# Manoj Kumar Pandey & others v. State of U.P. and another Opp. parties

- **Citation:** (2006) 2 ILRA 593
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-02-27
- **Case number:** Civil Misc. Writ Petition No. 40736 of 2002
- **Bench:** Dr. B.S. Chauhan, Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-pandey-others-v-state-of-u-p-and-another-opp-parties-40808
- **Pages:** 5

## Headnote

Constitution of India, Art. 226-Right to
appointment-petitioner
appeared
in
competative examination-held for the
Post of A.P.O. result declared on 20.3.99State
Government
send
requisition
26.7.01-petition filed in September 2002
e.g. much after expiry of the life of
waiting list-parity can not be claimed.

Held: Para 9 & 10

The
Hon'ble
Apex
Court
while
considering the case has granted relief
only
to
those
persons
who
had
approached the Court and those were
the persons who had filed the writ
petition before this Court within one
year from the date on which the last
recommendation
had
been
made.
Therefore,
those
persons
had
approached the Court when the select
list/merit list was alive. The case of the
petitioners is quite distinguishable as
they have approached this Court after
more than two months of the expiry of
the select list. Therefore, petitioners
cannot claim the relief which had been
granted to other persons by the Hon'ble
Apex Court.

If some person has taken a relief from
this Court by filing a Writ Petition
immediately after the cause of action
had arisen, petitioners cannot take the
benefit thereof by filing a writ petition
belatedly. They cannot take any benefit
thereof at such a belated stage for the
reason that they cannot be permitted to
take the impetus of the order passed at
the behest of some diligent person.
Case law discussed:
2004 (2) ESC-256
AIR 1979 SC-765
AIR 1981 SC-487
AIR 1983 SC-580
1990 (3) SCC-468
1993 (Suppl.) 1 SCC-632
1997 (6) SCC-721
1996 (3) SCC-225
AIR 1996 SC-1145
AIR 1996 SC-2173
1999 (1) SCC-330
2003 (3) SCC-669
1006 (6) SCC-267

## Text

2 All] Manoj Kumar Pandey and others V. State of U.P. and another
593
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.02.2006

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 40736 of 2002

Manoj Kumar Pandey & others ...Petitioners
Versus
State of U.P. and another ...Opp. parties

Counsel for the Petitioners:
Sri S.P. Pandey
Sri D.P. Shukla

Counsel for the Opposite Parties:
Sri B.N. Singh

Constitution of India, Art. 226-Right to
appointment-petitioner
appeared
in
competative examination-held for the
Post of A.P.O. result declared on 20.3.99State
Government
send
requisition
26.7.01-petition filed in September 2002
e.g. much after expiry of the life of
waiting list-parity can not be claimed.

Held: Para 9 & 10

The
Hon'ble
Apex
Court
while
considering the case has granted relief
only
to
those
persons
who
had
approached the Court and those were
the persons who had filed the writ
petition before this Court within one
year from the date on which the last
recommendation
had
been
made.
Therefore,
those
persons
had
approached the Court when the select
list/merit list was alive. The case of the
petitioners is quite distinguishable as
they have approached this Court after
more than two months of the expiry of
the select list. Therefore, petitioners
cannot claim the relief which had been
granted to other persons by the Hon'ble
Apex Court.

If some person has taken a relief from
this Court by filing a Writ Petition
immediately after the cause of action
had arisen, petitioners cannot take the
benefit thereof by filing a writ petition
belatedly. They cannot take any benefit
thereof at such a belated stage for the
reason that they cannot be permitted to
take the impetus of the order passed at
the behest of some diligent person.
Case law discussed:
2004 (2) ESC-256
AIR 1979 SC-765
AIR 1981 SC-487
AIR 1983 SC-580
1990 (3) SCC-468
1993 (Suppl.) 1 SCC-632
1997 (6) SCC-721
1996 (3) SCC-225
AIR 1996 SC-1145
AIR 1996 SC-2173
1999 (1) SCC-330
2003 (3) SCC-669
1006 (6) SCC-267

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

1. This petition has been filed for a
direction upon the U.P. Public Service
Commission, Allahabad to recommend
the names of the waiting list-candidates
against the existing vacancies of Assistant
Prosecuting Officers, which had been
advertised by Advertisement No. A-5/E1/1997-98.

2.

