LT Grade
Teacher Uttar Pradesh : PURANI BHRTEE COURT CASE MAAMLA
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 21
Case :- SPECIAL APPEAL DEFECTIVE No. - 98 of 2015
Appellant :- Yogendra Singh
Respondent :- State Of U.P. And 3 Others
Counsel for Appellant :- Siddharth Khare,Ahsok Khare
Counsel for Respondent :- C.S.C.,Seemant Singh,Shiv Nath Singh
Hon'ble Dinesh Maheshwari,J.
Hon'ble Shashi Kant,J.
(Per Dinesh Maheshwari, J.)
Heard learned counsel for the parties and perused the material placed on record.
The appellant seeks to maintain this intra court appeal against the order dated 27.03.2012 passed by the learned Single Judge of this Court in Writ A No. 14110 of 2012 that reads as under:-
"Learned counsel for U.P. Secondary Education Service Selection Board submits that a letter dated 26.03.2012 along with attending documents has been forwarded to the Head of the Mathematics Department of the Allahabad University for his expert opinion in respect of the question nos. 13, 22, 31, 40, 49 and 114. The opinion of the expert is still awaited.
Adjournment as prayed for is granted. By 17th April, 2012, the report of the expert may be brought on record before this Court. It is clarified that the Board shall take necessary action in terms of the expert's report, if any change in the evaluation is required.
List on 17th April, 2012."
The said writ petition bearing No. 14110 of 2012 remains pending and the appellant has not been joined as a party therein but seeks to maintain this appeal being a person aggrieved by the order aforesaid, as also the consequence thereof. This appeal, filed only on 28.01.2015, is reportedly beyond time by 2 years and 276 days. The appellant has filed an application (No. 29832 of 2015) seeking leave to appeal while stating his direct interest in the subject matter in the following terms:-
"1. That the applicant is the appellant in the aforesaid special appeal.
2. That the appellant was selected for appointment as Assistant Teacher in L.T. Grade for Mathematics subject in pursuance to advertisement No. 1 of 2010 and granted appointment on 13.04.2012. Since then the appellant has been continuously working.
3. That under the order impugned passed in Writ A No. 14110 of 2012 direction was issued to the U.P. Secondary Education Services Selection Board to proceed to revise the result which had already been declared. Such direction directly affects the appellant. However, the writ petition had been filed without impleading the appellant as a respondent.
4. That since the appellant is directly affected by the order impugned. It is expedient in the interest of justice that this Hon'ble Court may be pleased to grant leave to the appellant to maintain the present Special Appeal against the order dated 27.03.2012."
The appellant has also filed an application seeking condonation of delay (No. 29833 of 2015) stating reasons and circumstances for the delay and the prayer for condonation in the following terms:
"1. That the applicant is the appellant in the aforesaid special appeal.
2. That by means of the present special appeal the appellant is challenging an order dated 27.03.12. The order so passed is exparte order in a writ petition in which the appellant had not been impleaded as a respondent. This is despite the fact that the order dated 27.03.12 directly affects the rights of the appellant to continue in service.
3. That in pursuance to the order dated 27.03.12 the UP Secondary Education Services Selection Board proceeded to issue a revised select list on 16.12.14 in which the name of the appellant stands excluded from the select list. Such revised select list was only pasted on the notice board of UP Secondary Education Services Selection Board and was neither published in the newspaper nor released on the Internet.
4. That the appellant acquired knowledge of such a revised select list having been published only in the third week of Jan.'15. Immediately thereafter appellant made enquiries and became aware of Writ No.14110 of 2012 and the order dated 27.03.12 passed therein.
5. Because immediately thereafter the appellant has taken steps for the preparation and filing of the present special appeal.
6. Because in fact there does not exist any delay on the part of the appellant as the appeal is been presented within 30 days from the date of acquiring knowledge. Even in case the appellant is treated to be time barred the delay has been on account of the circumstances beyond the control of the appellant.
7. That it is expedient in the interest of justice that this Hon'ble court may be pleased to condone the delay occasioned in filing the present appeal and to hear and decide the same on merits."
