Allahabad High Court
Ram Naresh Singh And 26 Others vs State Of U.P. And 29 Others on 14 December, 2017
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 26 Case :- WRIT - A No. - 28607 of 2014 Petitioner :- Ram Naresh Singh And 26 Others Respondent :- State Of U.P. And 29 Others Counsel for Petitioner :- Siddharth Khare, Ashok Khare, Prabhakar Dubey Counsel for Respondent :- C.S.C.,Abhishake Mishra, Ashwani Kumar Yadav, B.K.Yadav, K.C.Shukla, Siv Nath Singh, Surya Bhan Singh-I, Vivek Mishra Connected with Case :- WRIT - A No. - 60869 of 2014 Petitioner :- Kamlesh Kumar Maurya Respondent :- State Of U.P. And 2 Ors Counsel for Petitioner :- Sudhir Kumar Rai Counsel for Respondent :- C.S.C.,Raj Nath Maurya,Shiv Nath Singh,V. Mishra And Case :- WRIT - A No. - 60903 of 2014 Petitioner :- Anil Kumar Respondent :- State Of U.P. And 2 Ors Counsel for Petitioner :- Om Narayan Dwivedi Counsel for Respondent :- C.S.C., B.K.Yadav, Shiv Nath Singh, Vivek Mishra And Case :- WRIT - A No. - 57207 of 2014 Petitioner :- Ashwani Kumar And 8 Ors Respondent :- State Of U.P. And 19 Ors Counsel for Petitioner :- Siddharth Khare, Ashok Khare, S. Kumar Counsel for Respondent :- C.S.C., Mahavir Verma, Shiv Nath Singh, Vivek Mishra And Case :- WRIT - A No. - 30743 of 2014 Petitioner :- Mukesh Kumar And 5 Others Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Abhishake Mishra,J.H. Khan,Neeraj Singh,Shiv Nath Singh,Vivek Mishra And Case :- WRIT - A No. - 34154 of 2014 Petitioner :- Arun Kumar Yadav Respondent :- State Of U.P. Thru Secy. And 3 Others Counsel for Petitioner :- V.K. Singh,D.K. Singh Counsel for Respondent :- C.S.C.,Abhishake Mishra,Shiv Nath Singh,Vivek Mishra Hon'ble Mrs. Sangeeta Chandra,J.
1. This bunch of writ petitions has been filed praying for a writ in the nature of certiorari for quashing the revised Select List published by U.P. Secondary Education Services Selection Board, Allahabad (herein-after referred to as the "Selection Board") for the post of Assistant Teacher in L.T. Grade for Hindi subject in pursuance of the Advertisement No. 1 of 2010 published on 12.05.2014, with a further prayer for issuance of a writ in the nature of mandamus to the respondents not to interfere in the working of the petitioners as Assistant Teachers in L.T. Grade in their respective Institutions and to pay the petitioners their regular salary and allowances from month to month.
2. It is the case of the writ petitioners that the Selection Board issued an Advertisement No. 1 of 2010 on 08.10.2010 inviting applications for filling up large number of teaching posts in different subjects in privately managed recognized and aided Higher Secondary Schools in the State of U.P. This advertisement included 513 posts of Assistant Teachers in L.T. Grade for Hindi subject for boys Institutions and 45 such posts for Hindi Teacher in girls Institutions. The petitioners made their applications and were called for selection. The final Select List was published on 28.06.2011 and the petitioners were duly selected and their names were forwarded by the District Inspector of Schools of respective Districts to the Managements of the various Educational Institutions, for which the petitioners were selected with a direction for appointment. Each of the petitioners were thereafter appointed by the Committee of Management of the Educational Institutions concerned. Some of the petitioners for example, petitioner Nos. 1 and 10 in Writ A No. 28607 of 2014 were subsequently transferred to other Educational Institutions by the Additional Director of Education (Secondary) and they joined these new Institutions and started working. Each of the petitioners had completed almost three years of such working on the post as Assistant Teacher in L.T. Grade for Hindi subject in their respective Institutions and most of them had even been confirmed after successful completion of probation.
3. In November, 2012 one writ petition was filed, namely, Writ Petition No. 61517 of 2012 (Sandeep Kumar Verma vs State of U.P. and others) praying for a writ in the nature of mandamus directing respondent No. 2 (the Selection Board) to award the marks to the petitioner for question No. 80 of Booklet Series "C", in view of the corrected Answer Key, and to consider the case of the petitioner for selection as Trained Graduate Teacher Hindi (herein-after referred to as the T.G.T., Hindi) after adding the awarded marks for Question No. 80 of Booklet Series "C".
4. The writ petitioner Sandeep Kumar Verma alleged in the writ petition that he belonged to OBC Male Category and had secured a total of 427 marks as against the cut off marks of 428 for last candidate selected for OBC Male Category as TGT, Hindi. He claimed that the answer of Question No. 80 in Booklet Series "C" had been corrected by the Selection Board and on such basis, one Rakesh Kumar, son of Raja Ram had been given selection and appointment in the same Category of OBC Male on a vacancy remaining unfilled on account of non joining of selected candidate, Santosh Kumar Kushwaha.
5. In the said writ petition, the petitioner enclosed the copy of the order passed by the Selection Board dated 12.10.2012 in favour of Rakesh Kumar, son of Raja Ram and prayed for grant of similar benefit. Sandeep Kumar Verma also prayed that he had made a representation claiming parity and sympathetic consideration, but the Selection Board had not paid any heed and therefore, he had approached this Court and it may be directed to be decided by the Selection Board.
6. It is the case of the petitioners that neither any challenge was raised to the Select List already published nor any of the selected candidates had been impleaded as respondent in Writ Petition No. 61517 of 2015 by Sandeep Kumar Verma.
7. Writ Petition No. 61517 of 2012 was disposed of by this Court vide judgment and order dated 27.11.2012 with a direction for consideration of representation of Sandeep Kumar Verma by the Selection Board. On 09.04.2013, the Selection Board proceeded to issue a revised result of the written examination in purported compliance of the judgment of this Court dated 27.11.2012.
8. In the aforesaid result, the Board proceeded to declare 108 candidates, who had earlier been declared as qualified in the written examination to be unsuccessful and it proceeded to declare 65 candidates, who were earlier unsuccessful in the written examination, to be successful and notified 14.05.2013 as the date for holding interview of the additionally selected candidates.
9. The aforesaid revised result dated 09.04.2013 was challenged by one Dr. Kamlesh Kumar Maurya by filing Writ A No. 26199 of 2013. The said writ petition was dismissed on 09.05.2013. Dr. Kamlesh Kumar Maurya and others proceeded to file Special Appeal (Defective) No. 588 of 2013 challenging the judgment and order dated 27.11.2012, by which Writ A No. 61517 of 2012 (Sandeep Kumar Verma vs State of U.P. and others) was decided. This Special Appeal remained pending.
10. The Selection Board proceeded to hold Interview of additional candidates and on 12.5.2014 a fresh revised Select List was declared pertaining to Boys Institutions falling under Category 01, as also pertaining to Girls institutions falling under Category 02.
