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2019 DIGILAW 180 (CAL)

Basir Ahmed v. Prativa Mandal

2019-02-05

HARISH TANDON, SUBHASIS DASGUPTA

body2019
JUDGMENT : Harish Tandon, J. The solitary question involved herein is whether a non party of the proceeding can prefer an appeal against the judgment when the findings are entirely to its benefit except that such benefit should be extended to all and the sundry, in other words, whether a non party can maintain an appeal only for the purpose of extending benefit of the decision rendered by the Single Bench without being prejudicially affected thereby. 2. Before adverting to the said issue, the salient facts of the instant case are required to be adumbrated as under:- 3. A flurry of writ petitions were launched by various aspiring candidates challenging certain questions to have been wrongly translated in Bengali language and wrong answers were given in the answer key in the Teacher Eligibility Test (T.E.T), 2014 held on 11th October, 2015. The multiple choice questions were required to be answered by the aspiring candidates in OMR sheet to be darkened by the candidates for smooth, speedy and transparent evaluation of the answers by use of technology. The question paper which was originally framed in the English language was also translated in Bengali and other languages but we are primarily concerned with the Bengali translation of the English and the answer key subsequently published by the recruiting agencies. An information was furnished by the recruiting agencies on an application made under Right to Information Act, 2005 and the question paper, OMR sheet and answer key were also provided to the applicants. It was detected that certain questions in Section-I, Language I, Bengali subject and child development and pedagogy sections were incorrectly answered and some of the questions were found to have been wrongly translated in bengali language; the opinion was sought from a renowned scholar of the bengali literature as well as the relevant subject, who opined that the answer to those questions as disclosed in the answer key were incorrect. The aforesaid opinion emboldened various aspiring candidates to approach the Court by filing the writ petition not only for ascertainment by the external experts on those multiple choice O.M.R type tests and wrong key answers supplied by the paper setters, but also for re-assessment and or revaluation of the O.M.R sheets pertaining to those wrong questions as well as answers thereto. 4. 4. In course of an argument the Learned Advocate appearing for the Board fairly submits that the matter may be referred to the vice chancellor of the Biswa Bharati University to appoint an expert in the relevant subject for examining the correctness of the translated questions and the key answers assigned to it. Pursuant to the same the vice chancellor of the said university appointed the expert and sought for their opinion on such issue and the same was placed before the Single Bench. The reports of the experts are succinctly jotted down in the impugned order and ultimately the Single Bench held :- "Considering the above discussions and after perusing the expert reports I direct the Secretary, West Bengal Board of Primary Education to award marks to the petitioner/petitioners who attempted the wrong question/options in the key answers of JGB question booklet series. After awarding marks if it is found that the petitioner / petitioners is/ are otherwise eligible then the Secretary is further directed to take steps to give appointment to the petitioner/ petitioners in accordance with law against the available vacant post of Assistant Teacher/Teachers." 5. The petitioner is not aggrieved by the findings recorded by the Single Bench as in his opinion it inures to his benefit as well, but the center of argument is hovering around the further directions passed in the impugned order to the extent that the benefit of such findings/judgment is restricted to the writ petitioners, whose writ petitions were disposed of by the impugned order. 6. The first and foremost point of attack in the instant appeal is that the findings / judgments must inure to the benefit of all the aspiring candidates, who participated in the said examination and should not have been restricted to the writ petitioners who approached the Court and their writ petitions were disposed of by the common jugdment. 7. Mr. Bandopadhyay, the Learned Senior Advocate appearing for the appellant submits that the Single Bench should not have restricted the benefit of the jugdment to the writ petitioners therein even after declaring that some of the questions were wrongly translated in bengali and wrong answer were assigned to it in the answer key. According to Mr. 7. Mr. Bandopadhyay, the Learned Senior Advocate appearing for the appellant submits that the Single Bench should not have restricted the benefit of the jugdment to the writ petitioners therein even after declaring that some of the questions were wrongly translated in bengali and wrong answer were assigned to it in the answer key. According to Mr. Bandopadhyay once a declaration of such nature is made such declaration is judgment in rem and not in personam and, therefore, the appellants who though not joined in the aforesaid writ petition, nor filed an independent writ petition can maintain an appeal after seeking leave to appeal which in fact