The relevant background aspects of the matter are that the appellant had been a candidate in the selection process taken up by the U.P. Secondary Education Services Selection Board, Allahabad (in short 'the Board') pursuant to the advertisement No. 1 of 2010 for filling up the post of Assistant Teacher in L.T. Grade for Mathematics. The case of the appellant is that being fully qualified and eligible, he participated in the selection process and was ultimately selected; that in the final select list published on 28.11.2012, he was recommended for appointment at Chaudhary Pahalwan Singh Inter College, Inchauri, District-Hamirpur; and that, the D.I.O.S. Hamirpur passed an order on 26.03.2012 directing the management of the said college to grant him appointment whereafter, the appointment order was issued on 13.04.2012, pursuant whereof, he joined and has been working continuously.
It appears that two of the unsuccessful candidates, who are respondent Nos. 3 and 4 herein, have challenged the selection process by way of the aforesaid Writ A No. 14110 of 2012; and correctness of evaluation and awarding of marks in respect of certain questions in the written examination has been questioned. The said writ petition was taken up for consideration by the learned Single Judge on 27.03.2012 and the learned Single Judge passed the order impugned, which has been noticed hereinbefore.
It has been pointed out during the course of submissions that the said writ petition was thereafter taken up on 17.04.2012 when the matter was adjourned to 01.05.2012 with the directions that by that time, the expert's report, as desired by the order dated 27.03.2012, would be obtained and the Court would be informed accordingly. In response to our queries, it has also been pointed out during the course of submissions that thereafter, the said writ petition was listed on a few occasions, but could not be taken up and no further order was passed by the Court. The said writ petition, as noticed, remains pending yet.
However, the grievance of the present appellant is that the Board has proceeded to issue the revised select list on 16.12.2014 in which, his name stands excluded. The said revised select list dated 16.12.2014 has been placed on the record of this appeal as Annexure-2; and it is but apparent that same has been issued specifically with reference to, and in the purported compliance of, the impugned order dated 27.03.2012.
Thus, being aggrieved of the position that revision of the select list has been carried out pursuant to an order passed by this Court without any opportunity of hearing to him, the appellant seeks to maintain this appeal.
The learned Senior Counsel appearing for the appellant has strenuously argued that the writ petition as filed was not even maintainable when the select list dated 26.11.2011 was sought to be challenged but the writ petitioner failed to implead even a single selected candidate as respondent. While submitting that the order dated 27.03.2012 is ex-parte to the appellant and other selected candidates, the learned counsel emphasized on the contention that the order impugned, though purportedly an interim one, has the effect of granting final relief as prayed for in the writ petition; and that the learned Single Judge could not have granted final relief by way of an interim order. Learned counsel has also submitted that the order impugned is bereft of any reason and without any consideration of the given answer key adopted by the Board.
The learned Senior Counsel has also referred to an order passed by a co-ordinate Bench in Special Appeal Defective No. 916 of 2014 on 10.11.2014 (Annexure-6 to this appeal) and has submitted that therein, a Division Bench of this Court has disapproved an order dated 24.08.2012 passed by a learned Single Judge of this Court directing consideration of the report of subject expert and for follow up action; and in that regard, the learned counsel has particularly referred to following passage in the order dated 10.11.2014:-
"A reading of the impugned judgment and order of the learned Single Judge would indicate that the learned Single Judge has examined the facts only pertaining to Writ-A No. 16139 of 2012, which dealt with the subject of History. The entire discussion in the impugned order pertained to Question No. 81, which dealt with the meaning of 'judicial activism'. On the basis of this discussion alone, the learned Single Judge directed the Board to take into account the report submitted by the subject expert, as was submitted in all the matters, and to take further follow up action within two months from the date of receipt of a certified copy of the order. Ex facie, it is evident that save and except for the facts pertaining to the subject of History, the learned Single Judge has not considered the individual facts relating to the writ petitions involved and to the grievances which were raised in those petitions. There has been no consideration at all of the grievances of the third respondent in regard to the written examination which was held in the subject of Art. In this view of the matter, we are of the view that the ultimate direction which was issued by the learned Single Judge to the Board to take follow up action on the basis of the report submitted by the subject expert cannot be sustained. The appellants before the Court are candidates who were found to be successful on the basis of the result which was declared. Admittedly, they were not impleaded as parties to the proceedings. They have been appointed in service of recognised aided institutions in December 2010 and it is not in dispute that they have since been confirmed in service. Since there was a batch of petitions before the learned Single Judge, it appears that on the basis of the discussion contained in the impugned judgment which pertained entirely to the subject of History, a general direction was issued so as to govern all the petitions included in the batch including the petition of the third respondent."