11. It has been alleged by the petitioners that the revised result was only pasted on the Notice Board of the Selection Board and was never released or published in any newspaper or on the Internet. The names of the petitioners stood omitted in the revised Select List and the private respondents had been recommended in place of the petitioners.
12. Some of the private respondents in this bunch of writ petitions were candidates, who were earlier included in the Select List for a different Institution and were working in that Institutions, but later on, on revision of Select list, they stood recommended for some different Institution and with respect to these private respondents only an alteration with regard to Institution for which they were recommended for appointment by the Selection Board had occurred.
13. It is the case of the petitioners that these private respondents, whose educational Institutions have been changed due to change of their rank in the revised Select List are not desirous of joining such altered Institutions as they have already completed several years of working in their initial Institutions and are more or less settled.
14. It is the case of the petitioners that the impugned revised Select List had been issued beyond the jurisdiction of the Selection Board and after declaration of final Select List, the Board had become functus officio. The said Select List had also been acted upon by grant of appointment to the selected candidates i.e. the petitioners and it was no longer open for the Selection Board to make alterations or revise the Select List.
15. It is the case of the petitioners that the Selection Board placed reliance upon the judgment and order dated 27.11.2012 passed in Writ Petition No. 61517 of 2012, whereas in the said judgment, this Court had only directed the Board to decide the representation of Sandeep Kumar Verma, the writ petitioner therein. Had the Selection Board only decided the case of Sandeep Kumar Verma and included him as selected candidate, then only one candidate out of the already declared Select List would have been disturbed. The entire exercise of first declaring of fresh result for written examination and then calling additional candidates for interview and preparing a fresh Select List thereafter was wholly unwarranted.
16. It is also the case of the petitioners that no positive directions were issued by this Court to revise the Select List.
17. It is also the case of the petitioners that they came to know of the entire exercise carried out by the Selection Board after the revised Select List was published, when writ petitioners were excluded and the private respondents were included as selected candidates. These writ petitioners had continued to work in their respective Institutions without being made aware about the whole proceedings taken by the Selection Board and when it came to their knowledge that their appointments were proposed to be cancelled because of the revised Select List, they approached this Court by means of filing this bunch of writ petitions.
18. This Court while entertaining these writ petitions had directed that until further orders, the petitioners, if they were working on the post of Assistant Teacher, shall not be terminated from service on account of revision of Select List.
19. Allegations have been made in several of these writ petitions regarding malice in fact and malice in law with regard to members of the Selection Board. However, these allegations cannot be entered into by this Court in the absence of any of the then members of the Selection Board being arrayed as private respondents, as party in person, nor notices being ever issued to such persons by the Court itself during the pendency of these writ petitions.
20. After interim orders were granted to the writ petitioners, counter affidavits were filed on behalf of the Selection Board as well as private respondents.
21. In the counter affidavit filed by the Selection Board through its counsel Mr Shiv Nath Singh, it has been averred that the judgment and order of this Court dated 27.11.2012 in the case of Sandeep Kumar Verma had clearly stated that Question No. 80 of Booklet Series "C" had been initially answered incorrectly in the Answer Key published by the Board. Later on, the mistake was rectified and the answer given by the petitioners was treated to be the correct answer, but no marks were awarded to the petitioner for the said question. A representation was made, which remained pending. It was, therefore, directed that if the petitioner files a fresh representation, the Board shall examine the same and take a decision in accordance with law. The merits of the case had to be examined by the Selection Board.
22. When the Selection Board examined the case of the writ petitioner therein on merits, it found that Question No. 80 in Question Booklet Series "C" relating to T.G.T., Hindi had asked the candidates as to who was the author of the Novel "Hari Bindi" and the option as earlier marked by the Selection Board in its Answer Key was wrongly shown as "Maitreyi Pushpa". Later on, it was corrected and the author of Novel was shown as "Mridula Garg". As a result of wrong mention of the name of author, there was an error in declaring the result of Question No. 80. Since, there was an apparent error in the name of the author of Novel "Hari Bindi", the correction of the same in the final Answer Key, resulted in 70 persons being taken out of the list of successful candidates for final selection and 70 new persons i.e. private respondents being selected.
23. The allegations of petitioners that no opportunity of hearing was granted, has been controverted by the Selection Board saying that when the error was apparent on the face of the record, the Selection Board was duty bound to correct the said error and no fruitful purpose would have been served by giving opportunity of hearing to the petitioners.
24. The argument raised is that it would have resulted in an exercise in futility. The author of novel "Hari Bindi" being undisputedly "Mridula Garg", the Selection Board could not declare candidates like the petitioners to be selected when they had given the wrong answer as "Maitreyi Pushpa". The Selection Board was duty bound to recheck the Answer Key and give the correct option. The reevaluation was done on the basis of correct Answer Key and the result of reevaluation was declared. Consequently, certain failed candidates were declared successful and certain successful candidates were declared failed.
25. It has been contended by Mr S.N. Singh, learned counsel appearing for the Selection Board at the time of arguments that the petitioners were wrongly selected and they could not be given advantage of their own wrong, or the wrong of the Selection Board to the detriment of those honest candidates, who were better prepared and had correctly answered the Question No. 80 and had given the correct name of the author of Novel "Hari Bindi" as Mridula Garg.
26. Among the various counter affidavits filed by various private respondents, there is a counter affidavit of respondent No. 3, Sandeep Kumar Verma in Writ Petition No. 28607 of 2014. Sandeep Kumar Verma has stated that in pursuance of judgment and order of this Court in his Writ Petition No. 61517 of 2012, he had filed a representation before Selection Board on 03.12.2012 along with copy of the order passed by the Court, and thereafter, he moved several reminders. With regard to dispute raised by Sandeep Kumar Verma, the Selection Board had taken a decision in its meeting on 05.12.2012, wherein it was stated that with regard to the question regarding author of novel "Hari Bindi" being incorrectly answered in the Answer Key initially published by the Board, other candidates also viz., Bhawana Singh, Rakesh Kumar and Nitin Verma had filed Writ Petitions before this Court and in these writ petitions there was an order of the Court that the Selection Board should take a decision as to whether its answer to the Question No. 80 was incorrect and thereafter, revaluate the answer books and publish revised result. The exercise was completed by the Selection Board and Answer Key corrected.
27. Thereafter, Sandeep Kumar Verma filed Writ Petition stating that in view of the revised result, benefit had not been given to the writ petitioner and the Court directed that appropriate decision be taken by the Selection Board.
28. In the meeting dated 05.12.2012, it was pointed out that in future several other candidates may come up raising the same issue with regard to incorrect answer to the question relating to author of novel "Hari Bindi" and it would be appropriate that reevaluation be done of answer sheets of all candidates for the post of TGT, Hindi and then the a revised merit list be declared.
