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2016 DIGILAW 511 (ALL)

VIVEK DUBEY v. STATE OF U. P.

2016-02-12

D.Y.CHANDRACHUD, MANOJ KUMAR GUPTA, YASHWANT VARMA

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JUDGMENT Hon’ble Dr. Dhananjaya Yeshwant Chandrachud, C.J.—This reference to the Full Bench has arisen as a result of a referring order of a Division Bench dated 11 September 2015. Before we set out the questions which have been referred for decision, a brief background would be appropriate. 2. The Uttar Pradesh Public Service Commission (UPPSC) issued an advertisement on 23 March 2013 by which applications were invited for several posts in respect of which the Combined State/Upper Subordinate Services (General Recruitment) Examination, 2013 was to be held. Applications were invited for several posts, including Deputy Collector, Naib Tehsildar, Treasury/Account Officer and Designated Officer. Minimum qualifications were prescribed for various posts such as, that the candidate should be a graduate. For certain other posts, essential qualifications were prescribed. For the post of Designated Officer, the essential qualification was a post graduate degree in Chemistry. The educational qualifications prescribed serial No. 13 of the advertisement for a Designated Officer were as follows: “13. Educational Qualification : The candidate must possess Bachelors Degree of any recognized University or equivalent qualification upto the last date for receipt of application. This should be mentioned by the candidate in the relevant column of their application form but for some posts specific qualifications have been prescribed of which the details are given below. Designated Officer (1) Post Graduate Degree in Chemistry as one of the subjects from a University established by law in India or a qualification recognized by the Government as equivalent thereto.” 3. A preliminary examination was held on 26 June 2013. The results of the preliminary examination were declared on 23 May 2014. The main examinations were conducted from 1 July 2014 and results were declared on 13 January 2015. The interview was held on 3 March 2015. Final results were notified on 26 May 2015. After the marks were uploaded, according to the petitioner in the month of June 2015, he submitted a representation on 12 August 2015. The petitioner had obtained 961.6 marks in the written examination, comprised of the actual marks in the compulsory papers plus scaled score of optional papers. The petitioner scored 100 marks in the personality test. The total marks were 1061.6. 4. The petitioner had obtained 961.6 marks in the written examination, comprised of the actual marks in the compulsory papers plus scaled score of optional papers. The petitioner scored 100 marks in the personality test. The total marks were 1061.6. 4. The grievance of the petitioner was that for the post of Designated Officer, the cut off in the general category (to which the petitioner belongs) was 1050.08 marks, whereas the total marks obtained by the petitioner inclusive of the interview were 1061.6. Hence, the petitioner set up a plea that his name ought to have been included in the select list for the post of Designated Officer. 5. A writ petition was filed on 25 August 2015 by the petitioner, seeking a mandamus to UPPSC to consider his candidature for the post of Designated Officer on the ground that he had obtained more than the cut off marks in the PCS-2013 Examinations. 6. Earlier, a batch of writ petitions was filed before this Court, the lead writ petition, being Ajay Pratap Singh and others v. State of Uttar Pradesh and others, Writ Petition No. 31864 of 2014. The grievance in that group of petitions was that though the petitioners had obtained more than the cut off prescribed at the preliminary examination, they had not been declared to be eligible to appear at the main written examination. This appears to have been for the reason that when that batch of petitioners had filled out the online application forms, column No. 20 which dealt with “other essential qualification” had not been updated. The petitioners had generally selected the negative option, meaning thereby that they had no other essential qualification. It appears that under column No. 19 in the online mode, the application form contained a query as to whether the candidate was a post graduate. The candidates who were post graduates in Chemistry had filled out that column by indicating their qualifications. However, as noted above, while answering column No. 20 of the application form, they had not filled in the “other essential qualification”. When this grievance was brought before the Court, the Division Bench observed as follows : “We find that column No. 20 does not mention about specific posts. However, as noted above, while answering column No. 20 of the application form, they had not filled in the “other essential qualification”. When this grievance was brought before the Court, the Division Bench observed as follows : “We find that column No. 20 does not mention about specific posts. From a physical demonstration given by the Commission for filling up an application form online before the Court we find that when a candidate clicks ‘Yes’ in column No. 20, a window opens wherein other essential qualification such as Law graduate, Commerce graduate or post graduate in Chemistry etc. is asked for. These qualifications are nothing else but repetition of the information sought for in column No. 19. The Court further, noticed that while clicking ‘Yes’ in column No. 20 the window which opens does not mention the specific posts for which specified qualifications were asked for. We are of the opinion that the column No. 20 has no relation with the specified post, for which specified qualification was prescribed in Sl. No. 13 of the advertisement. The Court also notices that this ambiguity was rectified by the Commission while issuing the advertisement in the year 2014, wherein column No. 20 indicates “specified post details with other essential qualification”. In the light of this ambiguity contained in column No. 20 of the application form, the Court is of the opinion that the benefit of this ambiguity is required to be given to the petitioners. Since the petitioners are eligible for the post Designated Officer and they have obtained more marks than the cut-off marks depicted by the Commission, the Court is of the opinion that the candidates being eligible should be permitted to appear in the Mains Examination, which is going to be held on 1.7.2014. The Court has been informed that the last date for deposit of the fee for the Main Examination is 14.6.2014 and the last date for submission of the form is 23.6.2014.” 