The learned counsel has strenuously argued that when even the final order of this nature has not been approved in intra court appeal, the interim order as questioned in this appeal cannot be sustained.
During the course of submissions, it has also been pointed out before us that some other candidates, who had been declared successful earlier and are now aggrieved of the revised panel dated 16.12.2014, have filed a separate writ petition, being Writ A No. 248 of 2015 that has been considered by the learned Single Judge of this Court and has been placed for consideration along with the aforesaid Writ A No. 14110 of 2012 with the following order as passed on 13.01.2015:-
"Petitioners have appeared in the examination conducted by U.P. Secondary Education Services Selection Board, Allahabad for appointment on the post of Assistant Teacher in LT Grade for Mathematics pursuant to the Advertisement No. 1 of 2010. They were duly qualified and appointment letter were issued on various dates. They have joined their respective institutions in the month of March, April and May-June, 2014 and are continuing as such. All the petitioners have successfully completed their probation period and have been confirmed on the post of Assistant Teacher. A revised panel dated 16.12.2014 for the post of Assistant Teacher in LT Grade for Mathematics has been issued by the respondent-Board resulting into displacement of the petitioners and hence this writ petition.
Sri Ashok Khare, learned Senior Counsel for the petitioners submits that the revised panel stated to have been issued pursuant to the order dated 27.3.2012 in Writ Petition No. 14110 of 2012 which was filed by certain unsuccessful candidates.
Submission is that there is no adjudication so far as the key answers are concerned and expert opinion was obtained by the Board. The re-valuation has been done without adhering to the proper procedure that too much after the selection has been finalised and appointment letters were issued to the petitioners. The petitioners were not heard at any point of time nor any notice was issued to them. They were taken by surprise by the revised panel published on 16.12.2014.
In Writ Petition No. 14110 of 2012, no counter affidavit has been filed by the respondent-Board bringing on record the manner in which the re-evaluation has been done.
Sri Shiv Nath Singh, learned counsel has put in appearance on behalf of respondent no. 2. He prays for and is allowed time to obtain instructions placing before the Court entire original record of re-valuation done after obtaining expert opinion with regard to certain questions.
Put up this matter on 21.1.2015 as fresh alongwith Writ Petition No. 14110 of 2012.
However, till 21.1.2015, the effect and operation of revised panel published on 16.12.2014 shall remain stayed."
On the other hand, the learned counsel appearing for the contesting respondents has argued that the impugned order being essentially that of interim directions, the appellant is not entitled to maintain this appeal, more particularly when he has an opportunity to approach the learned Single Judge and to raise all the objections as sought to be raised. Learned counsel would also submit that the revised panel having been stayed in the order dated 13.01.2015, as passed in Writ A No. 248 of 2015, there is no likelihood of any prejudice to the present appellant. According to the learned counsel for the contesting respondents, in any case, learned Single Judge has not given any such direction which may be considered prejudicial to the appellant.
In an over all comprehension of matter, it is but clear that the basic contention on behalf of the appellant is that by way of order impugned, the learned Single Judge has proceeded to grant final relief as prayed for in the writ petition i.e., revision of result; and final relief could not have been granted by way of interim order.
Viewed in the light of all the existing facts and circumstances, we are not persuaded to entertain this appeal but deem it proper to leave it open to the appellant to take recourse to appropriate proceedings in accordance with law.