has been done in the instant case so that the benefit of the findings/ judgment may be extended to all aspiring candidates including the appellant herein as held by the Supreme Court in case of B. Prabhakar Rao and others -Vs- State of Andhra Pradesh and Others, (1986) AIR SC 210. By placing reliance upon another judgment of the Apex Court rendered in case of Richal and Others -Vs- Rajasthan Public Service Commission and others, (2018) 8 SCC 81 , Mr. Bandopadhyay would submit that the moment the result has been revised, the benefit should be given to all the candidates with the caveat that those who have already been appointed by the recruiting agency should not be affected thereby. Mr. Bandopadhyay would further submit that the moment it is found that model answer key was erroneous and directed the correct answers to be accepted, the similarly circumstanced person should be extended the benefit to maintain the purity of the selection process and to eradicate undeserved advantage over the others and placed reliance upon the judgment of the Apex Court delivered in case of Rajesh Kumar and others Vs. State of Bihar and Others, (2013) 4 SCC 690 . In support of the contention that the similarly circumstanced person should also be extended the identical benefit which is extended to the other similarly place person, Mr. Bandopadhyay relied upon an anther jugdment of the Supreme Court in case of K.C. Sharma and others Vs. Union of India and others, (1997) 6 SCC 721 . Mr. In support of the contention that the similarly circumstanced person should also be extended the identical benefit which is extended to the other similarly place person, Mr. Bandopadhyay relied upon an anther jugdment of the Supreme Court in case of K.C. Sharma and others Vs. Union of India and others, (1997) 6 SCC 721 . Mr. Bandopadhyay arduously submits that denying the benefit to identically situated persons simply because they did not approach the Court and extending benefit to the set of persons, who have been granted relief by the Court, would offend Article 14 of the Constitution of India as the statutory authorities cannot discriminate the similarly circumstanced persons and placed reliance upon a judgment of the Supreme Court in case of State of Uttar Pradesh and others Vs. Arvind Kumar Srivastava and others, (2015) 1 SCC 347 . Mr. Bandopadhayay vehemently submits that the said order instrumentally cannot treat the identically placed persons differently by implementing the impugned order providing benefit to some of the aspiring candidates and denying such benefit to the others which has been depricated by the Apex Court in Purnendu Mukhopadhyay and others Vs. V.K. Kapoor and another, (2007) 6 SLR 740 . According to Mr. Bandopadhyay even if the appellants have not filed the independent writ petition seeking the identical relief, yet can maintain the appeal against the impugned order challenging the portion of the order by which the implementation of the impugned jugdment was restricted to the writ petitioners. Mr. Bandopadhayay would submit that the moment the Court held that there was a mistake in bengali translations of some of the questions and wrong answer given to those in the answer key, such declaration is made in rem and, therefore, cannot be restricted to the hand full of persons, who probably approached the Court. Mr. Bandopadhyay ardently submits that denial of the benefit causes prejudice to the appellant and, therefore, it comes under the ambit of "aggrieved persons" and there is no impediment in maintaining the appeal challenging the portion of the judgment by which the declaration made therein is restricted to the writ petitioners therein. Mr. Mr. Bandopadhyay ardently submits that denial of the benefit causes prejudice to the appellant and, therefore, it comes under the ambit of "aggrieved persons" and there is no impediment in maintaining the appeal challenging the portion of the judgment by which the declaration made therein is restricted to the writ petitioners therein. Mr. Bandopadhyay succinctly submits that once the mandamus is issued by the Court on the state or its instrumentality, it is always treated to be in rem and, therefore, leave to appeal should be granted to a non-party to the aforesaid writ petitions in order to insure the benefit of the said mandamus to them as well. 8. Per contra Mr. Sengupta, the Learned Senior Advocate appearing for the Board submits that no leave to appeal should be granted to the appellant only for the purpose of extending the benefit of the decisions/judgment; more particularly, in absence of any element of prejudice. Mr. Sengupta further submits that the leave to appeal can only be granted provided the appellant satisfies the Court that the impugned judgment has prejudicially affected his right, to be precise legal right, despite being not made a party to the proceedings. Mr. Sengupta relies upon the judgment of the Division Bench of the Bombay High Court in case of The Province of Bombay -Vs- Western India Automobile Association and others, (1949) AIR Bombay 141 to support his contention that unless a person demonstrates that his interest is adversarily effected, no leave can be granted for simple reason that the benefit of the judgment should also be extended to him. Mr. Sengupta strenuously submits that one of the principle for grant of leave to appeal to the non-party to the proceeding is whether the