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JITENDRA PAL TOMAR versus STATE OF U.P. THRU. AGRICULTURE & EDUCATION SERETRIATE & ORS

High Court of Judicature at Allahabad

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Jitendra Pal Tomar v. State Of U.P. Thru. Agriculture & Education Seretriate & Ors - WRIT - A No. 10120 of 2004 [2005] RD-AH 1326 (13 May 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 10120  OF 2004

Jitendra Pal Tomar -------------    Petitioner              

    Versus.

State of Uttar Pradesh & ors.          -------------  Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble D.P. Gupta, J.

(By Hon'ble Dr. B.S.Chauhan, J.)

This writ petition has been filed for issuing direction to respondent nos. 3 and 4 to issue appointment letter to the petitioner appointing him as an Assistant Professor/Junior Agronomist in Chandra Shekhar Azad University of Agriculture and Technology, Kanpur Nagar, Kanpur in pursuance of the advertisement issued on 29.10.1992

Facts and circumstances giving rise to this case are that the respondent University issued an Advertisement No. 1/92 on 29.10.1992. In response of the same, a large number of candidates had made applications and after completing the selection process, the select list was prepared on 21.1.1993 (Annex. 3). Petitioner's name appeared at sl. no. 2 in the select list of the selected candidates. The State Government issued an order dated 30th January, 1993 (Annex. 4), imposing complete restriction on appointments in the respondent University. Thus, no person could be appointed in any subject.

One Shri Akhilesh Mishra, whose name is at sl. no. 7 in the select list, filed Writ Petition No. 4239 (S/S) of 1993 and this Court (Lucknow Bench) issued an interim direction vide order dated 21.5.1993 to issue him the appointment letter (Annex. 6), and in pursuance of which, he was permitted to join the University and he continued on the post.

One Vishwajeet Singh who had been selected in some other discipline in the same selection process, also filed Writ Petition No. 7881 (S/S) of 1993 and also obtained the interim order, and in pursuance of the same, he was permitted to join the University.

One Shri Naushad Khan whose name appeared at sl. no. 8 in the said select list also filed Writ Petition No. 29149 of 1993 and obtained an interim order and in pursuance of the same, he was allowed to join the services.

Several persons whose names appeared in the select list, including one Praveen Kumar Singh, who stood at sl. no. 1 in the merit list, and was over and above the present petitioner, neither approached the Court nor he was allowed to join the University.

The ban was lifted by the Government. However, the matter was re-considered by the competent authority, i.e., Board of Management of respondent University in its resolution dated 14th September, 1993, resolving to abandon the selection process and initiate the fresh selection process. Subsequently, Advertisement No. 1/94 was issued which could not be carried out, and a fresh Advertisement No. 1/96 was issued. However, in view of the continuation of the services of three persons under the interim order of the Court, a subsequent order was passed by the Board in exercise of its power under Section 23 of the U.P. Agricultural University Act, issuing appointment letters to the said persons. Regular appointments had been made to them on 14.1.2001 and 29.10.2002, and also in pursuance of the order dated 20.10.1999, passed by the Chancellor. However, even at that stage, no  person other than the said three candidates who had approached this Court and had been working continuously under the interim order of this Court had been offered the appointments. Though certain observations were made by the Chancellor to proceed with the selection process which culminated in preparation of the select list dated 21.1.1993, petitioner submitted a representation at the first time before the respondent authorities on 1st February, 2003 submitting that persons who stood below him in the merit list have been offered the appointments. As no action could be taken on his representation, he filed Writ Petition No. 6899 of 2003 which was disposed of by this Court vide order dated 10.2.2003 issuing directions to the respondent to consider and decide the representation filed by the petitioner. As the same was not complied with, petitioner preferred the Contempt Petition No. 1795 of 2003, and in pursuance of the order passed by this Court in contempt matter, the authorities considered the case of the petitioner and rejected his claim by the impugned order dated 8.8.2003 (Annex. 17). Hence this petition.

Shri P.C. Srivastava, learned counsel appearing for the petitioner assisted with Shri S.K. Mishra, Advocate, has raised a large number of issues and has placed a very heavy reliance upon the order passed by the learned Chancellor dated 20.10.1999, wherein certain observations have been made to make appointments from the select list prepared on 20.1.1993 and it is further submitted that the persons below him in the merit list had been offered appointments, he could not be given a hostile treatment singling him out. Thus, he is entitled for the appointment in pursuance of the said select list dated 21.1.1993.

On the contrary, Dr. R.G. Padia, learned counsel appearing for the respondent University has vehemently opposed the petition contending that the order passed by the Chancellor could not be given effect to contending that the petitioner never made a representation before the learned Chancellor; it has been made by one Shri Vishwa Jeet Singh in a different discipline; and therefore, the petitioner cannot derive any benefit from that.

More so, that selection has been abandoned and subsequently, selections have been made in pursuance of Advertisement No. 1/96, giving appointments to 7 persons, the selection process which started in pursuance of Advertisement dated 29.10.1992 stood superseded, petitioner for the first time agitated the issue by making the representation on 1st February, 2003, i.e., after expiry of a decade of the preparation of the select list, no selection list can be held to be immortal; it has a life; petitioner had been in a deep slumber for a period of 10 years, and merely because some diligent persons had approached this court and obtained interim order in their favour, he cannot get any benefit of the same, claiming parity with them. Even the persons over and above in the select list Praveen Kumar Singh, had not been offered the appointment. The three persons, two of them are from the same select list and petitioner had been offered appointment because of their continuous employment under the interim order of this Court since 1993 in view of the provisions of Section 23 of the Act.

