High Court · 2022
Case Details
Court No. - 42 Case :- SPECIAL APPEAL DEFECTIVE No. - 127 of 2023 Appellant :- Akanksha Yadav Respondent :- State Of U.P. And 5 Others Counsel for Appellant :- Prashant Shukla,Ram Prakash Upadhyay Counsel for Respondent :- C.S.C.,Gagan Mehta,Siddharth Khare With Case :- SPECIAL APPEAL No. - 27 of 2023 Appellant :- Abhishek Kushwaha And 8 Others Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Siddharth Khare,Sr. Advocate Counsel for Respondent :- C.S.C.,Gagan Mehta,Sanjeev Singh,Shivendu Ojha With Case :- SPECIAL APPEAL No. - 28 of 2023 Appellant :- Rajesh Kumar And Another Respondent :- State of U.P. and Another Counsel for Appellant :- Siddharth Khare,Sr. Advocate Counsel for Respondent :- C.S.C.,Gagan Mehta,Prashant Shukla With Case :- SPECIAL APPEAL No. - 29 of 2023 Appellant :- Umesh Chandra Tiwari And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Siddharth Khare,Sr. Advocate Counsel for Respondent :- C.S.C.,Gagan Mehta,Seemant Singh,Shivendu Ojha With Case :- SPECIAL APPEAL No. - 60 of 2023
Legal Reasoning
17. In a similar controversy to settle the issue, this Court in Ram Naresh Singh and 26 others vs. State of U.P., 2018 (4) AWC 3521, along with companion writ petitions, relying on the decision rendered by the Hon'ble Supreme Court in Rajesh Kumar and others vs. State of Bihar and others, 2013 (4) ADJ 690 and Vikas Pratap Singh and others vs. State of Chhatisgarh, 2013 (14) SCC 494, the Court held that the selected candidates cannot be ousted from service but kept at the bottom of the rectified select list. The relevant paragraph of the report is extracted :
Arguments
Appellant :- Smt. Hemlata Saini Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Bheem Singh,Aalok Singh Counsel for Respondent :- C.S.C.,Gagan Mehta,Prathamesh Upadhyay Hon'ble Suneet Kumar,J. Hon'ble Rajendra Kumar-IV,J. 1. Counter affidavit has been filed on behalf of respondent no. 2 in Special Appeal No. 27 of 2023, is taken on record. 2. Heard Sri Ashok Khare, Sri R.K. Ojha, Sri G.K. Singh, learned Senior Counsels for the respective parties, Sri Ashok Mehta learned counsel for the Commission and learned Standing Counsel for the State. 3. The Special Appeals are being heard and decided by the common order on the consent of the parties. 4. The facts of Appeal No. 27 of 2023, is being adverted to for convenience sake. 5. The second respondent U.P. Higher Education Services Commission, Prayagraj (for short 'Commission'), issued an advertisement in the year 2021, inviting applications for the post of Assistant Professor in different subjects. The appellants appeared in the objective type examination held in two parts. The appellants qualified in written examination on the cut-off marks assigned to the respective subjects, consequently, they were invited to face interview. 6. It is clarified that objections were invited from the candidates to the answer keys published by the Commission. The Commission, thereafter, published final select list on 17 June 2022. 7. Pursuant to the select list forwarded by the Commission to the third respondent Director of Higher Education, Prayagraj, the third respondent issued placement order of each of the appellants to the institution for appointment. 8. Pursuant to the appointment orders, appellants, herein, joined their respective post. 9. It appears that a non-selected candidate for the post of Assistant Professor (Mathematics) filed a Writ Petition being Writ-A No. 14847 of 2022 (Arun Kumar vs. State of U.P. and others) for quashing the select list. On 21 September 2022, an order came to be passed by the learned Single Judge, disposing of the writ petition on the statement of the counsel for the respondent Commission, that if the contention advanced by the petitioner, therein, was found to be correct the mistake, if any, would be undertaken upon re-evaluation of the objective type of answer- sheets (OMR). It appears that Commission pursuant to the undertaking given by the learned counsel, re-evaluated the result and as such notified 18 additional candidates listed for interview. Thereafter, Commission, after interview, short listed the candidates, published a revised select list dated 21.12.2022, whereby, the appellants came to be excluded from the select list. 10. The revised select list, it is urged was an eminent threat to the services of the appellants, though, the third respondent Director of Higher Education, Prayagraj, has not acted upon on the select list. 11. It is in the aforenoted backdrop, the intra court appeals, have been filed assailing the order dated 21 September 2022, passed by the learned Single Judge without notice and opportunity to the selected candidates. In other words, it is submitted that vested right of the appellants to the post was deprived without hearing them. 12. It is not in dispute that before re-evaluation of marks by the Commission, the appellants, herein, came to be appointed by the third respondent. The appointment of the appellants, thereafter, followed as per the select list forwarded by the Commission. Upon re-evaluation being undertaken by the Commission, thereafter, 18 selected / appointed candidates have been non suited, but are working on the strength of an interim order. In other words, appellants came to be appointed on the earlier select list declared by the Commission. 