findings recorded in the said judgment would operate as res judicata against him, as held by the Madras Court in case of Srimathi K. Ponnalagu Ammani Vs The State of Madras, (1953) AIR Madras 485. Apart from the same, according to Mr. Sengupta, the first and foremost thing required to be proved by such non-party while seeking leave to appeal is that the judgment widely affects his right and he has no other remedy available to him. The emphasis is made on the another Division Bench judgment in case of Executive Officer Vs. Apart from the same, according to Mr. Sengupta, the first and foremost thing required to be proved by such non-party while seeking leave to appeal is that the judgment widely affects his right and he has no other remedy available to him. The emphasis is made on the another Division Bench judgment in case of Executive Officer Vs. Raghavan Pillai, (1961) AIR Kerala 114 for the proposition that the non-party seeking leave to apply has to satisfy the Court that he is bound by the decree and such decree prejudicially affects his interest and have no other remedy than to challenge the said order in an appeal Mr. Sengupta further places reliance upon a Full Bench decision of the Andhra Pradesh High Court in case of Dimmiti Pullayya and others Vs. Andabolu Nagabhushanam and others, (1962) AIR A.P. 140 where the identical principles have been reiterated and applied. Lastly Mr. Sengupta relies upon the Division judgment of our High Court inn case of United Commercial Bank Vs. Hanuman Synthetics Ltd. and others, (1985) AIR Calcutta 96 wherein the Division Bench accepted the view expressed by the Bombay High Court in case of Western India Automobile Association (supra) provided there is no other remedy available than to file an appeal against the impugned order. Mr. Sengupta thus submits that the appellant is neither a person prejudicially affected by the said judgment, nor can be said to be a remediless, as he can ventilate his grievance by instituting a fresh writ petition. He, therefore, submits that the leave to appeal should not be granted simplicitor on an assertion that the single bench ought not to have restricted the benefit of the said jugdment to the writ petitioners therein, when the findings made in the said judgment do not affect the rights of the appellants. Mr. Sengupta lastly submits that the leave to appeal should be rejected as the appellant has failed to satisfy the tests as laid down in the aforesaid judgments. 9. On the conspectus of the aforesaid submissions this Court hasten to say that ordinarily right to appeal is vested upon a party to the proceedings, but equally it is well established that non-party to the proceeding can maintain an appeal provided the leave to appeal is first obtained as either section 96 nor order 41 Rule 1 of the Code of Civil Procedure provides, who can appeal. Clause 15 of the Letters Patent also does not contain the provision relating to the question who can appeal. Section 96 of the Code of Civil Procedure and clause 15 of the Letters Patent provide a right of appeal against the judgment and by no step of imagination it can be conceived that the judgment is not amenable, if challenged before the Appellate Court. Ordinarily a party to a proceeding is vested with statutory right to appeal, but such right has been extended to a non-party as well, if he complains that such judgment affects his legal right. 10. In Securities Insurance Company, (1894) 2 Ch 410 Lindley Law Journal at Page 413, it is observed:- "11. Section 96 of the Civil P.C. and O. 43, R. 1 have enumerated the decrees and orders against which appeal will lie. But the question in this case is whether a person who is seriously prejudiced by an order can appeal against that order even though he was not made a party to the proceeding in which the order was passed. The Code of Civil Procedure does not contain any bar. In the case of Securities Insurance Company, (1894) 2 Ch 410 Lindley L.J. at page 413 observed" "I understand the practice to be perfectly well settled that a person who is a party can appeal (of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave. It does not require much to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it; but without leave he is not entitled to appeal." 11. It does not require much to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it; but without leave he is not entitled to appeal." 11. The aforesaid observation has been accepted , applied and followed by the Division Bench of the High Court in case of West India Automobile Association (supra) wherein Bhagawathi, J held " a person who is not a party to a suit or a proceeding has no right to appeal against the decision and this is the position where a person who is not such party is not aggrieved by a decision and wants to appeal against it, he can only ask for leave to appeal from the Appellate Court before he can be allowed to file an appeal. There is no right to appeal vested in him by any provision of Civil Procedure Code or by any other provision of law. The only remedy open to him, if his interest are adversely affected or if he is aggrieved by a decision of the Court, is to approach the Appellate Court and ask for leave to appeal which the Appellate Court would grant in proper cases" 12. Chagla CJ, while concurring with the aforementioned quoted observations also held :- "But it is recognised that a person who is not