Allahabad High Court
Sandeep Kumar vs State Of U P And Another on 18 April, 2025
Bench: Ashwani Kumar Mishra, Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:57480-DB Court No. - 29 Case :- SPECIAL APPEAL No. - 303 of 2023 Appellant :- Sandeep Kumar Respondent :- State Of U P And Another Counsel for Appellant :- Ramesh Chandra Dwivedi,Siddharth Khare,Sr. Advocate Counsel for Respondent :- C.S.C.,Siddharth Singhal Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Vipin Chandra Dixit,J.
1. The appellant had applied for appointment to the post of Village Development Officer pursuant to recruitment exercise initiated in the year 2015. Although he had obtained marks above the cutoff in his respective category, yet selection was denied to him on the ground that at the time of interview he had not produced "CCC" certificate, an essential qualification for the post of Village Development Officer. The Commission accordingly did not select the petitioner.
2. Learned Single Judge in a petition filed by the appellant examined the matter but came to the conclusion that since possessing of "CCC" certificate was mandatory and the same was not produced at the time of interview, therefore, he has no right to secure relief prayed in the writ petition. The petition was dismissed on 03.04.2023. Thus, aggrieved the appellant preferred the present appeal.
3. It transpires that the Division Bench while hearing the matter directed the Commission to produce original records. The original records were produced and the Court had passed the following order on 26.05.2023 :-
"The original record of the selection produced by Sri Siddharth Singhal learned counsel for the respondent-Commission has been perused.
Heard learned counsel for the parties and perused the record.
On a pointed query made by the Court, it is admitted by Sri Siddharth Singhal learned counsel for the respondent-Commission, i.e. the recruiting body that the candidates for selection in question were permitted to participate in the interview without furnishing CCC certificate, which was the essential requirement for selection to the post of Village Development Officer. The copy of the original form furnished by the writ petitioner at the time of interview i.e. on 30.06.2016 gave a reference of the CCC certificate possessed by him. However, a dispute has been raised with regard to the said entry in column No.'13' of the above form filled by the petitioner on 30.06.2016.
The statement of the learned counsel for the respondent-Commission is that the entry in column No.'13' of the form, furnished by the petitioner dated 30.06.2016, shows that there is an interpolation as there is a change of ink and writing.
Even if we assume for a moment that the petitioner did not furnish the CCC certificate at the time of interview, as per own statement of the counsel for the respondent-Commission, other candidates including the petitioner herein who did not furnish CCC certificate in original before the Interview Board, were interviewed. It is then sought to be submitted by learned counsel for the respondent-Commission that the participation of the candidates in the interview was subject to the condition of furnishing of CCC certificate. The petitioner was interviewed on 30.06.2016 itself, but there has been no communication that since the petitioner did not furnish CCC certificate before the selection process was over, his candidature would be cancelled. The communication for cancelling of the candidature of the petitioner was never given to him and only on submitting an application dated 11.01.2017 before the Secretary, U.P. Subordinate Services Selection Commission, information was provided about the cancellation of his candidature for non furnishing CCC certificate.
There is no dispute about the fact that the petitioner possessed CCC certificate at the time of interview, which is the requisite qualification. There is no record of any entry of the candidates who had submitted CCC certificate at the time of interview. There is also no record of those candidates who had furnished CCC certificate after the date of interview.
The transparency in the selection process, thus, stood compromised for the reason, as it become convenient for the selection body to take a stand with respect to any of the candidate that he or she had not furnished the requisite certificate during the selection process. The column of entry in the application form are also confusing. On the asking of the Court, learned counsel for the respondent admits that the discrepancies in the application form in the selection process in question have been removed after the year 2017.