Learned
counsel
for
the
petitioners has submitted that all the
petitioners had appeared in the written
examination and were also called for
interview. The final select list was
declared on 20th March, 1999 and even
though the names of the petitioners were
not included in the main select list, but
they are hopeful that their names would
be included in the waiting list. The State
Government had sent a requisition to the
Commission to recommend the names of
594 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
the candidates next in order of merit, as
certain candidates did not join the post,
but
the
Commission
expressed
its
inability as the life of the waiting list had
expired. This decision of the Commission
was challenged by 11 candidates by filing
a writ petition in this Court which was
dismissed. The Supreme Court however
granted relief to them by directing that
they
shall
be
considered
by
the
Commission and the State Government,
and would be appointed if otherwise
found suitable and eligible. The said
decision was rendered in Sheo Shyam &
Ors. Vs. State of U.P. & Ors., (2004) 2
ESC 256. The Supreme Court in the said
decision held that the life of the waiting
list which is of one year should be
reckoned from the last date when the
recommendation was made by the State
Government. However, in view of the fact
that after the decision of the Commission
not to send the names to the State
Government as the waiting list had
expired, which decision was the subject
matter of the writ petition before the High
Court, the State Government itself had
sent a requisition of 56 posts, including 11
posts to which the dispute related, and
examinations were held subsequently on
9th November, 2003, the Supreme Court
observed that the career of 11 candidates
cannot be jeopardised, and therefore in
these peculiar circumstances, it directed
that the appointment shall be considered
by the Commission and the State
Government.

3.

Learned
counsel
for
the
petitioners submitted that the same relief
should be granted to the petitioners. From
a perusal of the judgment of the Supreme
Court we find that because of the peculiar
facts and circumstances of the case that
the Supreme Court had granted relief to
the 11 appellants only. The Supreme
Court could have granted relief to all the
candidates in the waiting list subject to
the availability of the vacancies.

4. In the State of Kerla Vs. Kumari
T.P. Roshana & Ors., AIR 1979 SC 765,
the Hon'ble Supreme Court considered
this aspect and observed as under:-

"The root of the grievance and the
fruit of the writ are not individual but
collective and while the ''adversary
system' makes the Judge a mere umpire,
traditionally speaking, the community
orientation of the judicial function, so
desirable in the Third World remedial
jurisprudence, transforms the Court's
power into affirmative structuring of
redress so as to make it personally
meaningful
and
socially
relevant.
Frustration of invalidity is part of the
judicial duty; fulfilment of legality is
complementary. Selection of these thirty
students will not be confined to those who
have moved this Court or the High Court
by way of writ petition or appeal. The
measure is academic excellence, not
litigating persistence. It will be thrown
open to the first thirty strictly according to
merit measure by marks secured."

5. The same view has been
expressed by the Apex Court in Ajay
Hasia
&
Ors.
Vs.
Khalid
Mujib
Sehravardi & Ors., AIR 1981 SC 487; and
Punjab Engineering College, Chandigarh
Vs. Sanjay Gulati & Ors., AIR 1983 SC
580. In Thaper Institute of Engineering &
Technology, Patiala Vs. Abhinav Taneja
& Ors., (1990) 3 SCC 468, the Apex court
considered a case where the High Court
had issued directions to admit the students
who had approached the writ Court,
2 All] Manoj Kumar Pandey and others V. State of U.P. and another
595
ignoring the merit of the students who had
not approached the Court.

The
Hon'ble
Supreme
Court
observed as under:-

"The
High
Court
should
have
directed only two students to be admitted
and that too on merit. Admittedly, there
were more meritorious students than the
respondents, waiting in queue. The High
Court,
thus,
travelled
beyond
its
jurisdiction and not only directed more
students than the institute could absorb
but
also
students
who
were
less
meritorious, to be admitted. No reasons
whatsoever have been given by the High
Court for exercising its extraordinary writ
jurisdiction so peremptorily which has
resulted in injustice, both to the appellantinstitution as well as to the students who
stood higher in merit than all most all the
respondent- students. We refrain from
making any further comment on the
impugned judgment."