29. Since, Sandeep Kumar Verma had not been given the benefit of revision in result, he had filed a Contempt Petition No. 513 of 2013, in which notices were issued on 30.01.2013, and thereafter, the Selection Board decided the representation of Sandeep Kumar Verma on 18.03.2013 and he was declared selected on the post of Assistant Teacher, TGT, Hindi and recommended for appointment in Sant Kabir Inter College, Dhairam Ka Pura, Saidapur, Ambedkar Nagar as the said post was vacant due to erstwhile selected candidate Ramesh Kumar, son of Thakur Prasad, having not joined as he had been selected as Lecturer Hindi in another Institution i.e. Janta Inter College, Mudhakheda, J.P. Nagar. Sandeep Kumar Verma was thereafter appointed and is teaching in Sant Kabir Inter College, Dhairam Ka Pura, Saidapur, Ambedkar Nagar since 10.04.2013.
30. The Selection Board without taking into account the fact that it had already rendered a decision on 18.03.2013 with regard to Sandeep Kumar Verma individually and had recommended his appointment in Sant Kabir Inter College, Dhairam Ka Pura, Saidapur. Ambedkar Nagar reconsidered his claim in pursuance of the revised Select List dated 12.05.2013, and allocated another Institution, namely, Janta Inter College, Virbhumi, Auraiya after excluding the earlier selected candidate, namely, Priti Kushwaha, D/o Jagat Singh, Village Kheda, post Umari Dibiyapur, district Auraiya from the Select List.
31. Priti Kushwaha filed a separate Writ Petition, namely, Writ Petition No. 34796 of 2014 against the revised Select List dated 12.05.2014 and in pursuance of interim order granted to Priti Kushwaha, she is working and her writ petition has also been connected and listed in this bunch of writ petitions.
32. It has also been pointed out by Sandeep Kumar Verma in his counter affidavit that against the order dated 27.11.2012, one Surendra Kumar and eight others filed Special Appeal (Defective) No. 515 of 2014, which was dismissed by the Division Bench of this Court on 23.05.2014 without adjudicating the issues raised by the appellants therein on merits, but with liberty to the appellants to challenge the decision of the Selection Board.
33. The other private respondents, besides Sandeep Kumar Verma in various writ petitions have filed separate counter affidavits.
34. Some newly selected candidates have also filed impleadment applications, which have been allowed and the counter affidavits have been filed by them also to this bunch of writ petitions.
35. It is the case of these private respondents that considering the undisputed fact that "Hari Bindi" was written by "Mridula Garg", the result was correctly revised by the Selection Board. Such private respondents have also raised the arguments that even if, opportunity of hearing would have been given, the name of author of novel "Hari Bindi" would not have changed, and the author would have remained "Mridula Garg". If such was the case, then giving of opportunity of hearing to earlier wrongly selected candidates would have no relevance at all. Since, undisputedly, the incorrect answer had been given by the petitioners, and they were wrongly selected initially by the Selection Board, correction of mistake by the Selection Board should have been done suo moto by it and was rightly done by the Selection Board.
36. When this bunch of writ petitions came up for hearing before this Court on 27.07.2017, Mr Ashok Khare, learned Senior Advocate assisted by Mr Siddharth Khare, learned counsel appearing for the petitioners argued the matter at length with regard to pleadings already made in the writ petitions, but lastly pointed out on the basis of judgments of Hon'ble Supreme Court in the case of Rajesh Kumar and others vs State of Bihar and others, reported in 2013 (4) SCC 690 and the judgment in Vikas Pratap Singh and others vs State of Chhatisgarh, reported in 2013 (14) SCC 494, that the petitioners cannot be said to have resorted to any misrepresentation or fraud and they cannot therefore be ousted after having rendered almost six years of service.
37. It was argued that the Supreme Court in the aforesaid judgments has observed that deserving candidates, who ought to have been selected, could not be selected due to error in conducting of the examination and declaration of result and they have a right to be considered for appointment. However, those candidates, who did not practise any misrepresentation and were working for almost three years on the posts in question from which they were sought to be ousted because of the orders impugned passed by the High Court, also needed to be adjusted.
38. Mr R.K. Ojha, learned Senior Advocate, appearing for most of the private respondents assisted by Mr Vivek Mishra, Mr Surya Bhan Singh, Mr Kshetresh Chandra Shukla, Mr Abhishek Mishra, Mr B.K. Yadav, Mr Prabhakar Dubey, Advocates has argued that it is settled law that where the result of giving of opportunity of hearing would not have resulted in a change of decision by the Administrative Authority, the exercise of giving reasonable opportunity of hearing or following the principles of natural justice would be an exercise in futility.
39. Learned Senior Advocate Mr R.K. Ojha, has referred two judgment of the Supreme Court in the case of Mansoor Ali Khan vs Aligarh Muslim University reported in 1999 (2) AWC 1546 and in the case of Union of India vs O. Chakradhar reported in 2002 (1) SCR 1091.
40. Mr R.K. Ojha has also argued that in a similar case relating to Advertisement No. 1 of 2009 in Writ A No. 61659 of 2010 (Ranjeet Kumar and others vs State of U.P. and others), learned Single Judge has already considered similar controversy and has found at least nine questions relating to advertisement No. 1 of 2009 for selection the post of TGT, Social Science, of which final result was declared on 14.09.2010 as incorrectly marked by Selection Board.
41. This Court in the aforesaid Writ A No. 61659 of 2010 (Ranjeet Kumar Singh vs State of U.P.) and 11 connected writ petitions had held that the Court would be failing in its constitutional obligation to prevent arbitrariness, illegality in the matter of right of consideration for employment, and the selection would be vitiated as arbitrary and in violation of Articles 14 and 16 read with Article 21 of the Constitution of India.
42. This Court had directed the appointment of all selected candidates in the revised result even though appointment and selection of already working candidates had not been questioned and those persons were not before this Court. This Court had held that the persons, who had given incorrect answers would already be aware of the mistakes and inaccuracies in the multiple choices given in respect of above questions. It could not be assumed that they had not visualized that on account of wrong choice or wrong answers or wrong questions given in the Selection Board Answer Key, they may suffer in preparation of ultimate merit list.
43. This Court had therefore held that such selected candidates, who were already working on the basis of incorrect answers, could not have been selected if the questions set up by the Selection Board would have been answered correctly in the Answer Key. The Court therefore, directed that the result should be revaluated by the Selection Board and all those petitioners, who had secured total marks more than the last selected and appointed person, were to be given appointment. The said appointment was to be made against advertised vacancies on the post of Trained Graduate Teachers.
44. The persons already appointed in service however were not to be disturbed except to the extent of one or more of the petitioners on account of increase in his total marks was required to be appointed in their place. In such cases, the persons selected last in the merit would have to suffer and their appointments, if already made, were to be terminated. It was further directed by the Court that only those vacancies, which were requisitioned and advertised in the above selection can be made to be governed by the judgment rendered by it and subsequent and other vacancies not included in the above selection could not be taken into consideration to give benefit to any of the petitioners by protecting appointments already made.
45. For the purpose of actual payment of salary, the appointment of the petitioners was to take effect from the date of such appointment, but for the purpose of pay fixation, seniority etc. it should relate back to the date on which such persons, lower in merit to the respective petitioners, was appointed. If there was no person lower in the merit than the petitioners (s) and he/they were last in the merit list, then this date would be the same as the person next to these petitioner (s). Further directions were issued in the judgment and order dated 08.02.2012 to the Selection Board to conduct an inquiry and fix responsibility of its officials in making mistakes and resulting in erroneous selection.