a party to the suit may prefer an appeal if he is affected by the order of the trial Court, provided he obtains leave from the Court of Appeal. Therefore, whereas in the case of a party to a suit he has a right of appeal, in the case of a person not a party to the suit who is affected by the order he has no right, but the Court of Appeal may in its discretion allow him to prefer an appeal. It is difficult to understand why the Province of Western Bombay, which is vitally affected by the decision of Mr. Justice Coyajee did not think fit to itself made a party to the petition. Not only it did not do so, but it preferred an appeal without obtaining any leave or any direction from the Court of Appeal, and there can be no doubt that Mr. Justice Coyajee did not think fit to itself made a party to the petition. Not only it did not do so, but it preferred an appeal without obtaining any leave or any direction from the Court of Appeal, and there can be no doubt that Mr. Vimadalal's contention is sound that as the record stands the appeal preferred by the Province of Bombay is not competent. It is an appeal preferred by a person who was not a party to the proceedings before Mr. Justice Coyajee and who has not been given any leave by the Court of Appeal to prefer this appeal. It was open to the Province of Bombay to come before us before filing this appeal and get the necessary leave and directions, but that, again, the Province of Bombay did not choose to do. But I do not think it would be right to deprive the Province of Bombay of the right to challenge Mr. Justice Coyajee's decision merely on this technical ground. Technicalities should never be permitted to override substantial justice, and we think that the Province of Bombay should be heard provided it pays all the costs of this appeal up to date. We would, therefore, give leave to the Province of Bombay to maintain this appeal although it was not a party to the proceedings before Mr. Justice Coyajee." 13. In case of Raghavan Pillai (supra) the Division Bench of the Kerala High Court observed that there is a trend of the judicial opinion in English courts that any of the parties to an action or matter and any person served with the notice of the judgment and order may appeal but a person who might properly have been a party may have obtained a leave to appeal. The Division Bench held that such words are just an equitable one and may be applied and adopted in our judicial system as well. It is further observed therein that the provisions as regards an appeal in England are not materially different from those contained in the Code of Civil Procedure or Letters Patent and ultimately it is held :- "The opinion expressed in Bombay case referred to above, Bombay Province v. W.I. Automobile Association, (1949) AIR Bombay 141) is also to the same effect. Thus the rule seems to be well -settled that while a party to a suit against whom the judgment is given can appeal against it as of right, a person who is not on the party array but who is bound by the decree or whose interests are prejudicially affected by it may appeal with the leave of the appellate court." 14. The Full Bench of the Andhra Pradesh High Court took note of the practice prevailed in the English Court from Indian practice since 1961. The reference where-of was made to Halsbury's Laws of England, where the leave to appeal was denied to a person even if he may have some remote or indirect way of being prejudicially affected by the decree or judgment, but should be granted to a person though not made parties to the proceedings, if he is bound by the decree or judgment and would be precluded from attacking its correctness in other proceedings. The Full Bench of the Andhra Pradesh High Court took note of the provisions contained in the Code of Civil Procedure pertaining to class action and held that such person would be bound by the judgment and/or decree being an eo nomine by virtue of explanation VI to section 11 of the Code in such appeal even there is no difficulty in maintaining an appeal when seeking any leave from the Court that does not stand as obstacle and/or hurdle in maintaining an appeal with the leave of the Court having obtained first in this words:- "What emerges from the above discussion is that if a person is deemed to be a party under Order 1, rule 8, Civil Procedure Code, and for purposes of section 11, Explanation VI Civil Procedure Code, leave to appeal could be granted to him by the appellate Court in an appropriate case, if the decision rendered in the proceedings would adversely affect him. It is not in every case where a person may be remotely or indirectly affected that leave should be granted but it should be granted to persons who though not eo nomine parties would be bound by the decree or judgment in the proceeding and who could not by reason of Explanation VI to Section 11, Civil Procedure Code agitate the same question in separate proceedings. It is needless to say that it would be illogical to hold that while a person is deemed to be a party to a proceeding and would be bound by a judgment rendered against him in a representative capacity, he would not be permitted to file an appeal against the decree if the person who is actually a party to the proceedings does not choose to carry the matter in appeal against that decree or order. We hold that there is no obstacle created either by the provisions of the Civil Procedure Code or by any practice obtaining either in India or in England in the way of granting leave to file an appeal to persons who are not eo nomine parties to the proceeding but who at the same time would be bound by the judgment or decree of the Court granted in such proceeding." 