Be that as it may, from the original record produced before us, it is evident that the respondent-Commission could not furnish any proof to deny the claim of the petitioner, the noting of the Interview Board or the Scrutiny Officer that the petitioner did not furnish CCC certificate during the course of interview. There is no material on record to demonstrate that the candidates who did not furnish CCC certificate during interview were given any date for furnishing the said certificate. The process which was undertaken by the respondent to ensure that all such candidates who were selected had furnished the CCC certificate before the selection process was over, could not be brought before us.
In the said scenario, we finds substance in the submission of the learned Senior Counsel appearing for the writ petitioner that there was no reason for the petitioner not to furnish the CCC certificate during the course of the selection process which he possessed much before filling of the application form i.e. the last date of the application form mentioned in the advertisement.
After careful consideration of the original record and the contents of the counter affidavit filed by the respondent-Commission, we find that for the lack of transparency in the selection process for the post of Village Development Officer, for the year 2017 conducted by the Commission, the benefit of doubt is to be given to the writ petitioner.
The writ petitioner is fighting for the cause since the year 2017, when the letter dated 18.01.2017 was served upon him informing him that his candidature had been rejected for not furnishing the CCC certificate.
However, the question is as to whether there is vacancy on the post of Village Development Officer, against which the petitioner can be accommodated.
This has to be answered by the learned Standing Counsel for the State who is required to seek instruction and bring the position of the vacancies of the post of Village Development Officer, filled pursuant to the advertisement No.19-Exam-2015 dated 19.10.2015, i.e. the selection-in-question.
The instruction in writing under the signature of the Director, Panchayat Raj, Lucknow, U.P. shall be placed before the Court on the next date fixed. The current vacancy position to the post of Village Development Officer shall also be intimated."
4. Perusal of the above order would indicate that the stand of the respondent that "CCC" certificate was not produced by the appellant was not borne out from the materials placed on record. Specific finding has been returned that the claim of appellant for selection could not have been rejected on the ground of non production of "CCC" certificate. However, consequential relief was not considered by the Division Bench as it wanted to be specified with regard to existence of vacancy against which appellant's claim for selection and appointment could be examined. On the next date of hearing, the Division Bench had passed the following orders in the matter on 27.07.2023 :-
"1. In pursuance of the directions issued by this Court on 26.05.2023, the State has furnished instructions and according to which, there is no vacancy in respect of the recruitment in which the appellant claims to be selected. However, the respondents admit that as on date, there are 712 vacancies on the post of Gram Vikas Adhikari and the process for sending the requisition for filling up these vacancies through the Commission is under progress.
2. The Director, Social Welfare, U.P. Lucknow is directed to clarify his stand as to whether the appellant can be appointed against one of these vacancies and if not, what is the impediment.
3. List as fresh on 17.08.2023."
5. Pursuant to orders of this Court, instructions have been received from the Director, contents whereof reads as under :-
"3- ??????, ???? ??????, ????? ?????? ?????? ????? ???? ?? ??????? ????? ??????? ???? ??? ???? ?? ???? ???? ??? ??????? ???? ??? ???? ?????? ??????? ???? ??? ??????? ?? ??????? ????? ???? ?? ???????? ???????? ????? ????? ????????? ?????? ????? ??????????? ?? ???????? ??? ???? ??? ????? ???? ???? ?????? ????? ???? ?? ????? ?????? ?? ??????????????? ??????????? ?? ???????? ?????? ???? ???? ?? ?????? ??????, ???? ??????, ?????? ??? ????? ???
4- ??? ???? ???? ????? ????? ?? ??? ?? ???? ??????????? ?? ????? ??????? ???? ??? ???? ?? ?????????? ???????? ???? ??????? ???? ??, ?? ???? ???? ????? ????? ?? ???????? ?? ?? ???? ??????????? ?? ????? ?????????? ???????????? ????? ????? ??????? (????) ?? ???? ?? ???????? ?????? ???? ???? ???? ?????? ???? ???? ??? ???? ?? ?????? ?? ????/?????? ???? ???