46. It has been argued by Mr R.K. Ojha, learned Senior Advocate that this Court in its Full Bench decision in the case of Prashant Kumar Katiyar vs State of U.P. reported in 2013 (1) ADJ 523, specifically affirmed the judgment rendered in the case of Raja Ram vs State of U.P. and others, reported in 2009 (10) ADJ 585, as referred in the decision of U.P. Secondary Education Service Selection Board vs State of U.P. and others, reported in 2011 (3) ADJ 340. It has been held that adjustment can be done of candidates only against those vacancies, which have been notified and advertised in the same selection. Rule 13(5) of 1998 Service Selection Board Rules was interpreted so as to facilitate the adjustment of selected candidates having faced the Board. This adjustment could be done against the vacancies notified and advertised only for a candidate selected by the Board. This adjustment could be done with respect to the posts under the same advertisement, and unadvertised vacancy cannot be offered to a candidate, who had applied for a different advertisement as he had not competed with the candidates of that advertisement. The vacancy that was never advertised also cannot be offered as it would violate Article 14 of the Constitution of India and to that extent, the Full Bench approved the view taken by the Division Bench in the case of Satish Kumar vs State reported in 2006 (7) AWC 7570,
47. The Full Bench in Prashant Kumar Katiyar (supra) had held that a post would be occupied upon placement of selected candidate in it as recommended by the Selection Board after selection followed by intimation offering the appointment and consequential joining of the candidate. The function of the Selection Board is to select, empanel and recommend placement of the candidate after considering his choices as per the Rules. The role of the Selection Board thereafter comes to an end and process of formal appointment is taken over by the Educational Authorities and the Managements of the Institution concerned.
48. The question considered by the Full Bench was with regard to the stage at which the Selection Board could exercise its powers under Rule 13(5) to make adjustments of selected candidates of an advertisement.
49. The Full Bench had observed in paragraph 90 thus:
"In our view, once the appointment according to the empanelment is offered and the candidate joins, or when prevented from joining, action has been taken under Section 17 for his joining, the Board becomes functus officio for that vacancy which in law would cease to exist. The reason is that a placement by way of adjustment under Rule 13(5) can be made only against a vacancy and not after it is occupied. The Board also cannot be allowed to continue to alter empanelments for the convenience of candidates, as it would then be an unruly horse giving discretion even after selections have been finalized. The exercise of options by the candidates is over at the stage of interview and the adjustments therefore have to be only if a vacancy is available and not otherwise. "
50. It had answered the Question No. 'E' referred to it in paragraph 93 of the said judgment thus:
"E) The interpretation, the scope and applicability of Rule 13(5) of the 1998 Rules as affirmed in the case of U.P. Secondary Education Services Selection Board (supra) is upheld as laying down the law correctly by confining its applicability to the vacancies that are subject matter of the same advertisement and not to such vacancies that were notified but not subject matter of the same advertisement."
51. In view of the law settled by the Full Bench of this Court in the case of Prashant Kumar Katiyar (supra), it has been argued by the learned Senior Counsel for the respondents that this Court cannot issue any mandamus directing the Slection Board to adjust the candidates, such as the petitioners, who were incorrectly selected/wrongly selected as they shall be treated as non-selected candidates. Moreover, no adjustment can be directed to be made by the Selection Board in exercise of its power under Rule 13(5) of the 1998 Rules on vacancies notified by the various privately managed, recognised and aided Secondary Institutions after the date of advertisement No. 1 of 2010 i.e. after 08.10.2010. Such vacancies as have occurred later on would be vacancies, which were beyond vacancies advertised, and should be left open for candidates, who later become eligible for staking their claim for selection on such posts.
52. Mr Ashok Khare, learned Senior Advocate has countered the arguments so raised with regard to judgment rendered by the Hon'ble Single Judge in Ranjeet Kumar Singh (supra) on 08.02.2012, by bringing on record the fact that the judgment dated 08.02.2012 was challenged by the U.P. Secondary Education Service Selection Board by filing Special Appeal No. 442 of 2012, which was dismissed by this Court on 13.03.2012. Aggrieved against the Division Bench judgment in Special Appeal No. 442 of 2012, one Ram Chand Yadav along with other i.e. candidates whose selection was found incorrect by the Court, had filed the Special Leave to Appeal (Civil) No. 34435-34436 of 2012 (Pankaj & others vs Ranjeet Kumar Singh and other and connected matters); the Hon'ble Supreme Court permitted the said Special Leave Petition to be withdrawn on 07.10.2013 with liberty to move the High Court.
53. In view of the liberty so granted, Ram Chand Yadav filed Special Appeal (Defective) No. 1156 of 2013, which was dismissed by the Division Bench of 28.01.2014. The Division Bench left it open for the appellant therein to seek review of the judgment in Special Appeal No. 442 of 2012 dated 13.03.2012.
54. The Review Petition was filed. Apart from the Review Petition No. 59691 of 2014 various Special Appeals were filed by affected candidates against the judgment of Hon'ble Single Judge dated 08.02.2012 in the case of Ranjeet Kumar Singh and others (supra). All of such Special Appeals were consolidated along with Review Petition No. 59691 of 2014 and were heard together by the Division Bench of this Court, which dismissed such Special Appeals and Review Petition on 02.11.2015. The Division Bench directed that fresh result be prepared on the basis of expert opinion and the selected candidates be appointed on merit only. The other condidates who were incorrectly selected, were to be ousted.
55. Against the Division Bench judgment dated 07.11.2015, several Special Leave Petitions were filed before the Hon'ble Supreme Court, in all of which interim orders were granted protecting the working of already appointed candidates.
56. It has come to the notice of this Court that Special Leave Petitions, which were filed against the Division Bench judgment dated 07.11.2015 were later converted into Civil Appeals and the leading Civil Appeal No. 367 of 2017 (Ran Vijay Singh and others vs State of U.P. and others) has been decided by the Hon'ble Supreme Court on 11.12.2017. The Hon'ble Supreme Court in paragraphs 34 and 35 observed the dilemma before the Court and it further observed thus:
"Given this scenario, the option before us are to nullify the entire re-evaluation process and depend on the result declared on 14th September, 2010 or to go by the third set of results. Cancelling the examination is not an option. Whichever option is chosen, there will be some candidates who are likely to suffer and lose their jobs while some might be entitled to consideration for employment."
Having weighed the options before us, we are of opinion that the middle path is perhaps the best path to be taken under the circumstances of the case. The middle path is to declare the third set of results since the Board has undertaken a massive exercise under the directions of the High Court and yet protect those candidates may now be declared unsuccessful but are working as Trained Graduate Teachers a result of the first or the second declaration of results. It is also possible that consequent upon the third declaration of results some new candidates might get selected and should that happen, they will need to be accommodated since they were erroneously not selected on earlier occasions."
57. The Hon'ble Supreme Court in its judgment dated 11.12.2017 has issued the following directions:
"37. As a result of our discussion and taking into consideration all the possibilities that might arise, we issue the following directions:
(1) The results prepared by the Board consequent upon the decision dated 2nd November, 2015 of the High Court should be declared by the Board within two weeks from today.