15. The Division Bench of our High Court in case of United Commercial Bank (supra) held :- "14. In the case of Smt. Jatan Kanwar Golcha v. Golcha Properties Private Ltd. (In Liquidation), (1971) AIR SC 374 the question was whether the appellant was debarred from filing an appeal because he was not made a party to a proceeding under the Companies Act. The High Court was of the view that the only remedy of the appellant was by way of a suit after obtaining leave of the Company Judge under S. 446 of the Act. The Supreme Court held at p. 376 of the report :- "In our opinion apart from Rule 139 to which reference has been made by the High Court, the Official Liquidator as well as the learned Company Judge were bound by the rules of natural justice to issue a notice to the appellant and hear her before making the order appealed against. If there was default on their part in not following the correct procedure it is wholly incomprehensible how the appellant could be deprived of her right to get her grievance redressed by filling an appeal against the order which had been made in her absence and without her knowledge. It would be a travesty of justice if a party is driven to file a suit which would involve long and cumber-some procedure when an order has been made directly affecting that party and redress can be had by filling an appeal which is permitted by law. It would be a travesty of justice if a party is driven to file a suit which would involve long and cumber-some procedure when an order has been made directly affecting that party and redress can be had by filling an appeal which is permitted by law. It is well settled that a person who is not a party to the suit may prefer an appeal with the leave should be granted if he would be prejudicially affected by the judgment." 15. This case was sought to be distinguished on the ground that this was a decision under the Companies Act and the law laid down could not be the general law. We are unable to accept this contention. The Supreme Court has not come to the decision on the basis of any specific provision of the Companies Act; but the Supreme Court has referred to the well settled law of the land. 16. We were referred to a large number of decisions of various High Courts on this point but it is not necessary to discuss those judgments in view of the clear enunciation of law by the Supreme Court in the case of Jatan Kumar Golcha, (1971) AIR SC 374. In our opinion, the appellant was entitled to prefer this appeal with leave of the Appeal Court. The appeal cannot be dismissed in limine as not maintainable." 16. What emerges from the aforesaid decision is that ordinarily right of appeal is vested upon a party to the proceeding but there is no express bar in the Code of Civil Procedure or Letters Patent that the appeal cannot be maintained by a non-party provided he is bound by the judgment or decree or prejudicially affected thereby . In such case the appeal can be maintained after obtaining leave from the Appellate Court. Apart from the same, such non-party has to satisfy the Court that the said judgment/ decree shall operate as res judicata and he has no other remedy than by way of an appeal to challenge the same. A distinction has to be borne in mind that every finding though made against him may not always constitute res judicata. Apart from the same, such non-party has to satisfy the Court that the said judgment/ decree shall operate as res judicata and he has no other remedy than by way of an appeal to challenge the same. A distinction has to be borne in mind that every finding though made against him may not always constitute res judicata. The principle of res judicata cannot be extended against a person in relation to an adverse finding made by the Court when he ultimately emerged successful there-from precisely for such reasons, order 41 Rule 22 of the Code of Civil Procedure was introduced so that in the event an appeal is filed by the unsuccessful litigant, the adverse finding made therein can be attacked there under. 17. The contention of Mr. Bandopadhyay that though the findings recorded in the impugned jugdment is not prejudicially affecting the right of the appellant but the Court ought not to have restricted the benefit of the said finding to the writ petitioners therein. The reliance was placed by Mr. Bandopadhyay on a Constitution Bench decision of the Apex Court in case of P. Bhaskar Rao & Ors for the proposition that even if some individually affected parties are not impleaded in the proceeding, their interest being identical, the benefit should also be extended to him . In the said decision the challenge was made to a government notification by which the age of superannuation of the employees of the Government of AP was reduced from 58 to 55 years. The challenge was basically founded on the classification within the class and also on the ground of reasonableness and arbitrariness. 