The principle, as referred by learned counsel for the appellant, that final relief is not to be granted by way of an interim order, cannot be applied in abstract but the matter is required to be viewed with reference to all the facts and relevant factors concerning a particular case, which include the subject matter of litigation, the issues involved, the final relief claimed, the nature and purport of the interim order and so on. The fact of the matter in the present case remains that by way of the impugned order dated 27.03.2012, the learned Single Judge only adjourned the matter awaiting the report of the expert and directed that such report may be brought on record. The learned Single Judge, of course, directed the Board to take necessary action in terms of expert's report, if any change in the evaluation was required. However, the learned Single Judge neither issued a mandate that the change is bound to be made nor put any prohibition; and only left the matter for the Board that it would take the necessary action as required. As noticed, the matter was taken up thereafter on 17.04.2012 but was adjourned awaiting the report of the expert. As has transpired during the course of submissions in this appeal, such report was never placed before the learned Single Judge and the said writ petition, thereafter, is yet to be taken up for consideration.
Be that as it may, the fact of the matter further is that on 16.12.2014, the Board has proceeded to issue the revised panel in the purported compliance of the order dated 27.03.2012. We are not commenting on the legality, propriety or correctness of the revised panel dated 16.12.2014, but it does appear that the Board has indeed carried out a revision of the result. In our view, as to whether such a revision is to be countenanced or not would be a matter for adjudication at the appropriate stage in the appropriate proceedings but, in view of the facts noticed hereinabove, no purpose would be served by granting leave for maintaining this appeal now against the aforesaid interim order dated 27.03.2012.
It is moreover clear that other candidates similarly circumstanced like the present appellant have chosen to file an independent writ petition, which has been ordered to be clubbed with the said writ petition bearing Writ A No. 14110 of 2012 and effect of the revised panel published on 16.12.2014 has been stayed.
In the given set of facts and circumstances, we are of the view that the present appellant, if aggrieved of the revised panel dated 16.12.2014, is free to maintain specific independent action in that regard. Moreover, if the appellant considers himself prejudiced or likely to be prejudiced for any order passed in Writ A No. 14110 of 2012 on any order to be passed hereafter in the said writ petition, he is obviously free to approach the learned Single Judge and seek impleadment / intervention in the said writ petition.
Learned counsel for the appellant has argued that when a final order of the same nature has been set aside, the interim order of the very same nature deserves to be set aside and has referred to the order dated 12.11.2014 passed in Special Appeal Defective No. 896 of 2014. We are unable to accept this suggestion. In the order dated 12.11.2014, the Division Bench of this Court has considered the matter where a final order had been passed and found that the same was suffering from such shortcomings as to call for interference in appeal. While allowing the appeal, the Division Bench of this Court only restored the matter for consideration afresh by the learned Single Judge and put the said appellant at liberty to apply for impleadment before the learned Single Judge. In the present matter, there is no occasion for restoring to the matter to the file of the learned Single Judge because the matter is indeed pending before the learned Single Judge. Thus, the present matter cannot be considered standing at stronger footing than the appeal against the final order. Moreover, even in the said order dated 10.11.2014, the appellant was put at liberty to apply for impleadment before the learned Single Judge. In the present case, we have made it clear that the appellant is definitely free to apply for impleadment/ intervention before the learned Single Judge in the pending writ petition.
For what has been noticed and observed hereinabove, we are not inclined to grant leave to appeal in this matter to the present appellant against the order dated 23.07.2012. Thus, the application for leave to appeal, as also the application seeking condonation of delay stand rejected and appeal is, accordingly, dismissed but with the observations and liberty aforesaid.
However, before parting, we make it clear that we have not pronounced on the merits of the case either way and none of the observations herein shall have any bearing on consideration of the matter on merits in the pending writ petition or in any other substantive proceedings, as taken up by any aggrieved person in accordance with law.
Order Date :- 30.1.2015
Sharad
(Shashi Kant, J.) (Dinesh Maheshwari, J.)