(2) Candidates appointed and working as Trained Graduate Teachers pursuant to the declaration of results on the earlier occasions, if found unsuccessful on the third declaration of results, should not be removed from service but should be allowed to continue.
(3) Candidates now selected for appointment as Trained Graduate Teachers (after the third declaration of results) should be appointed by the State by creating supernumerary posts. However, these newly appointed Trained Graduate Teachers will not be entitled to any consequential benefits."
58. It has been argued by Mr Ashok Khare, learned Senior Advocate that while balancing the equities the Hon'ble Supreme Court had directed that those candidates, who were incorrectly selected earlier having worked for long and some of them having also become overage, should be considered for appointment on the vacancies existing in the Department in the case of Rajesh Kumar (supra) and Vikas Pratap Singh (supra).
59. Shri R.K. Ojha, learned Senior Counsel assisted by Shri Vivek Mishra, appearing for the most of respondents and leading the arguments for the respondents, who are the subsequently selected candidates after rectified results were issued, has fairly conceded that in so far as the interference shown by the Hon'ble Supreme Court in favour of the similarly situated appellants in the afore-cited judgments is concerned, he has no cause for grievance if such candidates are accommodated on the vacancies that undoubtedly exist of Assistant Teachers L.T. Grade in Hindi subject in various Secondary Education Institutions. However, he has pointed out to this Court the anxiety of the subsequently selected candidates that these petitioners may not steal a march in seniority over them and has further argued, as has been observed by the Hon'ble Supreme Court in one of these cases, a fresh Select List be drawn up in which both earlier selected candidates and subsequently selected candidates may be shown and their dates of substantive appointments may be treated to be the same.
60. Shri S.N. Singh, Advocate, who appears for the Selection Board, has pointed out practical difficulties that the Board would face due to these adjustments being made in between the petitioners and the private respondents.
61. It is the case of the Selection Board that requisition is sent by a particular Committee of Management of a particular institution to the District Inspector of Schools, who, then, calculates the number of vacancies in his District and sends the requisition to the Directorate of Education and the Directorate thereafter sends the requisition to the Board. There may be several institutions which may not have sent the requisition of Assistant Teachers, L.T. Grade for Hindi subject and these candidates would have difficulty in being placed in such institutions even though vacancy exists.
62. Consequent to the pointing out of difficulty by Mr S.N. Singh, Advocate, who appears for the Selection Board, this Court had granted time to the Selection Board as well as to the Government to file a supplementary counter affidavit bringing on record the Policy decision to be taken by the Government for working out the modalities of adjustment as proposed by the learned Senior Advocates appearing for the petitioners and the private respondents.
63. The State Government has also filed a supplementary counter affidavit in pursuance of the interim order dated 27.07.2017 and has expressed its inability to adjust the non selected candidates or wrongly selected candidates like the petitioners in vacancies that have neither been notified nor advertised in Advertisement No. 1 of 2010. However, it has been brought to the notice of this Court that against the observations made by the Full Bench in Prashant Kumar Katiyar (supra) with regard to interpretation of Rule 13(5) of 1998 Rules, the Selection Board had filed Special Leave Petition No. 14872-14888 of 2013 and the Hon'ble Supreme Court while disposing of the said Special Leave Petition on 23.08.2017 has clarified that selected candidates can be adjusted in available or arising vacancies.
64. It has been pointed out by Mr A.K. Yadav, who has filed supplementary counter affidavit on behalf of the Selection Board and the Government in compliance of the orders passed by this Court on 27.07.2017 that the Board can now make adjustment as the Hon'ble Supreme Court has observed in the judgment and order date 23.08.2017, but the liberty has been granted only for those candidates, who had already been selected, but could not be accommodated for one or the other reason and Hon'ble Supreme Court has clarified that the Board can certainly accommodate such selected candidates in "available vacancies or arising vacancies".
65. It has been argued that the petitioners are non selected candidates or wrongly selected candidates and there is no genuine or valid reason to accommodate the petitioners who were ousted due to lower merit. The petitioners are not meritorious or selected candidates and they have benefited from the windfall due to mistake of the Board. The respondents cannot be allowed to suffer for the mistake of the Board or the magnanimity of this Court in passing the interim order in their favour, and their continuance on the basis of interim order does not create any right in their favour.
66. Mr. R.K. Ojha, learned Senior Advocate has argued that it is settled law that mere filing of writ petitions by the petitioners would not enure to their benefit, if otherwise they were non-selected and had no right to continue or legally enforceable right to a mandamus being issued.
67. This Court is aware that the Hon'ble Supreme Court has settled the law with regard to advantage derived by a litigant by mere filing of writ petitions and being granted the interim order due to sympathetic consideration at the initial stage.
68. The Supreme Court has further in Amarjeet Singh & others Vs. Devi Ratan & others 2010 (1) SCC 417 considered the question as to whether the appellants should be asked to suffer only because of an interim order passed by the Court in a case having no merit at all. The Court has observed in paragraphs 18 to 24 thus:-
"18. In Ram Krishna Verma & Ors. Vs. State of U.P. & Ors., AIR 1992 SC 1888 this Court examined the similar issue while placing reliance upon its earlier judgment in Grindlays Bank Limited Vs. Income Tax Officer, Calcutta & Ors., AIR 1980 SC 656 and held that no person can suffer from the act of the Court and in case an interim order has been passed and petitioner takes advantage thereof and ultimately the petition is found to be without any merit and is dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized.
19. In Mahadeo Savlaram Sheke & Ors. Vs. Pune Municipal Corporation & Anr., (1995) 3 SCC 33, this Court observed that while granting the interim relief, the Court in exercise of its discretionary power should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the Court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss ensued due to the order of injunction granted in favour of the plaintiff. Even otherwise the Court while exercising its equity jurisdiction in granting injunction is also competent to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the Court. The Court can do so in exercise of its inherent jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by the act of the Court in granting injunction restraining the defendant from proceeding with the action complained of in the suit. Such a procedure is necessary as a check on abuse of the process of the Court and adequately compensate the damages or injury suffered by the defendant by act of the Court at the behest of the plaintiff.
20. In South Eastern Coalfields Ltd. Vs. State of M.P. & Ors., AIR 2003 SC 4482, this Court examined this issue in detail and held that no one shall suffer by an act of the Court. The factor attracting applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences.
21. The Court further held :
".28.......Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are later to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated......"
22. Similarly in Karnataka Rare Earth & Anr. Vs. Senior Geologist, Department of Mines & Geology & Anr., (2004) 2 SCC 783, a similar view has been reiterated by this Court observing that the party who succeeds ultimately is to be placed in the same position in which they would have been if the Court would not have passed an interim order.