18. The Apex Court noticed that several persons have already attained superannuation and some may be placed in a disadvantageous situations, if the interference is not made. However in exercise of the power under Article 142 of the Constitution of India, the Apex Court disposed of the said case granting relief to the various category of the employees; while doing so the Apex Court observed that even if some persons are not impleaded as party in the proceeding, but their interest being identical may be treated to have been sufficiently and well represented in these words :- "We may now refer to two arguments which were mentioned in passing but were not pursued. The first was that a writ petition similar to Writ Petitions 3420-3426 of 1983 etc. had been filed earlier and had been dismissed in limine by a Bench of this Court. We do not see how the dismissal in limine of such a writ petition can possibly bar the present writ petitions. So the objection such as it was, was not pursued further. So also the second objection which related to the non-joinder of all affected parties to the litigation. We are quite satisfied that even if some individual affected parties have not been impleaded before us, their interests are identical with those and have been sufficiently and well represented. Further, the relief claimed in Writ Petitions 3420-3426 of 1983 etc. is of a general nature and claimed against the State and no particular relief is claimed against any individual party. We do not think that the mere failure to implead all affected parties is a bar to the maintainability of the present petitions in the special circumstances of these cases where the actions are really between two "warring groups." 19. In case of K.C. Sharma (supra) cited by Mr. Bandopadhyay we failed to find any ratio laid down therein for the proposition that the leave to appeal should be granted on the identical circumstances. What has been held that when the notification which was given a retrospective effect was found invalid being violative of Article 14 and 16 of the Constitution, and a representation was filed before the Administration based upon the said decision cannot be rejected and or dismissed as the appellant can be said to be vitally affected by the impugned notification. It is seen from the said judgment that there is no embargo on the similarly circumstanced person to maintain an independent proceedings claiming benefit of the said judgment, but certainly cannot be a pointer to an issue that an appeal is still maintainable for such purposes. 20. In case of Purnendu Mukhopadhyay (supra), the Apex Court held that the state cannot treat employees, similarly circumstanced, differently and implement order in relation to others. 20. In case of Purnendu Mukhopadhyay (supra), the Apex Court held that the state cannot treat employees, similarly circumstanced, differently and implement order in relation to others. It would be profitable to quote the relevant observation from para20 of the said report which runs thus:- "In a case of this nature, in particular having regard to the fact that the respondents have granted similar benefits to others, we fail to understand as to how the decision of this Court in J.S. Parihar (supra) and Mittanlal (supra) could be applicable. The State cannot treat employees similarly situated differently. It cannot implement the orders in relation to one and refuse to do so in relation to others. It is also not a case lime J.S. Parihar (supra) where while implementing the orders, a particular stand has been taken by the employer giving rise to a subsequent cause of action. It is also not a case where the order of this Court is capable to two interpretations." 21. The aforesaid judgment in our opinion is not applicable to the instant case having not answered the point involved herein. The sole question involved in the instant matter is whether the non-party can maintain an appeal to claim the benefit of the said judgment after seeking leave from the Court. It is one thing to say that the person is prejudicially affected by a judgment or his right has been foreclosed or the findings would operate as res judicata against him, but it is totally different when he seeks the benefit of the said judgment. In the latter case it is still open to the person to approach the Government to be treated similarly being a person standing on the same pedestal and if such remedy is available the Court should not grant leave to appeal. It has also been held in case of Rajesh Kumar (supra) that the Court in a deserving case can mould the relief not only to maintain the purity of selection process, but also to ensure that no candidate can earn an advantage over others by application of erroneous answer key. 22. Even we do not find any answer to the moot question as stated above in a decision of the Apex Court in case of Arvind Kumar Srivastava (supra). 22. Even we do not find any answer to the moot question as stated above in a decision of the Apex Court in case of Arvind Kumar Srivastava (supra). The question involved in the said report was whether the benefit can be extended to a similarly circumstanced person, who never approached the Court seeking a relief being a fence sitters. To answer the aforesaid question the Apex Court held :- "22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed as under. 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. 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. Sharmav. 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. 23. Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated 22-6-1987. The respondents before us did not challenge these cancellation orders till the year 1996 i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only was there unexplained delay and laches in filing the claim petition after a period of 9 years, it would be totally unjust to direct the appellants to give them appointment as of today i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above." 23. Last but not the least the judgment rendered in Richal (supra) cited by Mr. Last but not the least the judgment rendered in Richal (supra) cited by Mr. Bandopadhyay was confined to the challenge made to key answer given to certain questions to be erroneous and incorrect .Spate of litigations were made before the High Court and the Rajasthan Public Service Commission later on revised the answer key and published the same yet the dispute remained in the Court that the answers to some of the questions given in the revised answer key is still incorrect and wrong. Several intervening applications were made before the Supreme Court when the matter ultimately reached and it was a consistent stand of the commission that all candidates shall be given benefit by redistribution of marks in accordance with the number of the correct answer which they have given and the questions to which the wrong answers were given in the answer key shall be treated to have been deleted. 24. In the backdrop of the above, the Apex Court held "In the affidavit filed by the Commission it is mentioned that the result has been revised of only 311 appellants who are before this Court. We are of the view that key answers having been corrected, merit of all the candidates except those who have already been selected needs to the redetermined. In our order dated 16-1-2018 if is mentioned that this exercise shall not affect those who have already been selected. We, thus, are of the view that the Commission should revise the entire result of all the candidates except those who have been selected on the basis of the report of the Expert Committee and publish revised result of all the candidates. When the key answers are correct of the candidates who appeared in the examination, they are entitled for revision of their result, since, fault does not lie with the candidates but lies with the examination body. It shall not be equitable to not extend the benefit to those candidates who have not come to the Court being satisfied with the steps taken by the Commission and its earlier Expert Committee which was given the task of revising the key answers." 25. It shall not be equitable to not extend the benefit to those candidates who have not come to the Court being satisfied with the steps taken by the Commission and its earlier Expert Committee which was given the task of revising the key answers." 25. There is no quarrel to the proposition of law as enunciated in the aforesaid report that once a answer key contains wrong answer to a particular question, the benefit should not be restricted to the persons who approached the Court but should be extended to all the candidates as any infraction would amount to violation of Article 14 and 16 of the Constitution. 26. There cannot be any quarrel to the aforesaid proposition but still the moot question remains unanswered whether the candidates who were not impleaded as a party in the writ petition can maintain an appeal by seeking leave for the purpose of a benefit of the impugned judgment. Neither the Board nor the state have taken any decision that the benefit of the said judgment shall not be extended to all participating candidates. It is within the domain of the Board to take a decision keeping in mind the provisions of Article 14 and 16 of the Constitution. Reverting back to the core issue, neither the findings in the impugned judgment prejudicially affected the right of the appellant, nor took away any such right. The findings are not res judicata as it does not affect the rights of the appellant though it may operate against the Board and/or the respondents to the said writ petitions. The respondents have not challenged the said order and it can be presumed that they have accepted the said impugned order. In the event the petitioners are denied the benefit, it is open to him to challenge the said decision in a validly constituted proceedings, and leave to appeal cannot be granted merely on presumption that the State or the statutory authority may deny such benefit to them. 27. We do not find that it is a fit case to grant leave to appeal. The application is thus dismissed. However, the dismissal of an application seeking leave to appeal shall not operate as res judicata in a subsequent proceeding, if taken out by the appellants before the Court consequent upon the dismissal of the application seeking leave to appeal. We do not find that it is a fit case to grant leave to appeal. The application is thus dismissed. However, the dismissal of an application seeking leave to appeal shall not operate as res judicata in a subsequent proceeding, if taken out by the appellants before the Court consequent upon the dismissal of the application seeking leave to appeal. All connected applications have become infructuous and are accordingly dismissed. 28. Since the leave to appeal has been denied, the appeal cannot be shown pending in the docket of the Court and the same shall be treated to have been dismissed. No order as to costs. I agree- Subhasis Dasgupta, J.