5- ???? ???? ????? ????? ? ???? ?? ????? ????? ??????? (????) ?? ???? ?? ??????? ???? ??? ???? ?? ????? ??? ???????? ?? ???? ???? ?????/???????? ?????? ???? ???? ?? ?????? ??????, ???? ??????, ????? ?????? ??? ????? ???? ???"
6. It is in the above facts and circumstances that the appeal is liable to be heard finally by us.
7. Sri Ashok Khare, learned Senior Counsel submits that once the Division Bench found that the stand of Commission about appellant having not produced "CCC" certificate was not correct, then the appellant is entitled to consequential relief of appointment.
8. Sri Khare places reliance upon a judgment of the Supreme Court in Manoj Kumar vs. Union of India & Ors. Civil Appeal No. 2679 of 2024, wherein the Supreme Court examined the exigency of similar kind where although claim of the petitioner was accepted yet grant of consequential relief posed difficulty on account of various circumstances. In what way, the restitution is to be allowed in favour of such wronged person has been held to be one of the primary duty of the constitutional Courts. Hon'ble Supreme Court in Manoj Kumar (supra) made following observation in paragraph no. 19 to 24 :-
"19. We are of the opinion that while the primary duty of constitutional courts remains the control of power, including setting aside of administrative actions that may be illegal or arbitrary, it must be acknowledged that such measures may not singularly address repercussions of abuse of power. It is equally incumbent upon the courts, as a secondary measure, to address Sir Clive Lewis, Judicial Remedies in Public Law (5th edn, Sweet and Maxwell 2015). HWR Wade and CF Forsyth, Administrative Law (11th edn, Oxford University Press 2014) 596-597. Peter Cane, 'Damages in Public Law' (1999) 9(3) Otago Law Review 489. Henry Woolf and others, De Smith's Judicial Review (8th edn, Sweet and Maxwell 2018) 1026-1027. the injurious consequences arising from arbitrary and illegal actions. This concomitant duty to take reasonable measures to restitute the injured is our overarching constitutional purpose. This is how we have read our constitutional text, and this is how we have built our precedents on the basis of our preambular objective to secure justice.9
20. In public law proceedings, when it is realised that the prayer in the writ petition is unattainable due to passage of time, constitutional courts may not dismiss the writ proceedings on the ground of their perceived futility. In the life of litigation, passage of time can stand both as an ally and adversary. Our duty is to transcend the constraints of time and perform the primary duty of a constitutional court to control and regulate the exercise of power or arbitrary action. By taking the first step, the primary purpose and object of public law proceedings will be subserved.
21. The second step relates to restitution. This operates in a different dimension. Identification and application of appropriate remedial measures poses a significant challenge to constitutional The Preambular goals are to secure Justice, Liberty, Equality, and Fraternity for all citizens. courts, largely attributable to the dual variables of time and limited resources.
22. The temporal gap between the impugned illegal or arbitrary action and their subsequent adjudication by the courts introduces complexities in the provision of restitution. As time elapses, the status of persons, possession, and promises undergoes transformation, directly influencing the nature of relief that may be formulated and granted.
23. The inherent difficulty in bridging the time gap between the illegal impugned action and restitution is certainly not rooted in deficiencies within the law or legal jurisprudence but rather in systemic issues inherent in the adversarial judicial process. The protracted timeline spanning from the filing of a writ petition, service of notice, filing of counter affidavits, final hearing, and then the eventual delivery of judgment, coupled with subsequent appellate procedures, exacerbates delays. Take for example this very case, the writ petition was filed against the action of the respondent denying appointment on 22.05.2017. The writ petition came to be decided by the Single Judge on 24.01.2018, the Division Bench on 16.10.2018, and then the case was carried to this Court in the year 2019 and we are deciding it in 2024. The delay in this case is not unusual, we see several such cases when our final hearing board moves. Appeals of more than two decades are awaiting consideration. It is distressing but certainly not beyond us. We must and we will find a solution to this problem.