23. In A.R. Sircar Vs. State of U.P. & Ors., (1993) Supp. 2 SCC 734, the dispute arose regarding the seniority of direct recruits and promotees on the post of Professor of Medicine in a medical college. The appellant therein faced the selection process for direct appointment along with the respondents who had been working on the said post on ad hoc basis. The appellant was duly selected, however, the private respondents could not succeed. The respondents filed the writ petition before the High Court and precluded the appointment of appellant pursuant to his selection, by obtaining the interim order and on the other hand they got their ad hoc promotion to the post regularized under the rules. The appellant could succeed in obtaining the appointment only after dismissal of the writ petition against him after several years of his selection. This Court held that in addition to the relief under the statutory provisions the appellant was entitled in equity to get the seniority over the respondents as they succeed in precluding his appointment to the post by obtaining an interim order in a case having no merits whatsoever.
24. In Arya Nagar Inter College Vs. Sree Kumar Tiwari 1997 (4) SCC 388, the services of the respondent therein were terminated, however, he continued to be in service on the basis of interim order passed by the High Court in the writ petition filed by him. During the pendency of the writ petition, the rules for regularization of ad hoc appointees were amended and in pursuance thereof his services also stood regularized. Ultimately, the writ petition filed by the respondent was dismissed. This Court held that his continuity in service and regularization had to be understood as it was subject to the result of the writ petition. As the writ petition was dismissed the order of regularising of his services, passed during the pendency of the writ petition, became inoperative."
69. This Court is also aware of the Full Bench decision in Prashant Kumar Katiyar vs State of U.P. and others, 2013 (1) ADJ 523, wherein the Full Bench was considering the question with regard to scope of Rule 13 (5) of U.P. Secondary Education Service Selection Board Rules, 1998 and it has referred to in detail the procedure adopted at the time of notification of vacancy by the Secondary Institution to the office of the District Inspector of Schools and the procedure of selection thereafter.
70. This Court observed that if the management has determined the vacancy or the District Inspector of Schools has done it as per Rule 11(4) then in that event the alteration of such determination and intimation is controlled only to the extent as provided by sub-rule (3) of Rule 11 which authorises the management and the Inspector to notify any fresh vacancy that may have occurred after such notification. The management or the District Inspector of Schools therefore has not been empowered under the Rules to reverse the determination and it can only add to it, subject to the contingency as contemplated under sub-rule (3) of Rule 11. Only arithmetical or calculative errors which may have crept into determination may be corrected after notification of vacancy to the Selection Board.
71. The Full Bench in paragraph 39 that no power was conferred for altering the vacancies already determined and intimated to the Board for the purpose of notification under the Act and Rules. The requisition to fill up the vacancies after having sent to the Board therefore becomes unalterable as the Board proceeds with the advertisement under Rule 12 by publishing the vacancy in accordance with reservation rules and in accordance with the subject-wise and group-wise vacancies against which appointments are to be made inviting applications from candidates giving their preference of the institution which choice has to be indicated by the candidate. At this stage, to upset the procedure after advertisement by giving any further leverage would be to disturb the entire process of selection and if such a concession is given, the management can indulge into motivated manipulations which are not uncommon and give rise to uncalled for controversies ending up in litigation.
72. The Full Bench has observed in paragraph 75 the detailed procedure adopted by the Selection Board after vacancies are determined and advertised by it.
73. It has observed in paragraph 75 to 78 as under:
"75. It is equally important for us to survey the exercise that is undertaken by the Board for holding selections. The candidates for the post of teachers are subjected to a written test. The answer sheets are evaluated and according to the marks obtained the merit is prepared by adding marks for special merit as per Rule 12(4). Then comes the stage of interview with 15% marks allotted for the said purpose. The Board is enjoined with the duty at this stage to formulate the ratio of candidates to be called for interview as per Rule 12(6) quoted hereinbefore.
76. The candidates at the time of interview are again required to give their choice as per Rule 12(9) which has already been extracted hereinabove.
77. The above mentioned exercise is a massive operation that consumes time and energy, and if the same is altered midway, the entire edifice will go haywire and might also collapse. This process takes time right from the sorting of applications, the written examinations and the holding of the interview. Each step has to be meticulously observed and any change in the vacancies would directly impinge upon such meticulous calculations that are very likely to disturb the ratio of candidates and their choices as per rule 12(6) and 12(9). This would adversely affect the preparation of the final panel and would require a re-exercise accordingly.
78. The object of such selections is to provide teachers against the posts as soon as possible that would be defeated if the process is interfered with when this exercise has already been undertaken. Institutions should not be asked to wait endlessly and teachers should be appointed timely so as to avoid any inconvenience to the students. To upset this process would be to invite disorder and interrupt the smooth completion of the selection process. It is for this reason as well that we would choose to restrict the right of a dependant to claim appointment on compassionate basis on the post of a teacher after the post has been advertised upto the stage of the last date of receipt of applications. The reason is that upto that stage the process of selection can be modulated by changing the number of vacancies to the extent of providing any benefit that might accrue on account of a claim of compassionate appointment."
74. This Court came to a conclusion that once complicated exercise of selection is under way, the Management cannot exercise its power of recommending appointment by transfer of teachers from another school on vacancy i.e. already notified. The only exception the Full Bench has carved out is with regard to cases of compassionate appointment where dependent of a deceased employee is eligible and otherwise qualified to be appointed as teacher in a vacancy that has occurred after determination and notification to the Board, but before any selection has been finalised and recommendation made of the selected candidate by the Selection Board.
75. The Full Bench in paragraph 80 onwards has considered the scope and intent of Rule 13(5) of the 1998 Rules.
76. Paragraphs 80, 81, 82, 83 and 84 are being quoted herein-below:
"80. We now come to the last lap of this reference relating to the scope and intent of Rule 13(5) of the 1998 Rules. This aspect requires reference to the legal position that existed prior to the introduction of this rule on the statute w.e.f. 23.1.2007.
81. A learned single judge of this court in the case of Smt. Savita Gupta Vs. State 2004 (4) AWC 3119 held relying on a Government Order dated 12.3.2001 that a candidate selected against a particular advertisement could be adjusted any other vacancy that may have been requisitioned and intimated but not advertised. This view was overruled in the case of Satish Kumar Vs. State of U.P. and other reported in 2006 (7) AWC 7570 and it was held that neither a choice can be given nor such a vacancy can be offered which has not been advertised. It was ruled that executive instructions in the shape of a government order cannot amend or supersede statutory rules. This decision was rendered on 22.9.2006.
82. The State Government issued a G.O. on 19.6.2006 (prior to the decision in Satish Kumar's case) again authorising adjustments. This was done after an order was passed in the shape of a general mandamus in the case of Prem Prakash Vs. State writ petition no. 75421 of 2005 decided on 19.2.2006 that had noticed large scale maladjustments resulting in candidates selected by the Board being not appointed. Accordingly to remove these anomalies a mechanism of a committee was adopted to resolve such disputes. Directions were also issued to adhere to the directions dated 25.8.2005 in w.p. no. 46861 of 2005 (Satish Kumar Vs. State of U.P.). Taking shelter of these orders, and the G.O. dated 19.6.2006, the Board proceeded to finalise selections.
83. A large number of irregularities were alleged in the selection process against Advertisement No. 1 of 2005 to which a challenge was raised in the case of Dr. Ramesh Chandra Pandey Vs. State reported in 2007 (7) ADJ Pg. 218. The entire selections were quashed vide judgment dated 24.7.2007 with a direction to prepare a fresh merit on re-evaluation of the written examination and hold interview.