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HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 21
Case :- SPECIAL APPEAL DEFECTIVE No. - 98 of 2015
Appellant :- Yogendra Singh
Respondent :- State Of U.P. And 3 Others
Counsel for Appellant :- Siddharth Khare,Ahsok Khare
Counsel for Respondent :- C.S.C.,Seemant Singh,Shiv Nath Singh
Hon'ble Dinesh Maheshwari,J.
Hon'ble Shashi Kant,J.
(Per Dinesh Maheshwari, J.)
Heard learned counsel for the parties and perused the material placed on record.
The appellant seeks to maintain this intra court appeal against the order dated 27.03.2012 passed by the learned Single Judge of this Court in Writ A No. 14110 of 2012 that reads as under:-
"Learned counsel for U.P. Secondary Education Service Selection Board submits that a letter dated 26.03.2012 along with attending documents has been forwarded to the Head of the Mathematics Department of the Allahabad University for his expert opinion in respect of the question nos. 13, 22, 31, 40, 49 and 114. The opinion of the expert is still awaited.
Adjournment as prayed for is granted. By 17th April, 2012, the report of the expert may be brought on record before this Court. It is clarified that the Board shall take necessary action in terms of the expert's report, if any change in the evaluation is required.
List on 17th April, 2012."
The said writ petition bearing No. 14110 of 2012 remains pending and the appellant has not been joined as a party therein but seeks to maintain this appeal being a person aggrieved by the order aforesaid, as also the consequence thereof. This appeal, filed only on 28.01.2015, is reportedly beyond time by 2 years and 276 days. The appellant has filed an application (No. 29832 of 2015) seeking leave to appeal while stating his direct interest in the subject matter in the following terms:-
"1. That the applicant is the appellant in the aforesaid special appeal.
2. That the appellant was selected for appointment as Assistant Teacher in L.T. Grade for Mathematics subject in pursuance to advertisement No. 1 of 2010 and granted appointment on 13.04.2012. Since then the appellant has been continuously working.
3. That under the order impugned passed in Writ A No. 14110 of 2012 direction was issued to the U.P. Secondary Education Services Selection Board to proceed to revise the result which had already been declared. Such direction directly affects the appellant. However, the writ petition had been filed without impleading the appellant as a respondent.
4. That since the appellant is directly affected by the order impugned. It is expedient in the interest of justice that this Hon'ble Court may be pleased to grant leave to the appellant to maintain the present Special Appeal against the order dated 27.03.2012."
The appellant has also filed an application seeking condonation of delay (No. 29833 of 2015) stating reasons and circumstances for the delay and the prayer for condonation in the following terms:
"1. That the applicant is the appellant in the aforesaid special appeal.
2. That by means of the present special appeal the appellant is challenging an order dated 27.03.12. The order so passed is exparte order in a writ petition in which the appellant had not been impleaded as a respondent. This is despite the fact that the order dated 27.03.12 directly affects the rights of the appellant to continue in service.
3. That in pursuance to the order dated 27.03.12 the UP Secondary Education Services Selection Board proceeded to issue a revised select list on 16.12.14 in which the name of the appellant stands excluded from the select list. Such revised select list was only pasted on the notice board of UP Secondary Education Services Selection Board and was neither published in the newspaper nor released on the Internet.
4. That the appellant acquired knowledge of such a revised select list having been published only in the third week of Jan.'15. Immediately thereafter appellant made enquiries and became aware of Writ No.14110 of 2012 and the order dated 27.03.12 passed therein.
5. Because immediately thereafter the appellant has taken steps for the preparation and filing of the present special appeal.
6. Because in fact there does not exist any delay on the part of the appellant as the appeal is been presented within 30 days from the date of acquiring knowledge. Even in case the appellant is treated to be time barred the delay has been on account of the circumstances beyond the control of the appellant.
7. That it is expedient in the interest of justice that this Hon'ble court may be pleased to condone the delay occasioned in filing the present appeal and to hear and decide the same on merits."