24. It is in this reality and prevailing circumstance that we must formulate an appropriate system for preserving the rights of the parties till the final determination takes place. In the alternative, we may also formulate a reasonable equivalent for restitution of the wrongful action."
9. The judgment in Manoj Kumar (supra) had been followed in subsequent judgment of Supreme Court in Smita Shrivastava vs. State of Madhya Pradesh and Others, 2024 SCC OnLine SC 764. Taking note of the observations made by the earlier Bench on the Manoj Kumar (supra), the Supreme Court made following observations in paragraphs 10 and 11 :-
"10. The situation at hand is clearly covered by the aforesaid observations made by this Court in the case of Manoj Kumar(supra). There is no dispute that the appellant is presently of 59 years of age and can hold the post of Samvida Shala Shikshak Grade-III till the age of 62 years. The High Court took note of the fact that despite a clear-cut finding that the amended rule would not apply in the case of the appellant, the State Government has rejected her legitimate claim by relying on the amended rule. The High Court, on the one hand, thought it fit to proceed with contempt action against the erring officers of the State Government, but at the same time, denied relief to the appellant on the basis of notification dated 21st March, 2018 which makes the amended rule i.e. Rule 7-A effective retrospectively i.e., with effect from 1st January, 2008. This observation of the High Court is in sheer contravention of the findings and conclusions recorded earlier.
11. As a consequence, we are of the firm view that the appellant deserves a direction for restitutive relief along with compensation for the misery piled upon her owing to the arbitrary and highhanded action of the State Government and its officials. Accordingly, the following directions are issued:-
(i) The appellant shall forthwith be appointed to the post of Samvida Shala Shikshak Grade-III or an equivalent post within a period of 60(sixty) days from today.
(ii) The appointment order will be effective from the date on which the first appointment order pursuant to the selection process dated 31st August, 2008 came to be issued.
(iii) The appellant shall be entitled to continuity in service. However, she shall not be entitled to back wages. However, she is granted exemplary cost quantified at Rs.10,00,000/- (Rupees Ten Lakhs only). The above amount shall be paid to the appellant by the State of Madhya Pradesh within 60 days.
(iv) The State Government shall hold an enquiry and recover the said amount of Rs. 10,00,000/-(Rupees Ten Lakhs only) from the officer(s) who were responsible of taking deliberate, illegal, mala fide actions for denying relief to the appellant."
10. Considering the facts and circumstances of the present case in light of the position in law settled by the Hon'ble Supreme Court, we are of the view that the judgment passed by learned Singh Judge dismissing the writ petition cannot be sustained. The appeal consequently succeeds and is allowed. A Writ of Mandamus is issued to the respondent Commission to recommend the name of petitioner for appointment to the post of Village Development Officer.
11. In the event, any fresh requisition for the purpose is required, the Commission shall do the needful. We have also taken note of the stand of the Director as per which they have no objection to the grant of relief to the petitioner. In such circumstances, the respondents in the writ i.e. State of Uttar Pradesh Through Principal Secretary of the Department concerned as well as the petitioner shall ensure that necessary steps are taken to issue appointment letter in favour of the appellant within a period of two months from the date of production of certified copy of this Order.
12. It shall, however, be open for the respondent State to verify the certificates of the appellant and undertake necessary procedure which are to be followed at the time of making fresh appointment. The appellant shall be entitled to consequential benefit in the form as notional seniority as per his merit but he would be entitled to payment of salary and other financial benefits only from the date of his appointment.
13. The appeal is accordingly allowed.
14. In order to facilitate such action, we permit the learned counsel for the appellant to implead the Director, Social Welfare, Government of Uttar Pradesh as third respondent in the appeal. Notice on behalf of newly impleaded respondent is also accepted by learned Standing Counsel. Since the State is already heard in the matter no separate opportunity is required to be given to the newly impleaded respondent i.e. the Director, Social Welfare, U.P. Order Date :- 18.4.2025 sailesh