13. It is admitted by the learned counsel for the State, as well as, the Commission that there was some discrepancies / mistake on part of the examining Agency, engaged by the Commission, for the purposes of evaluation and tabulation of the marks. 14. Learned Standing Counsel, on specific query, admits that there are vacancies of Assistant Professors in the following subjects i.e. Mathematics, Sanskrit, Physical Education, Economics and Home Science. 15. The entire controversy surfaced due to the mistake / omission committed by the Commission. On the subsequent recommendation made by the Commission appointment letters came to be issued to 18 candidates in the following manner : Mathematics -7, Sanskrit-5, Physical Education-2, Economics-3 and Home Science-1, total 18 candidates. However, the subsequently, the appointed candidates were unable to join the post as the earlier appointed candidates were working on the strength of interim orders. 16. We have gone through the tabulation of the re-evaluation with the assistance of learned counsel for the parties and find that the discrepancy pertains to one wrong question involving two marks. In the circumstances, it cannot be said that the candidates who have been appointed and subsequently are sought to be ousted on re-evaluation, are not meritorious, but have been non suited on the basis of alleged wrong computerised marks. It is not in dispute that Commission / State respondent had not issued any show cause notice to the affected candidates / appellants. The appellants dispute the correctness of the tabulation, rather, allege it is the outcome of manipulation. Commission suo-moto acted to re- evaluate the marks after making the recommendation of the appellants. It is not a case of fraud or misrepresentation on the part of the non-suited appellants.
Decision
"97. The writ petitioners therefore cannot be ousted from service altogether and shall be kept at the bottom of the rectified Select List issued for Advertisement No. 1 of 2010, and also any other Select List on the basis of any later advertisement issued by the Selection Board, selection on the basis of which has been completed and recommendations made for appointment. The petitioners shall be offered fresh appointments on the posts of Hindi Teachers L.T. Grade in Institution, which have determined such vacancies in direct recruitment quota and intimated them to the District Inspector of School concerned and further notified to the Selection Board, but on which vacancies selection has not been advertised or finalized by the Selection Board till date. 98. If need be then supernumerary posts be created for the petitioners as directed by the Hon'ble Supreme Court in Civil Appeal No. 367 of 2017 for similarly situated appellants therein, who were ousted as a consequence of rectification of result of selection held for Trained Graduate Grade Teachers in Advertisement No. 1 of 2009 of the Selection Board. 99. The private respondents shall be issued appointment letters forthwith, their dates of appointment relating back to date of first appointment of the writ petitioners herein, and although they will not be entitled to back wages for the period they have not worked, they shall be entitled to seniority and consequential benefits arising out of continuity in service from the date of such back- dated appointment. The entire excise shall be completed by the Government within a maximum period of three months." 18. Accordingly, the appeals are allowed by passing the following orders :- (i) The appellants already appointed, shall continue on their post and paid their salary on month to month basis. (ii) The petitioner in Special Appeal No. 127 of 2023 (Akansha Yadav) shall be appointed and paid salary. (iii) The candidates subsequently selected (18 in number) shall be given appointment against the existing vacancies, advertised or otherwise, in the respective subjects within a period of four weeks from the date of service of this order. (iii) All the selected candidates, including, the subsequent selected candidates shall be placed in the select list as per their respective merit. (iv) No cost. Order Date :- 12.4.2023 Manoj Digitally signed by :- MANOJ KUMAR YADAV High Court of Judicature at Allahabad