The relevant background aspects of the matter are that the appellant had been a candidate in the selection process taken up by the U.P. Secondary Education Services Selection Board, Allahabad (in short 'the Board') pursuant to the advertisement No. 1 of 2010 for filling up the post of Assistant Teacher in L.T. Grade for Mathematics. The case of the appellant is that being fully qualified and eligible, he participated in the selection process and was ultimately selected; that in the final select list published on 28.11.2012, he was recommended for appointment at Chaudhary Pahalwan Singh Inter College, Inchauri, District-Hamirpur; and that, the D.I.O.S. Hamirpur passed an order on 26.03.2012 directing the management of the said college to grant him appointment whereafter, the appointment order was issued on 13.04.2012, pursuant whereof, he joined and has been working continuously.
It appears that two of the unsuccessful candidates, who are respondent Nos. 3 and 4 herein, have challenged the selection process by way of the aforesaid Writ A No. 14110 of 2012; and correctness of evaluation and awarding of marks in respect of certain questions in the written examination has been questioned. The said writ petition was taken up for consideration by the learned Single Judge on 27.03.2012 and the learned Single Judge passed the order impugned, which has been noticed hereinbefore.
It has been pointed out during the course of submissions that the said writ petition was thereafter taken up on 17.04.2012 when the matter was adjourned to 01.05.2012 with the directions that by that time, the expert's report, as desired by the order dated 27.03.2012, would be obtained and the Court would be informed accordingly. In response to our queries, it has also been pointed out during the course of submissions that thereafter, the said writ petition was listed on a few occasions, but could not be taken up and no further order was passed by the Court. The said writ petition, as noticed, remains pending yet.
However, the grievance of the present appellant is that the Board has proceeded to issue the revised select list on 16.12.2014 in which, his name stands excluded. The said revised select list dated 16.12.2014 has been placed on the record of this appeal as Annexure-2; and it is but apparent that same has been issued specifically with reference to, and in the purported compliance of, the impugned order dated 27.03.2012.
Thus, being aggrieved of the position that revision of the select list has been carried out pursuant to an order passed by this Court without any opportunity of hearing to him, the appellant seeks to maintain this appeal.
The learned Senior Counsel appearing for the appellant has strenuously argued that the writ petition as filed was not even maintainable when the select list dated 26.11.2011 was sought to be challenged but the writ petitioner failed to implead even a single selected candidate as respondent. While submitting that the order dated 27.03.2012 is ex-parte to the appellant and other selected candidates, the learned counsel emphasized on the contention that the order impugned, though purportedly an interim one, has the effect of granting final relief as prayed for in the writ petition; and that the learned Single Judge could not have granted final relief by way of an interim order. Learned counsel has also submitted that the order impugned is bereft of any reason and without any consideration of the given answer key adopted by the Board.
The learned Senior Counsel has also referred to an order passed by a co-ordinate Bench in Special Appeal Defective No. 916 of 2014 on 10.11.2014 (Annexure-6 to this appeal) and has submitted that therein, a Division Bench of this Court has disapproved an order dated 24.08.2012 passed by a learned Single Judge of this Court directing consideration of the report of subject expert and for follow up action; and in that regard, the learned counsel has particularly referred to following passage in the order dated 10.11.2014:-
"A reading of the impugned judgment and order of the learned Single Judge would indicate that the learned Single Judge has examined the facts only pertaining to Writ-A No. 16139 of 2012, which dealt with the subject of History. The entire discussion in the impugned order pertained to Question No. 81, which dealt with the meaning of 'judicial activism'. On the basis of this discussion alone, the learned Single Judge directed the Board to take into account the report submitted by the subject expert, as was submitted in all the matters, and to take further follow up action within two months from the date of receipt of a certified copy of the order. Ex facie, it is evident that save and except for the facts pertaining to the subject of History, the learned Single Judge has not considered the individual facts relating to the writ petitions involved and to the grievances which were raised in those petitions. There has been no consideration at all of the grievances of the third respondent in regard to the written examination which was held in the subject of Art. In this view of the matter, we are of the view that the ultimate direction which was issued by the learned Single Judge to the Board to take follow up action on the basis of the report submitted by the subject expert cannot be sustained. The appellants before the Court are candidates who were found to be successful on the basis of the result which was declared. Admittedly, they were not impleaded as parties to the proceedings. They have been appointed in service of recognised aided institutions in December 2010 and it is not in dispute that they have since been confirmed in service. Since there was a batch of petitions before the learned Single Judge, it appears that on the basis of the discussion contained in the impugned judgment which pertained entirely to the subject of History, a general direction was issued so as to govern all the petitions included in the batch including the petition of the third respondent."