More so, Article 14 does not envisage a negative equality and the respondent authorities are not bound to perpetuate an illegality. Even if the appointments had been offered to said three persons wrongly, petitioner never raised a finger against the Advertisement No. 1/94, and it stood superseded by Advertisement No. 1/96 and he remained a silent spectator to the said advertisements and the vacancies had been filled up and the appointments had been offered to seven persons, he could not claim any relief at such a belated stage, and petition is liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.

Admittedly, petitioner is guilty of delay and laches. He raised for the first time issue after expiry of ten years from the date of preparation of the select list and from the decision of the Board of the University abandoning the selection process, in pursuance of the Advertisement dated 29.10.1992, he could not be justified by any means filing the representation after expiry of ten years, that too without challenging the subsequent Advertisement Nos. 1/94 and 1/96 or appointments made under the later advertisements.

If certain diligent persons like Naushad Khan, Vishwa Jeet Singh and Akhilesh Mishra have approached this Court and obtained interim order and got employment in the University under the interim  order of the Court and subsequently under the provisions of Section 23 of the Act, petitioner cannot claim any parity with them.

In  State of Karnataka & ors. Vs. S.M.  Kotrayaya  & ors., (1996) 6 SCC 267, the  Hon'ble Supreme Court  rejected  the  contention  that  a petition  should be considered ignoring the delay and laches  on  the  ground  that  he  filed the petition  just after coming to know of the relief granted by  the  Court in a similar case as  the same cannot  furnish  a  proper  explanation  for delay and laches. The Court observed that such a plea is wholly unjustified and cannot furnish any ground for ignoring delay and laches.  

Same  view  has  been reiterated  by  the Hon'ble Supreme  Court in Jagdish Lal & ors.  Vs. State of  Haryana  &  ors.,  AIR  1997  SC  2366, observing as under:-  

"Suffice it to state that appellants may be  sleeping  over their rights for  long and  elected  to  wake-up when  they  had impetus  from  Veerpal Chauhan and Ajit Singh's  ratio.... desparate attempts of the  appellants  to re-do the  seniority, held by them in various cadre.... are not  ameanable to the judicial review  at this  belated  stage. The  High  Court, therefore, has rightly dismissed the writ petition on the ground of delay as well."

In M/s.  Roop Diamonds & ors.  Vs.  Union of India & ors., 1989 SC 674, the Hon'ble Supreme Court considered  a case where petitioner  wanted to get the relief on the basis of the judgment of the Supreme  Court  wherein a particular law  had been declared  ultra  vires.  The Court  rejected the petition  on  the ground of delay and  latches observing as under:-    

"There  is  one   more  ground   which basically  sets  the present case  apart. Petitioners are re-agitating claims which they  have not persued for several years. Petitioners  were  not vigilant but  were content to be dormant and close to sit on the  fence till somebody else's case came to  be  decided."

Thus, petitioner is not entitled to claim any benefit of the said judgment of this Court.

We also find no force in the submission made by Shri P.C. Srivastava that petitioner had been given a very hostile discrimination as persons below him in the merit list had been offered the appointments, though may be under the orders of this Court, for the reason that the candidate over and above the petitioner in the select list Shri Praveen Kumar Singh had not been offered the appointment, nor any candidate other than those who had obtained the order of this Court could be appointed.

Article 14 is not meant to perpetuate an illegality. Therefore, we are not bound to repeat the wrong action done by us earlier. This view stands fortified by the judgments of the Hon'ble Apex Court eg., Snehprabha Vs. State of U.P.  & ors., AIR  1996 SC 540; Secretary, Jaipur Development Authority Vs.  Daulat  Mal Jain, (1997) 1 SCC 35;  State of Haryana Vs. Ram Kumar Maan, (1997) 3 SCC  321; and M/s. Faridabad Ct. Scan Centre Vs. Director  General, Health Services & ors., (1997) 7 SCC 752.

In Finance Commissioner (Revenue) Vs. Gulab Chandra & anr., 2001 AIR SCW 4774, the Hon'ble Apex Court rejected the contention that as other similarly situated persons had been retained in service, the petitioner could not have been discharged during the period of probation observing that if no action has been taken in a similar situation against similarly situated persons, it did not confer any legal right upon the petitioner therein.

In Jalandhar Improvement Trust Vs. Sampuran Singh, AIR 1999 SC 1347 and Union of India & ors. Vs. Rakesh Kumar, 2001 AIR SCW 1458 the Hon'ble Supreme Court held that Court cannot issue direction that some mistake be perpetuated on the ground of discrimination or hardship.

Any action/order contrary to law does not confer any right upon any person for similar treatment. (Vide State of Punjab & ors. Vs. Dr. Rajeev Sarwal, (1999) 9 SCC 240; Yogesh Kumar & ors vs. Government of NCT, Delhi & ors., 2003 (3) SCC 548; and Union of India & anr. Vs. International Trading Company & anr., (2003) 5 SCC 437).

In view of the above, we are of the considered opinion that petition is liable to be dismissed only on the ground of delay and laches. As petitioner could not furnish any explanation worth the name, what to talk of the satisfactory explanation as how he could make the representation for the first time on 1st February, 2003 after expiry of ten years abandoning the selection process by the Board nor he can have any grievance on the ground of discrimination.

Petition is devoid of any merit and accordingly dismissed.

13.5.2004

AKSI


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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