect in the latter part of the present judgment.

8. While considering the candidature of the petitioner, it has been considered that for the post of Constable according to the Rules, that a candidate should be in between 18 to 22 years and his height should be 168 c.m. apart from other physical attributes.

9. It has been considered that the petitioner has attained the age of 47 years and does not fulfill the physical requirements as required for the said post.

10. Learned counsel for petitioner submitted that the petitioner was not subjected to any medical examination before considering the physical attributes on the basis of which his candidature was rejected.

11. Undoubtedly the petitioner was denied participation in the recruitment examination because of the allegations levelled by the respondents. The said allegations could not be substantiated by them due to which the criminal prosecution also failed and the petitioner was exonerated of the charges levelled against them. It is on this account that the learned Single Judge of this Court considering entire facts of the case in Writ Petition No. 1279 (SS) of 2007 had allowed the writ petition and directed the respondents to consider the candidature of the petitioner on the post of Police Constable.

12. Even the Special Appeal preferred by the State could not succeed and the reasons given in the impugned order are clearly illegal and arbitrary. The physical attributes, which are to be demonstrated by a candidate of 18 to 22 years cannot be the same attributes with regard to a person who had attained the age of 47 years.

13. While considering the candidature of the petitioner, it was not intention of the Court that all the conditions required to be fulfilled by a candidate at that particular stage should be fulfilled by the petitioner also.

14. The directions, which were issued by the learned Single Judge and which has also been upheld by the Division Bench of this Court are with regard to the right of restitution claimed by the petitioner, who having been illegally denied the participation in the recruitment examination has sought vindication of his rights and in the aforesaid facts this Court had directed that the candidature of the petitioner be considered for the post of Police Constable.

15. Hon'ble Supreme Court has elaborated the Doctrine of Restitution in the case of South Eastern Coalfields Ltd. v. State of M.P., reported in (2003) 8 SCC 648. It was held that:

"26. In our opinion, the principle of restitution takes care of this submission. The word "restitution" in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order (see Zafar Khan v. Board of Revenue, U.P. [1984 Supp SCC 505 : AIR 1985 SC 39] ) In law, the term "restitution" is used in three senses: (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused to another. (See Black's Law Dictionary, 7th Edn., p. 1315). The Law of Contracts by John D. Calamari & Joseph M. Perillo has been quoted by Black to say that "restitution" is an ambiguous term, sometimes referring to the disgorging of something which has been taken and at times referring to compensation for injury done:

"Often, the result under either meaning of the term would be the same. ? Unjust impoverishment as well as unjust enrichment is a ground for restitution. If the defendant is guilty of a non-tortious misrepresentation, the measure of recovery is not rigid but, as in other cases of restitution, such factors as relative fault, the agreed-upon risks, and the fairness of alternative risk allocations not agreed upon and not attributable to the fault of either party need to be weighed."

The principle of restitution has been statutorily recognized in Section 144 of the Code of Civil Procedure, 1908. Section 144 CPC speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on a par with a decree. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of a final decision going against the party successful at the interim stage. Unless otherwise ordered by the court, the successful party at the end would be justified with all expediency in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost; and it is the duty of the court to do so unless it feels that in the facts and on the circumstances of the case, the restitution far from meeting the ends of justice, would rather defeat the same. Undoing the effect of an interim order by resorting to principles of restitution is an obligation of the party, who has gained by the interim order of the court, so as to wipe out the effect of the interim order passed which, in view of the reasoning adopted by the court at the stage of final decision, the court earlier would not or ought not to have passed. There is nothing wrong in an effort being made to restore the parties to the same position in which they would have been if the interim order would not have existed."

16. It is in the aforesaid circumstances, that the respondents were required to consider the candidature of the petitioner. Clearly that the manner of consideration of the candidature of the petitioner in the peculiar facts and circumstances of the present case by the respondents is clearly illegal and arbitrary and is accordingly set aside. Therefore, the impugned order dated 21.02.2024 passed by the Superintendent of Police, Sultanpur is quashed.

17. The matter is remitted to the opposite parties to make a fresh consideration taking into account the age of the petitioner and time which has lapsed since the recruitment till his consideration and the lapse of time is solely on account of false allegation levelled against the petitioner by the respondents themselves.

18. It is open for the respondents to consider the petitioner on the post of Constable or any other equivalent post, which may be available on which the petitioner can be appointed.

19. Learned counsel for petitioner submits that the petitioner would be ready and willing to to accept any other equivalent post on which he may be appointed.

20. In light of the above, this writ petition is allowed and the respondents are directed to reconsider the candidature of the petitioner in light of the observations made here-in-above within a period of four weeks from the date a certified copy of this order is produced before the competent authority.

21. With regard to the observations made by Superintendent of Police, Sultanpur in the impugned order dated 21.02.2024, it is noticed that he has dealt with the judgment and order of this Court dated 04.02.2020 and again reiterated that the petitioner could not furnish any document in support of his claim that he is the same person, who had applied for the recruitment examination and appeared in the physical test. The said observations are clearly contrary to the directions of this Court and respondent no. 3 while passing the said order should have restrained himself from making any adverse comments against the judgment of this Court.

22. Clearly the observations made by him are contemptuous and accordingly the author of the impugned order dated 21.02.2024 is hereby directed to file a personal affidavit explaining as to why he should not be proceedings against for making adverse comments with regard to the judgment and order dated 04.02.2020 passed in Writ Petition No. 1279 (SS) of 2007.

23. Let the affidavit be filed within next four weeks before this Court.

24. For the purpose of considering the response, the respondent no. 3 list this case on 27.11.2024 in top ten cases

25. Let this order be communicated by the office of the Chief Standing Counsel to the concerned authority i.e., the author of the impugned order forthwith.

.

(Alok Mathur, J.)

Order Date :- 6.11.2024

Virendra