The learned counsel has strenuously argued that when even the final order of this nature has not been approved in intra court appeal, the interim order as questioned in this appeal cannot be sustained.
During the course of submissions, it has also been pointed out before us that some other candidates, who had been declared successful earlier and are now aggrieved of the revised panel dated 16.12.2014, have filed a separate writ petition, being Writ A No. 248 of 2015 that has been considered by the learned Single Judge of this Court and has been placed for consideration along with the aforesaid Writ A No. 14110 of 2012 with the following order as passed on 13.01.2015:-
"Petitioners have appeared in the examination conducted by U.P. Secondary Education Services Selection Board, Allahabad for appointment on the post of Assistant Teacher in LT Grade for Mathematics pursuant to the Advertisement No. 1 of 2010. They were duly qualified and appointment letter were issued on various dates. They have joined their respective institutions in the month of March, April and May-June, 2014 and are continuing as such. All the petitioners have successfully completed their probation period and have been confirmed on the post of Assistant Teacher. A revised panel dated 16.12.2014 for the post of Assistant Teacher in LT Grade for Mathematics has been issued by the respondent-Board resulting into displacement of the petitioners and hence this writ petition.
Sri Ashok Khare, learned Senior Counsel for the petitioners submits that the revised panel stated to have been issued pursuant to the order dated 27.3.2012 in Writ Petition No. 14110 of 2012 which was filed by certain unsuccessful candidates.
Submission is that there is no adjudication so far as the key answers are concerned and expert opinion was obtained by the Board. The re-valuation has been done without adhering to the proper procedure that too much after the selection has been finalised and appointment letters were issued to the petitioners. The petitioners were not heard at any point of time nor any notice was issued to them. They were taken by surprise by the revised panel published on 16.12.2014.
In Writ Petition No. 14110 of 2012, no counter affidavit has been filed by the respondent-Board bringing on record the manner in which the re-evaluation has been done.
Sri Shiv Nath Singh, learned counsel has put in appearance on behalf of respondent no. 2. He prays for and is allowed time to obtain instructions placing before the Court entire original record of re-valuation done after obtaining expert opinion with regard to certain questions.
Put up this matter on 21.1.2015 as fresh alongwith Writ Petition No. 14110 of 2012.
However, till 21.1.2015, the effect and operation of revised panel published on 16.12.2014 shall remain stayed."
On the other hand, the learned counsel appearing for the contesting respondents has argued that the impugned order being essentially that of interim directions, the appellant is not entitled to maintain this appeal, more particularly when he has an opportunity to approach the learned Single Judge and to raise all the objections as sought to be raised. Learned counsel would also submit that the revised panel having been stayed in the order dated 13.01.2015, as passed in Writ A No. 248 of 2015, there is no likelihood of any prejudice to the present appellant. According to the learned counsel for the contesting respondents, in any case, learned Single Judge has not given any such direction which may be considered prejudicial to the appellant.
In an over all comprehension of matter, it is but clear that the basic contention on behalf of the appellant is that by way of order impugned, the learned Single Judge has proceeded to grant final relief as prayed for in the writ petition i.e., revision of result; and final relief could not have been granted by way of interim order.
Viewed in the light of all the existing facts and circumstances, we are not persuaded to entertain this appeal but deem it proper to leave it open to the appellant to take recourse to appropriate proceedings in accordance with law.