7. Accordingly, a writ of mandamus was issued to UPPSC to include the names of the petitioners in that batch of cases, in the list for the post of Designated Officer. UPPSC was directed to accept their fee and forms for the main examination and to extend the last date for deposit of fee and for acceptance of forms to facilitate the exercise. 8. UPPSC was directed to accept their fee and forms for the main examination and to extend the last date for deposit of fee and for acceptance of forms to facilitate the exercise. 8. Subsequently, after the results were declared on 13 January 2015, a Division Bench of this Court in a judgment dated 15 January 2015, considered a grievance which was brought before it in Vinay Kumar Pal v. State of Uttar Pradesh and others, Writ-A No. 617 of 2015. In that case, the petitioner had been considered for the post of Executive, but not for the post of Designated Officer, for the reason that he had not filled in column No. 20 which required candidates to make a specific disclosure in regard to the possession of “other essential qualification”. Reliance was placed on the judgment of the Division Bench in Ajay Pratap Singh (supra) which was delivered earlier on 13 June 2014. The Division Bench declined to examine the matter on merits on the ground that there was a “considerable delay” in approaching the Court. The Division Bench observed as follows: “We are not inclined to examine the matter on merits for the reason that there has been a considerable delay in approaching this Court. The judgment delivered in writ petitions, on which reliance has been placed by the learned Counsel for the petitioner, is in respect of candidates who had approached the Court after the declaration of the preliminary examination result. The petitioner, for reasons best known to him, did not file this petition soon after the preliminary examination was held and in fact the petitioner has filed this petition after a period of six months from the date the result of the main examination was declared. No satisfactory explanation has been offered by the petitioner for this inordinate delay.” (emphasis supplied) 9. The present petitioner filed a writ petition, as we have noted earlier, on 25 August 2015, seeking a mandamus for the consideration of his candidature for the post of Designated Officer. The petitioner appeared in the preliminary examination, the main examination and in the interview. His candidature for the post of Designated Officer was not considered on the ground that he had not uploaded the details in column No. 20 of the application in the online mode. The petitioner appeared in the preliminary examination, the main examination and in the interview. His candidature for the post of Designated Officer was not considered on the ground that he had not uploaded the details in column No. 20 of the application in the online mode. The petitioner sought the benefit of the judgment delivered by the Division Bench in Ajay Pratap Singh’s case (supra). When the petition came up for hearing, reliance was placed on behalf of UPPSC on the decision of the Division Bench in Vinay Kumar Pal (supra) and it was urged that the petitioner, having moved the writ proceedings after the declaration of the final result, the petition ought to be dismissed on the ground of delay. Finding itself unable to agree with the view which has been taken in Vinay Kumar Pal (supra), the Division Bench referred the following questions for decision by the Full Bench : “(a) Once the Writ Court, in respect of same examination and in respect of same column No. 20 of the form having been left blank, had declared that such candidates are also to be considered for the post of ‘Designated Officer’, is it open to the Commission to have two sets of norms, one for the candidates who approached the High Court and the other for the candidates who did not approach the High Court ? Why such judgments be not read as judgments in rem ? (b) Can a writ petition be dismissed on the ground of latches only because the result of Preliminary Examination had been known to the petitioner, when, there had been a judgment of this Court for ignoring the blank Column No. 20, in the matter of consideration of candidature of the candidate against the post of “Designated Officer”? (c) Whether the Division Bench in the case of Vinay Kumar Pal (supra) was right in the facts of the case, in recording that there has been inordinate delay in filing the writ petition with reference to the date on which the final result was declared ?” 