Allahabad High Court
State Of U.P. Thru' Secretary (Basic) ... vs Akhilesh Kumar Maurya & Others on 4 August, 2010
Author: Ashok Bhushan
Bench: Ashok Bhushan, Virendra Kumar Dixit
Court No. - 2 Case :- SPECIAL APPEAL DEFECTIVE No. - 622 of 2010 Petitioner :- State Of U.P. Thru' Secretary (Basic) Secretariat & Others Respondent :- Akhilesh Kumar Maurya & Others Petitioner Counsel :- M.S. Pipersenia, S.C. Respondent Counsel :- Bhanu Prakash Singh Hon'ble Ashok Bhushan,J.
Hon'ble Virendra Kumar Dixit,J.
Heard.
This is an application praying for condonation of delay of 160 days in filing the appeal. The cause shown in the affidavit filed in support of the delay condonation application is that the judgment was delivered on 22.12.2009 and the petitioners/respondents submitted an application on 16.02.2010 along with the copy of the judgment dated 22.12.2009. Thereafter the Principal D.I.E.T, Lakhimpur Kheri wrote a letter on 16.03.2010 praying for permission and filed special appeal which permission was granted on 05.05.2010 and thereafter the appeal was prepared and filed. Sufficient cause has been shown in the affidavit explaining the delay of 160 days in filing the appeal.
There is no objection from the other side.
The application for condonation of delay is allowed.
Order Date :- 4.8.2010 PAL/C.M. Application No.179065 of 2010 Court No. - 2 Case :- SPECIAL APPEAL DEFECTIVE No. - 622 of 2010 Petitioner :- State Of U.P. Thru' Secretary (Basic) Secretariat & Others Respondent :- Akhilesh Kumar Maurya & Others Petitioner Counsel :- M.S. Pipersenia, S.C. Respondent Counsel :- Bhanu Prakash Singh Hon'ble Ashok Bhushan,J.
Hon'ble Virendra Kumar Dixit,J.
The appellants' counsel is permitted to correct the memo of appeal.
Heard Sri M.S. Pipersenia, learned Additional Chief Standing counsel for the appellants and Sri Anil Tiwari, learned counsel for petitioners/respondents.
With the consent of the learned counsel for the parties the appeal is being heard and disposed of finally.
This special appeal has been filed against the judgment and order of learned Single Judge dated 22.12.2009 by which order learned Single Judge has disposed of the writ petition directing the respondents to consider the candidature of the petitioners. The petitioners/respondents filed the writ petition praying for following relief:--
(i) issue a suitable writ, order or direction in the nature of mandamus directing the respondents to entertain the new mark sheet for purposes of calculating and preparing a merit list for appointment in Special B.T.C. Training Course, 2008.
(ii) issue any order, writ or direction which this Hon'ble Court may deems fit and proper in the circumstances of the case.
(iii) award the cost of this writ petition.
The petitioners' case in the writ petition is that the petitioners were the applicants for the Special B.T.C. Training Course, 2008. The petitioners were not selected for Special B.T.C. Training Course, 2008. The petitioners' case in the writ petition is that they have applied for improvement in their B.ed. Marksheets and their marksheets have been improved and after receiving improved marksheets they made an application to the Director praying that appropriate direction be issued for adding their improved marksheets of B.ed. for their selection in the Special B.ed Course Training, 2008.
Learned Single Judge relying upon the judgment of Sushil Kumar Singh and another Versus State of U.P. and others reported in [2009 (2) ADJ 375] disposed of the writ petition directing the respondents to consider the candidature of the petitioner in accordance with law.
Sri M.S. Pipersenia, learned counsel for the appellants challenging the order contended that the improved marks could not have been considered which was submitted after cut off the date. He submits that the petitioners' candidature was rightly considered and they were not selected on the basis of their marks at the relevant time. He submits that the judgment of Sushil Kumar Singh and another (supra) relied upon by a learned Single Judge does not lay down the correct law. He has placed reliance on a Division Bench judgment in a Special Appeal No.1045 of 2009, the State of U.P. and others Versus Km. Shalini Singh decided on 08.10.2009 in which the Division Bench has set aside the order of learned Single Judge where similar directions were issued.
Sri Anil Tiwari, learned counsel submitted that the only direction was issued by the learned Single Judge for consideration and no prejudice can be said to have been caused to the appellants nor the appellants can be said to be aggrieved by the judgment of learned Single Judge.
We have considered the submissions of the learned counsel for the parties and have perused the record.
The case of the writ petitioners' themselves was that their improved marks be directed to be taken into consideration and their marks be added. The improved marks of the petitioners, were not available at the relevant time nor that was submitted before cut off the date. The learned Single Judge disposed of the writ petition relying on Sushil Kumar Singh's case in which judgment learned Single Judge directed that the better marks obtained by the petitioners be taken into consideration. The Division Bench judgment which has been relied by the learned counsel for the appellants laid down as under:--
"Having appreciated the rival submissions, we find substance in the submission of Mr. Saxena Learned Standing Counsel Undisputedly the revised marksheet on the basis of which the writ petitioner-respondent is laying her claim was obtained after the cut off date. It is further not in dispute that initially the writ petitioner-respondent claimed consideration of her case for admission on the basis of earlier marksheet.
On the face of the above, we are of the opinion that the writ petitioner- respondent shall not be entitled for consideration of her case for admission on the basis of the revised there aspects have not been considered by the learned Single Judge, while passing the impugned order.
It the result, the appeal is allowed and the impugned order passed by the learned Single Judge is set aside."
The Division Bench in the aforesaid case has taken the view that the cases of writ petitioners were not entitled for consideration on the basis of revised marks obtained after cut off the date. The aforesaid Division Bench's judgment is applicable with full force in the present case. The reliance has also been placed on the Supreme Court's judgment reported in 1997 (7) S.C. 287 State of Rajasthan Versus Hitendra Kumar Bhatt which laid down that the candidature which was not eligible on the cut off date, is not entitled for any sympathetic consideration. It was laid down that cut off date cannot be ignored in individual cases. The submission of the learned counsel for the appellants have substance the direction issued by a learned Single Judge for taking into consideration, the improved marks which was claimed to have been filed by the appellants cannot be sustained. The appeal is allowed. The judgment and order dated 22.12.2009 is set aside and the writ petition is dismissed.
Order Date :- 4.8.2010 PAL/