Rezy Jain vs Cantonment Board & Others
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Uttarakhand High Court

Rezy Jain vs Cantonment Board & Others on 27 February, 2024

Author: Pankaj Purohit

Bench: Pankaj Purohit

HIGH COURT OF UTTARAKHAND AT NAINITAL

             Writ Petition (S/S) No.1304 of 2021

Rezy Jain                                       ........Petitioner

                             Versus

Cantonment Board & others                     ........Respondents
Presence:-
Mr. Nandan Arya along with Mr. M.S. Dhapola, learned counsel(s) for
the petitioner.
Ms. Monika Pant, learned Standing Counsel for respondent nos.1 and
2, through Video Conferencing.
Mr. V.K. Kapruwan, learned counsel for respondent no.3.

Hon'ble Pankaj Purohit, J. (Oral)

Heard learned counsel for the parties.

2. By means of this writ petition, petitioner has sought indulgence of this Court for challenging the order dated 02.07.2021 passed by the respondent-Board by which the representation of petitioner has been rejected only on the ground of delay and laches, and with a further prayer to issue a writ in the nature of mandamus directing the respondents to issue appointment letter in favour of petitioner pursuant to her selection in the process held on 31.03.2011.

3. It is contended by learned counsel for the petitioner that the respondent-Cantonment Board started the process for supplying three vacancies on the post of Assistant Teacher, Primary School by issuing the advertisement on 24.06.2010. Petitioner, being eligible, offered her candidature for the said post. The written examination was conducted on 15.03.2011 wherein petitioner scored 78 out of 100 marks, and she was on the top of select/merit list.

4. Unfortunately, on certain complaints, the entire selection process was cancelled by respondent- Cantonment Board vide its order dated 12.05.2011. Two candidates, who ranked lower to petitioner, challenged the order dated 12.05.2011 by filing WPSS No.1027 of 2011 'Mohd. Kaleem and another v. Cantonment Board, Roorkee'. A Co-ordinate Bench of this Court vide judgment and order dated 15.05.2013 allowed the writ petition and quashed the order of cancellation of selection process dated 12.05.2011 passed by the respondent- Cantonment Board. The said order dated 15.05.2013, passed by a learned Single Judge of this Court was carried in appeal by filing Special Appeal No.345 of 2013 (Cantonment Board v. Mohd. Kaleem and another) which met with the fate of dismissal. Thereafter, SLP (C) No.4370 of 2019 (Cantonment Board v. Mohd. Kaleem & another) was filed before the Hon'ble Supreme Court by the Cantonment Board, which also met with the same fate. Accordingly, the judgment passed by the learned Single Judge attained finality.

5. After the closure of Court proceedings, as stated hereinabove, the respondent-Cantonment Board gave appointment to Mohd. Kaleem and Siddharth Kapoor who were placed at Serial Nos.2 and 3 in the select/merit list and secured lesser marks than the petitioner, but for the reasons best known to the Board, petitioner has not been given the benefit of earlier litigation.

6. Petitioner, when came to know about the aforesaid developments, moved this Court by filing WPSS No.355 of 2020 (Rezy Jain v. Cantonment Board, Roorkee Cantt). The said writ petition, purely on the ground of laches, was dismissed by a Co-ordinate Bench of this Court, by reason of order dated 27.02.2020, but a liberty

was given to the petitioner to approach the competent authority in Board by making a representation which was directed to be decided in accordance with law.

7. The petitioner accordingly moved representation ventilating her grievance which has been turned down vide order dated 02.07.2021 passed by respondent no.2 (Annexure No.14 to the petition), merely on the ground of delay and laches ignoring the fact that she was on the top of merit/select list. In this backdrop, petitioner has knocked the doors of this Court.

8. A counter affidavit has been filed on behalf of respondent-Cantonment Board wherein it is mainly stated that the petitioner, sitting at the fence for approximately a decade, cannot be permitted to take advantage of her own laches and further, she cannot be permitted to rake up a stale issue at such a belated stage. It is also stated that the post in question is not lying vacant at present.

9. Petitioner filed her rejoinder to the counter affidavit filed on behalf of respondent-Cantonment Board thereby denying the averments made in the said affidavit and also reiterating the averments of the writ petition.

10. I have heard learned counsel for the parties at length and carefully perused the entire material available on record.

11. It is contended by learned counsel for the petitioner that petitioner was the topper of selection process initiated by respondent no.2-Board and after the appointment was given to the persons who ranked lower to the petitioner and who were at Serial Nos.2 and 3 of the select list, in no case, the petitioner should have been segregated and/or denied the privilege of being appointed as Assistant Teacher, Primary School with the

respondent-Cantonment Board. It is further contended that the action of respondent-Cantonment Board is highly arbitrary and the same has no legs to stand.

12. On the other hand, learned Counsel appearing for respondent-Cantonment Board has vehemently argued that there is an inordinate delay in filing the present petition, and moreover, the earlier writ petition moved by petitioner, being WPSS No.355 of 2020, was dismissed by the Court only on the ground of delay and laches, therefore, the petitioner cannot file the second writ petition for the same cause of action.

13. It appears to be very unfortunate that when the cancellation of selection process was quashed by this Court, the benefit of such quashment of selection process was not given to the petitioner who was at the top of select list. In the opinion of the Court, the same ought to have been automatically extended to the petitioner but the respondent-Cantonment Board, for the reasons best known to it, has refused to extend such benefit to the petitioner who was a topper in the select list having secured 78 out of 100 marks. Such inaction on the part of respondent-Cantonment Board cannot be countenanced by any stretch of imagination for the reason that there was delay on the part of petitioner. The rights which have already been crystallized in favour of petitioner cannot be denied merely on the ground of delay and laches. The respondent-Cantonment Board should have considered the case of petitioner on its own once the cancellation of selection process was set-aside by this Court which attained finality upto the Hon'ble Apex Court.

14. So far as the argument advanced by learned Counsel for the respondent-Cantonment Board regarding

delay and laches is concerned, this Court is of the considered opinion that once the petitioner was given opportunity by this Court to move a representation seeking redressal of her grievance, now, after dismissal of her representation, a fresh cause of action has arisen in favour of petitioner to file a fresh writ petition against the order dated 02.07.2021 passed by the respondent- Cantonment Board.

15. In this regard, the judgment rendered by the Apex Court in the case of 'State of Uttar Pradesh and others v. Arvind Kumar Srivastava and others' reported in (2015) 1 S.C.C. 347 is worth consideration. For the sake of convenience, relevant portion of the said judgment is quoted hereinbelow: -

"..........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."

16. In such view of the matter, this Court finds no substance in the argument put forth by learned counsel for the respondent-Board and the same is, accordingly, discarded.

17. For the aforesaid reasons, the writ petition is allowed. The order dated 02.07.2021 passed by respondent-Cantonment Board is hereby quashed. At the same time, a writ in the nature of mandamus is issued to respondent nos.1 and 2 to issue appointment letter to the petitioner pursuant to her selection in the selection process held pursuant to the advertisement dated 24.06.2010, at the earliest but not later than one month from the date of production of a certified copy of this judgment. It is made clear that the petitioner shall not be entitled for the arrears of salary during which she has not served; at the same time, it is directed that the petitioner shall be entitled for all notional benefits including pay, seniority and other consequential benefits. No order as to costs.

(Pankaj Purohit, J.) 27.02.2024 R.Dang