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Allahabad High Court · body

2016 DIGILAW 3687 (ALL)

Varunesh Chandra Shukla v. State of U. P.

2016-11-10

P.K.S.BAGHEL

body2016
JUDGMENT Pradeep Kumar Singh Baghel, J. 1. The petitioner was a candidate for appointment on the post of Subject Expert. He has instituted this writ proceedings under Article 226 of the Constitution for issuance of a writ of certiorari to quash the order dated 10.09.2015 passed by the third respondent. 2. The essential facts of the case are that an advertisement was issued by the respondent authority on 12.12.1999 calling applications from the eligible candidates for appointment as Subject Expert in the recognized institution. The petitioner made an application in pursuance of the said advertisement and was found to be suitable for the said post. However, by an order dated 12.10.2000 the entire selection was cancelled. One of the candidates Awadhesh Kumar preferred Writ-A No. 10448 of 2001 (Awadhesh Kumar v. State of U.P. & Others) in this Court at Allahabad, wherein the Court directed to produce the report of the Special Secretary dated 18.10.2000 on the basis of which the decision was taken to cancel the entire selection. 3. Having perused the aforesaid report, the Court was satisfied that the entire selection should not have been cancelled and a direction was issued to the State Government to constitute a Scrutiny Committee for segregating untainted and tainted selection. The said writ petition was allowed on 09.03.2010 with the aforesaid direction. The petitioner also preferred writ petition i.e. Service Single No. 7474 of 2000 (Rati Bhan Singh Chauhan and others v. State of U.P. and others) in this Court at Lucknow. The said writ petition was allowed on 26.03.2012 following the judgement in Awadhesh Kumar (supra) and a direction was also issued that the earlier impugned order dated 12.10.2000 passed by the Joint Director of Education shall be ignored. The Joint Director was directed to decide the matter in terms of the observations made in this judgement within six weeks. 4. In compliance of the said directions, the Joint Director passed an order dated 11.01.2013 rejecting the claim of the petitioner on the ground of delay. The petitioner again challenged the said order by means of a writ petition i.e. Service Single No. 1369 of 2013 (Pramod Kumar and others v. State of U.P. and others). The said writ petition was again allowed by order dated 07.07.2015 and the order of the Joint Director was set aside and the matter was remitted to the Joint Director to decide it afresh. The said writ petition was again allowed by order dated 07.07.2015 and the order of the Joint Director was set aside and the matter was remitted to the Joint Director to decide it afresh. The Joint Director on the third time has rejected the claim of the petitioner amongst other on the grounds; the selection of Subject Experts was a short term measure and (ii) the order of Awadhesh Kumar was in respect of the petitioner therein. 5. A counter affidavit has been filed. The stand taken in the counter affidavit is that the order in Awadhesh Kumar (supra) was a judgment in persona and not in rem hence the benefit of the said order cannot be extended to the petitioner. In the counter affidavit it is also stated that the Scrutiny Committee had found the petitioner's selection untainted. 6. I have heard learned counsel for the petitioner and the learned Standing Counsel. 7. Learned counsel for the petitioner Sri Umesh Chandra Pandey submits that in compliance of the order of this Court the Scrutiny Committee was constituted by the State Government and it found that the selection of the petitioner was fair and no illegality was found therein. He has also invited the attention of the Court to the judgment in Awadhesh Kumar (supra) to demonstrate that the order of this Court was a general in respect of all the selected candidates and it was not confined only in respect of the selection of the petitioner therein i.e. Awdhesh Kumar. Lastly, he urged that there is no delay on the part of the petitioner as he is pursuing his legal remedy right from the year 2000 when his selection was cancelled, therefore, his case cannot be rejected on the ground of delay or laches. 8. Learned Standing Counsel submits that purpose of selection of the petitioner has come to an end and the direction was for the State Government to consider, however, the State Government has not considered the report of the Scrutiny Committee so far. No other submission has been made. 9. I have considered the submissions advanced by learned counsel for the parties and perused the record. 10. An advertisement was issued by the appropriate authority on 12.12.1999. The petitioner fulfilled the eligibility mentioned in the advertisement and made an application for his appointment as a Subject Expert. No other submission has been made. 9. I have considered the submissions advanced by learned counsel for the parties and perused the record. 