The principle, as referred by learned counsel for the appellant, that final relief is not to be granted by way of an interim order, cannot be applied in abstract but the matter is required to be viewed with reference to all the facts and relevant factors concerning a particular case, which include the subject matter of litigation, the issues involved, the final relief claimed, the nature and purport of the interim order and so on. The fact of the matter in the present case remains that by way of the impugned order dated 27.03.2012, the learned Single Judge only adjourned the matter awaiting the report of the expert and directed that such report may be brought on record. The learned Single Judge, of course, directed the Board to take necessary action in terms of expert's report, if any change in the evaluation was required. However, the learned Single Judge neither issued a mandate that the change is bound to be made nor put any prohibition; and only left the matter for the Board that it would take the necessary action as required. As noticed, the matter was taken up thereafter on 17.04.2012 but was adjourned awaiting the report of the expert. As has transpired during the course of submissions in this appeal, such report was never placed before the learned Single Judge and the said writ petition, thereafter, is yet to be taken up for consideration.
Be that as it may, the fact of the matter further is that on 16.12.2014, the Board has proceeded to issue the revised panel in the purported compliance of the order dated 27.03.2012. We are not commenting on the legality, propriety or correctness of the revised panel dated 16.12.2014, but it does appear that the Board has indeed carried out a revision of the result. In our view, as to whether such a revision is to be countenanced or not would be a matter for adjudication at the appropriate stage in the appropriate proceedings but, in view of the facts noticed hereinabove, no purpose would be served by granting leave for maintaining this appeal now against the aforesaid interim order dated 27.03.2012.
It is moreover clear that other candidates similarly circumstanced like the present appellant have chosen to file an independent writ petition, which has been ordered to be clubbed with the said writ petition bearing Writ A No. 14110 of 2012 and effect of the revised panel published on 16.12.2014 has been stayed.
In the given set of facts and circumstances, we are of the view that the present appellant, if aggrieved of the revised panel dated 16.12.2014, is free to maintain specific independent action in that regard. Moreover, if the appellant considers himself prejudiced or likely to be prejudiced for any order passed in Writ A No. 14110 of 2012 on any order to be passed hereafter in the said writ petition, he is obviously free to approach the learned Single Judge and seek impleadment / intervention in the said writ petition.
Learned counsel for the appellant has argued that when a final order of the same nature has been set aside, the interim order of the very same nature deserves to be set aside and has referred to the order dated 12.11.2014 passed in Special Appeal Defective No. 896 of 2014. We are unable to accept this suggestion. In the order dated 12.11.2014, the Division Bench of this Court has considered the matter where a final order had been passed and found that the same was suffering from such shortcomings as to call for interference in appeal. While allowing the appeal, the Division Bench of this Court only restored the matter for consideration afresh by the learned Single Judge and put the said appellant at liberty to apply for impleadment before the learned Single Judge. In the present matter, there is no occasion for restoring to the matter to the file of the learned Single Judge because the matter is indeed pending before the learned Single Judge. Thus, the present matter cannot be considered standing at stronger footing than the appeal against the final order. Moreover, even in the said order dated 10.11.2014, the appellant was put at liberty to apply for impleadment before the learned Single Judge. In the present case, we have made it clear that the appellant is definitely free to apply for impleadment/ intervention before the learned Single Judge in the pending writ petition.
For what has been noticed and observed hereinabove, we are not inclined to grant leave to appeal in this matter to the present appellant against the order dated 23.07.2012. Thus, the application for leave to appeal, as also the application seeking condonation of delay stand rejected and appeal is, accordingly, dismissed but with the observations and liberty aforesaid.
However, before parting, we make it clear that we have not pronounced on the merits of the case either way and none of the observations herein shall have any bearing on consideration of the matter on merits in the pending writ petition or in any other substantive proceedings, as taken up by any aggrieved person in accordance with law.
Order Date :- 30.1.2015
Sharad
(Shashi Kant, J.) (Dinesh Maheshwari, J.)
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