84. It is at this stage that reference has to be made to the introduction of Rule 13(5) in the 1998 Rules that was brought into force on 23.1.2007. This allowed adjustments against vacancies that are "notified" to the Board as would appear from the language of the Rule. It does not use the word advertised. Taking help of this rule, the Board proceeded to comply with the judgment dated 24.7.2007 in the case of Dr. Ramesh Chandra Pandey (supra) and made adjustments vis-a-vis the candidates who were left out from being appointed against the earlier advertisement No. 1 of 2004 against vacancies of advertisement no. 1 of 2005. On account of further adjustment of candidates appointed through other modes like absorption, transfer, promotion and compassionate appointments, the vacancies were either reduced or altered that gave rise to a fresh challenge to the select list and also to the scope of applicability of Rule 13(5) to make adjustments against unadvertised posts. A learned single judge in the case of Raja Ram (supra) decided on 30.11.2009 proceeded to read down Rule 13(5) by declaring that adjustment of a candidate to another institution can be made against a vacancy which has been subject matter of the same advertisement under which the candidate had applied and been selected. While doing so, the learned single Judge also injuncted any other mode of appointment under Section 16, including compassionate appointments, after the vacancy has been notified and advertised by the Board. Thus no other mode of appointment was permitted after the vacancy was notified to the Board."
77. The Full Bench has observed that Rule 13(5) of the Rules of 1998 was framed to facilitate adjustments of selected candidates having faced the Selection Board. This adjustment is against the vacancies notified and advertised. The rule can be invoked only for a candidate selected by the Selection Board and judgments rendered by the Single Judge in Raja Ram's case as approved in the case of U.P. Secondary Education Service Selection Board (supra) were affirmed by the Full Bench and it held that the said cases rightly confined the operation of the Rule in respect of adjustment of posts under the same advertisement. "An unadvertised vacancy cannot be offered to a candidate who had applied for a different advertisement as he has not competed with the candidates of another advertisement. A vacancy that was never advertised also cannot be offered as it would violate Article 14 of the Constitution and to that extent we approve of the view taken by the division bench in the case of Satish Kumar vs State, 2006 (7) AWC 7570."
78. The Full Bench in effect held that once vacancy is determined and notified and advertisement issued and selection under way, then such vacancy cannot be withdrawn or its nature changed. Once selection is held and the Selection Board recommends the candidate for a particular vacancy, but he cannot be appointed because of unforeseen circumstances like adjustment of a dependent of deceased employee, or for any valid reason, then under Rule 13 (5) the Service Selection Board can adjust such selected candidate in another vacancy, which was advertised in the same selection, but could not be filled up due to non-joining of recommended candidate or due to no recommendation being made with regard to the same. Once selection is made and recommendation made, then the Selection Board cannot under Rule 13 (5) direct a for adjustment of a selected candidate in a vacancy, which has arisen thereafter, and has not been advertised in the same advertisement. Therefore, for instance if a candidate is selected for a vacancy notified in Advertisement No. 1 of 2004, then he cannot be adjusted against a vacancy notified for Advertisement No. 1 of 2005.
79. Against this observation limiting the role of the Board regarding adjustment in future vacancies, the Board approached the Supreme Court in Civil Appeal No. 10808 of 2017 (U.P. Secondary Education Service Selection Board vs State of U.P. and others), which was disposed of by the Supreme Court on 23.08.2017 by the observation made in paragraphs 4, 5 and 6 of the said judgment, which is being quoted herein-below:
4. According to the learned counsel, in case the candidates who have reported pursuant to the advice and in case they are not accommodated, their case will have to be dealt with in terms of Rule 13 of the 1998 Rules, which has been amended on 23.01.2007. The amendment, to the extent relevant, reads as follows:-
"Where a candidate selected by the Board could not join in an allocated institution due to non-availability of vacancy or for any other reason, the District Inspector of Schools shall recommend to the Board in any other institution. On receipt of the recommendation of the District Inspector of Schools the Board shall allocate such candidate to another institution in a vacancy notified to the Board."
5. The issue pertains to the candidates who have already been selected but could not be accommodated for want of vacancies. In such cases, it cannot be said that the Board has no power to accommodate them. They will have to be certainly accommodated in available or arising vacancies.
6. The impugned order will stand clarified to the above extent."
80. It has been argued by the learned counsel for the petitioners as well as by Mr A.K. Yadav, learned counsel, who appears for the Board that after clarification issued by the Hon'ble Supreme Court on 23.08.2017, it is apparent that the Selection Board can undertake an exercise of adjustment of selected candidates in future vacancies also.
81. This Court is aware of the decisions rendered by the Hon'ble Supreme Court with regard to adjustment of selected candidates in future vacancies.
82. The Hon'ble Supreme Court has held in the case of Prem Singh and others vs Haryana State Electricity Board and others, 1996 (4) SCC 319 that appointments in future vacancies that have arisen after advertisement cannot be made as it would be violative of Articles 14 and 16 of the Constitution of India.
83. In Prem Singh (supra) 62 vacancies were advertised on 02.11.1991. The Selection Board, however, after considering the latest vacancy position as on 11.02.1993, decided on 02.04.1993 to fill up 147 posts, but appointments were actually given to 138 candidates. It is in this context that the Supreme Court observed in paragraphs 25 thus:
"25. From the above discussion of the case law it becomes clear that the selection process by way of requisition and advertisement can by started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the Court may not, while exercising its extra-ordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case.
(emphasis supplied)
84. The judgment in the case of Prem Singh (supra) was subsequently taken notice of by the Hon'ble Supreme Court in several other judgments viz., State of Orissa and another vs Rajkishore Nanda and others, 2010 (6) SCC 777, State of Jammu and Kashmir and others vs Sanjeev Kumar and others, 2005 (4) SCC 148, Rakhi Ray and others vs High Court of Delhi and others, AIR 2010 Supreme Court 932, and State of U.P. and others vs Rajkumar Sharma and others, 2006 (3) SCC 330. However, in all such matters, the Supreme Court after referring to earlier judgments has observed that though the vacancies cannot be filled up over and above the number of vacancies advertised but in rare and exceptional circumstances and in emergent situation, such a rule can be deviated from but such a deviation is permissible only after adopting a policy decision based on some rationale.
85. Now for a consideration of exceptional circumstances in this particular case at hand, this Court finds that the Select List was declared on 26.08.2011. Certain non-selected candidates like Km. Bhawana and others had filed Writ Petitions questioning the incorrect Answer Key for Question No. 80 with regard to author of novel "Hari Bindi". This Court had directed correction of Answer Key and later on, correction was also made by the Selection Board in the first half of the year 2010. Sandeep Kumar Verma had filed Writ Petition, which was disposed of on 27.11.2012. A direction was issued that the Selection Board may take an appropriate decision on the representation of Sandeep Kumar Verma. The Board took a decision with regard to reevaluation thereafter on 05.12.2012.