10. An advertisement was issued by the appropriate authority on 12.12.1999. The petitioner fulfilled the eligibility mentioned in the advertisement and made an application for his appointment as a Subject Expert. He has been found suitable and his name was included in the select list, however, by a general order the entire selection was cancelled. The said decision of the State Government came to be challenged in the case of Awadhesh Kumar (supra). At the same time the petitioner had also challenged the same selection in this Court at Lucknow in the year 2002. Both the petitions were allowed in the year 2010 and 2012 respectively. 11. In the case of Awadhesh Kumar (supra) this Court was satisfied that the State Government was not justified in accepting the report of the Special Secretary on the basis of which the entire selection was cancelled. Relying on the judgement of the Supreme Court in the case of Inderpreet Singh Kahlan and others v. State of Punjab and others, (2006) 11 SCC 356 the Court directed the State Government to constitute a Scrutiny Committee to find out illegality in each case. From the tenor and nature of the directions of this Court in Awadhesh Kumar's case it clearly demonstrates that the intention of the Court was to save the selection and not to give relief only to the petitioner Awadhesh Kumar. For the sake of convenience operative part of the order in Awadhesh Kumar (supra) is extracted herein below: "Let the State Government constitute a Scrutiny Committee in respect of the selection in question, for segregating the good part from bad part, after examination of the records of each of the selected candidate separately. The aforesaid exercise may be completed within four months from the date a certified copy of this order is filed before the respondent no. 1. Writ petition is disposed of. " 12. In compliance of the order in Awadhesh Kumar's case, a Scrutiny Committee was constituted and it has undertaken exercise to find out fair and tainted selection. It is on the record that the appropriate authority has issued appointment letter to Awadhesh Kumar, the petitioner of the said writ petition on notional ground. 1. Writ petition is disposed of. " 12. In compliance of the order in Awadhesh Kumar's case, a Scrutiny Committee was constituted and it has undertaken exercise to find out fair and tainted selection. It is on the record that the appropriate authority has issued appointment letter to Awadhesh Kumar, the petitioner of the said writ petition on notional ground. However, in the case of the petitioner, who had filed a writ petition in the year 2002 which was allowed in the year 2012, a different stand has been taken by the Joint Director of Education. 13. The Joint Director in his earlier order dated 11.01.2013 took a stand that there was delay on the part of the petitioner. The said stand was totally misconceived as the petitioner had immediately filed a writ petition. The said writ petition is still pending and it was moved in the year 2012 thus the stand taken by the Joint Director that the case of the petitioner was hit by delay, was totally unsustainable. Moreover, the said order was quashed by this Court in Service Single No. 1369 of 2013 and the matter was remitted back. In the impugned order now the Joint Director has taken a fresh ground and has stated that now after such a long time there was no need for the appointment of Subject Expert. The said view of the Joint Director is untenable. 14. The stand taken in the counter affidavit that the order in Awadhesh Kumar (supra) was in persona and not in rem, is misconceived. The direction of the Court itself indicates that the Court has directed to constitute a Scrutiny Committee in respect of all the candidates and not only for Awadhesh Kumar. 15. It is a settled law that the rights of parties are adjudicated upon on the basis of the facts at the point of time when the petitioner approaches the Court. The petitioner had filed a writ petition in the year 2000, therefore, merely because a long time has elapsed the right of the petitioner could not be affected. Moreover, from the direction of this Court in Awadhesh Kumar (supra) it is manifestly clear that it was a general direction in respect of all the candidates, thus the finding recorded by the Joint Director is extraneous to the aforesaid facts. 16. Moreover, from the direction of this Court in Awadhesh Kumar (supra) it is manifestly clear that it was a general direction in respect of all the candidates, thus the finding recorded by the Joint Director is extraneous to the aforesaid facts. 16. In the counter affidavit as well as in the order, it is also recorded that the Scrutiny Committee has found that the selection of the petitioner is valid. 17. In view of the said facts the order of the Joint Director of Education dated 10.09.2015 is set aside. The matter will be considered by the State Government. Accordingly, the order of the Joint Director is quashed. A direction is issued upon the first respondent to consider the matter of the petitioner in the light of the directions issued in Awdhesh Kumar (supra) expeditiously, preferably within three months from the date of communication of this order. 18. The writ petition is, accordingly, allowed. 19. No order as to costs.