10. The ground which led the Division Bench to differ from the view which was taken in the decision in Vinay Kumar Pal’s case (supra) is that the result of the main examination was declared on 13 January 2015 which was two days prior to the judgment of the Court which was rendered on 15 January 2015. The ground which led the Division Bench to differ from the view which was taken in the decision in Vinay Kumar Pal’s case (supra) is that the result of the main examination was declared on 13 January 2015 which was two days prior to the judgment of the Court which was rendered on 15 January 2015. Hence, in the view of the Division Bench which has made the reference, the earlier Division Bench in Vinay Kumar Pal’s case (supra) was not justified in holding that there was a “considerable delay and laches” on the part of the petitioner there in moving the writ petition six months after the declaration of the result. 11. On this aspect of the matter, we find a considerable degree of substance in the view which has been expressed by the Division Bench in the referring order dated 11 September 2015. 12. A bare narration of the facts would indicate that the decision in Vinay Kumar Pal’s case (supra) was rendered on 15 January 2015. The result of the main examination was declared on 13 January 2015. Hence, the Division Bench in declining to entertain the writ petition under Article 226 of the Constitution in Vinay Kumar Pal’s case (supra) appears to have proceeded inadvertently on the basis that there was a delay of six months in filing the writ proceedings after the declaration of the result. 13. That being the position, we are of the view that the decision in Vinay Kumar Pal’s case (supra) ought not to come in the way of the writ petition which has been filed by the present petitioner being decided. 14. The issue as to whether the Court while exercising its jurisdiction under Article 226 of the Constitution should decline to entertain a writ petition on the ground of unexplained delay and laches is the subject-matter of several decisions of the Supreme Court. Many of the earlier precedents on the subject have been adverted to in the judgment in Shankara Co-op. Housing Society Ltd. v. M Prabhakar and others, AIR 2011 SC 2161 . The principles which have been formulated are as follows: “53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ Court under Article 226 of the Constitution is now well-settled. Housing Society Ltd. v. M Prabhakar and others, AIR 2011 SC 2161 . The principles which have been formulated are as follows: “53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ Court under Article 226 of the Constitution is now well-settled. They are : (1) there is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay.” 15. Whether there is an unexplained delay or laches is a matter which has to be decided on the facts of each case. The principle that the Court will not entertain a petition which suffers from delay and laches is a rule of practice to guide the exercise of the discretionary jurisdiction under Article 226 of the Constitution. Among the factors which have to be borne in mind by the Court is whether as a result of a lapse of time, rights or equities have been created in favour of a third party which are liable to be displaced in the event that the petitions are entertained and relief granted. Among the factors which have to be borne in mind by the Court is whether as a result of a lapse of time, rights or equities have been created in favour of a third party which are liable to be displaced in the event that the petitions are entertained and relief granted. Whether the explanation of the petitioner is sufficient to draw an inference that there has been no indolence on his part, is a matter for the Court to decide in the facts of each case. It is for the Court to determine on the basis of all relevant circumstances whether the delay is of such a nature as to lead an inference that there has been a waiver and abandonment of the claim by a litigant. We are broadly indicating these aspects, conscious as we are that these principles have been settled by a long line of precedent. All that needs to be observed is that the Division Bench, upon the petition being taken up, would be at liberty now to deal with all aspects including the objections of the State having due regard to the facts and circumstances of the case. 16. On the reference, we answer the issue posed in regard to the decision of the Division Bench in Vinay Kumar Pal (supra) by holding that the decision proceeded inadvertently on the basis that there was a delay of six months between the declaration of the main result and the institution of the petition. The main result, as we have noted above, was declared on 13 January 2015, whereas the order of the Division Bench in Vinay Kumar Pal (supra) was rendered on 15 January 2015. The judgment in the aforesaid case will, hence, not come in the way of the Division Bench making an appropriate appraisal of the facts and circumstances of the present case. In the view which we have taken on Question-c above, it is not necessary for the Court to express any view on question-a, which relates to the applicability of the decision of the Division Bench in Ajay Pratap Singh (supra) to the facts of the case of the petitioner. The issue of laches which is referred in question-b does not require an answer by the Full Bench since it is left open to the Division Bench to take an appropriate view in the matter. The issue of laches which is referred in question-b does not require an answer by the Full Bench since it is left open to the Division Bench to take an appropriate view in the matter. In Vinay Kumar Pal (supra), the Division Bench decided to examine the matter on merits because of the finding that the petition suffered from unexplained delay and laches. Once that decision has been held to have suffered from an inadvertent error, it will cease to apply. Hence, it is for the Division Bench in the present case to take an appropriate view on all aspects of the petition, including on the question of delay which is kept open. 17. The reference is, accordingly, answered in the aforesaid terms. The petition shall now be placed before the regular bench, according to roster, for disposal in the light of the questions so answered.