86. It has been argued by the learned counsel for petitioners that the Selection Board had no such power to reevaluate but this argument is liable to be rejected in view of the law settled 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, cases relied upon by the learned counsel for the petitioners themselves. The Supreme Court has observed in paragraph 15 onwards in Rajesh Kumar (supra) that even if the writ petitioners before the High Court had not impleaded the selected candidates as party-respondents to their cases and relief of reevaluation of result was also not prayed for, the writ petitioners had in effect questioned not only the process of evaluation of Answer Scripts by the Commission, but specifically averred that the "Model Answer Key", which formed the basis for such evaluation was erroneous. One of the questions therefore that fell for consideration by the High Court directly was whether the "Model Answer Key" was correct. After referring to experts it was found that several answers in the "Model Answer Key" were incorrect. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings.
87. The Hon'ble Supreme Court observed thus:
".....It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key......"
88. Relying upon such observation made in the case of Rajesh Kumar (supra), the Hon'ble Supreme Court in the case of Vikas Pratap Singh (supra) upheld the action of the Selection Board in reevaluating the Answer Scripts.
89. The learned Single Judge, who was considering the writ petition of Vikas Pratap Singh (supra) had observed that a substantial question of public importance had arisen in the matter and therefore, referred the matter to the Division Bench with a request to consider and decide the following question of law of public importance:
"Whether the VYAPM (respondent-Board) after publication of the select list and passing of the appointment orders also on the basis of evaluation of questions, could have done the exercise of re-evaluating the answers after editing and reframing answers, and prepare the second select list for fresh recruitment of the candidates, cancelling the first select list?"
90. The Hon'ble Supreme Court while upholding the decision of the Division Bench that the Selection Board had the power has observed in paragraphs 18 and 19 thus:
"18. In respect of the respondent-Board's propriety in taking the decision of re-evaluation of answer scripts, we are of the considered view that the respondent-Board is an independent body entrusted with the duty of proper conduct of competitive examinations to reach accurate results in fair and proper manner with the help of Experts and is empowered to decide upon re- evaluation of answer sheets in the absence of any specific provision in that regard, if any irregularity at any stage of evaluation process is found. (See: Chairman, J & K State Board of Education v. Feyaz Ahmed Malik and others, (2000) 3 SCC 59 and Sahiti and Ors. v. The Chancellor, Dr. N.T.R. University of Health Sciences and Ors., (2009) 1 SCC 599). It is settled law that if the irregularities in evaluation could be noticed and corrected specifically and undeserving select candidates be identified and in their place deserving candidates be included in select list, then no illegality would be said to have crept in the process of re- evaluation. The respondent-Board thus identified the irregularities which had crept in the evaluation procedure and corrected the same by employing the method of re-evaluation in respect of the eight questions answers to which were incorrect and by deletion of the eight incorrect questions and allotment of their marks on pro-rata basis. The said decision cannot be characterized as arbitrary. Undue prejudice indeed would have been caused had there been re- evaluation of subjective answers, which is not the case herein.
19. In view of the aforesaid, we are of the considered opinion that in the facts and circumstances of the case the decision of re- evaluation by the respondent-Board was a valid decision which could not be said to have caused any prejudice, whatsoever, either to the appellants or to the candidates selected in the revised merit list and therefore, we do not find any infirmity in the judgment and order passed by the High Court to the aforesaid extent."
91. The Hon'ble Supreme Court has in the afore-cited judgments however observed that even though it is settled that a person appointed erroneously on a post must not reap the benefits of wrongful appointment jeopardizing the interests of the meritorious and worthy candidates; in cases where a wrongful or irregular appointment is made without any mistake on the part of the appointee and upon discovery of such error or irregularity the appointee is terminated, the Court had taken a sympathetic view in the light of various factors including bonafide of the candidate in such appointment and length of service of the candidate after such appointment.
92. The Hon'ble Supreme Court relied upon its earlier decisions viz., Vinodan T. vs. University of Calicut, 2002 (4) SCC 726, State of U.P. vs Neeraj Awasthi, 2006 (1) SCC 667, Girjesh Shrivastava vs State of Madhya Pradesh, 2010 (10) SCC 707, Union of India vs Narendra Singh, 2008 (2) SCC 750, Gujarat State Deputy Executive Engineers' Association vs State of U.P. Gujarat, 1994 Supp (2) SCC 591 and Buddhi Nath Chaudhary vs Abahi Kumar, 2001 (3) SCC 328, observed in paragraphs 27, 28, 29 and 30 thus:
"27. Admittedly, in the instant case the error committed by the respondent-Board in the matter of evaluation of the answer scripts could not be attributed to the appellants as they have neither been found to have committed any fraud or misrepresentation in being appointed qua the first merit list nor has the preparation of the erroneous model answer key or the specious result contributed to them. Had the contrary been the case, it would have justified their ouster upon re-evaluation and deprived them of any sympathy from this Court irrespective of their length of service.
28. In our considered view, the appellants have successfully undergone training and are efficiently serving the respondent-State for more than three years and undoubtedly their termination would not only impinge upon the economic security of the appellants and their dependants but also adversely affect their careers. This would be highly unjust and grossly unfair to the appellants who are innocent appointees of an erroneous evaluation of the answer scripts. However, their continuation in service should neither give any unfair advantage to the appellants nor cause undue prejudice to the candidates selected qua the revised merit list.
29. Accordingly, we direct the respondent-State to appoint the appellants in the revised merit list placing them at the bottom of the said list. The candidates who have crossed the minimum statutory age for appointment shall be accommodated with suitable age relaxation.
30. We clarify that their appointment shall for all intents and purpose be fresh appointment which would not entitle the appellants to any back wages, seniority or any other benefit based on their earlier appointment."
93. Both in the case of the Rajesh Kumar (supra) and in the case of Vikas Pratap Singh (supra) almost on similar facts, the Supreme Court has held that candidates, who were selected earlier due to erroneous decision of the Selection Board and who continued to work for sometime on the said post, could not be allowed to suffer because of the error on the part of the Selection Board. At the same time, no candidate could be allowed to earn an undeserved advantage over others by an application of a erroneous Answer Key.
94. In balancing the equities the Hon'ble Supreme Court directed that candidates later on selected by application of rectified Answer Key were to be given appointment and such candidates would earn their seniority from the date the wrongly selected candidates were first appointed in accordance with their merit position. The appointments of such correctly selected candidates after reevaluation of their Answer Scripts should relate back to the date when wrongly selected candidates were first appointed with continuity of service to them for the purpose of seniority, but without any back wages or other incidental benefits.
95. Such candidates, who could not make a grade after reevaluation, i.e. candidates like the petitioners herein should not be ousted from service, but should figure at the bottom of the list of the selected candidates based on the first selection in terms of the advertisement issued, and also all such selected candidates, whose results had been announced after the second selection pursuant to a later advertisement.
96. This Court in respectful deference to the observations made by the Hon'ble Supreme Court in the case of Rajesh Kumar (supra) and in the case of Vikas Pratap Singh (supra) and in Civil Appeal No. 367 of 2017 (Ran Vijay Singh and others vs State of U.P. and others) may also issue such directions for the case of writ petitioners herein.
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.
100. The writ petitions are disposed of.
Order dated: 14.12.2017 Sazia