6. Similarly, general directions were
issued to give benefit to the students
strictly in accordance with the merit, in
Srawan Kumar & Ors Vs. Director
General of Health Services & Ors, 1993
(Supp) 1 SCC 632. In K.C. Sharma &
Ors. Vs. Union of India & Ors., (1997) 6
SCC 721, a Constitution Bench of the
Hon'ble Supreme Court has considered
the aspect of giving benefit to a particular
person and refusal to grant such benefit
by the High Court to other similarly
situated only on the ground that they had
approached the Court at a belated stage.
The Apex Court held that in such a case
the judgement has to be rendered in rem
and benefit of the judgment should be
given to all other similarly situated
persons.
7. However as seen above, the
Supreme Court in Sheo Shyam & Ors
(Supra)
restricted
the
relief
to
11
appointments only. In this view of the
matter we would not be justified in
granting any relief to the petitioners. This
apart, it must also be noticed that no
specific averment has been made by the
petitioners that their names were included
in the waiting list. All that they have
stated is that they expect that their names
would be included in the waiting list.

8. Further the present petitioners
have filed this writ petition only in
September, 2002 much after the expiry of
one year from the date when the last
recommendation was made on 26th July,
2001. This petition has been filed after the
life of the waiting list came to an end. It is
settled legal proposition that no relief can
be granted to the candidate if he
approaches the Court after expiry of the
Select List. (Vide J. Ashok Kumar Vs.
State of Andhra Pradesh & Ors., JT
(1996) 3 SCC 225; State of Bihar & Ors.
Vs. Md. Kalimuddin & Ors., AIR 1996
SC 1145; State of U.P. & Ors. Vs. Harish
Chandra & Ors., AIR 1996 SC 2173;
Sushma Suri Vs. Government of National
Capital Territory of Delhi & Anr., (1999)
1 SCC 330; & State of U.P. & Ors. Vs.
Ram Swarup Saroj, (2003) 3 SCC 699). It
has been held therein that if the selection
process is over, select list had expired and
appointments had been made, no relief
can be granted by the Court at a belated
stage.

9. The Hon'ble Apex Court while
considering the case has granted relief
only to those persons who had approached
the Court and those were the persons who
had filed the writ petition before this
Court within one year from the date on
596 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
which the last recommendation had been
made. Therefore, those persons had
approached the Court when the select
list/merit list was alive. The case of the
petitioners is quite distinguishable as they
have approached this Court after more
than two months of the expiry of the
select list. Therefore, petitioners cannot
claim the relief which had been granted to
other persons by the Hon'ble Apex Court.

10. If some person has taken a relief
from this Court by filing a Writ Petition
immediately after the cause of action had
arisen, petitioners cannot take the benefit
thereof by filing a writ petition belatedly.
They cannot take any benefit thereof at
such a belated stage for the reason that
they cannot be permitted to take the
impetus of the order passed at the behest
of some diligent person.

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

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

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

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

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

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

15. In view of the above, we are of
the considered opinion that no relief can
be granted to the petitioners. Petition
lacks merit and is accordingly dismissed.
---------
2 All] The Commissioner of Income Tax V. Shri Padampat Singhania
597
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD DECEMBER 1, 2004

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE PRAKASH KRISHNA, J.

I.T.R. No.55 of 1988

The
Commissioner
of
Income
Tax(Central), Kanpur

...Applicant
Versus
Shri Padampat Singhania (HUF,) Kanpur

 ...Respondent

Counsel for the Applicant:
Sri Shambhoo Chopra
S.C.

Counsel for the Respondent:
Sri V.K. Upadhyay

Income Tax Act-1922-Section-28 (1)(C)-
Imposition of penalty of Rs.50,000/- by
order dated 7.12.76 on reference of
assessment
year
1947-48-Appellate
Assistant
Commissioner
deleted
the
penalty on the ground of 20 years
inordinate delay-held-proper.

Held: Para 10

Applying the principles laid down in the
aforesaid cases to the facts of the
present case, we find that by no stretch
of imagination long period of 20 years
can be said to be a reasonable time for
imposing penalty. The explanation given
by the Department for the inordinate
delay did not amount to reasonable
cause. In this view of the matter, we are
considered opinion that the Tribunal has
not committed any error in cancelling
the penalty imposed under Section 28
(1)(c) of the Act.
Case law discussed:
(1962) 46 ITR 452
(1870) 76 ITR 653
(1967) 65 ITR 491
(1970) 75 ITR 698
(Delivered by Hon'ble R.K. Agrawal, J.)

1. The Income Tax Appellate
Tribunal, Allahabad has referred the
following questions of law under Section
256(2) of the Income Tax Act, 1961,
hereinafter referred to as the Act, for
opinion to this Court.

"(1) Whether on the facts and in the
circumstances
of
the
case,
the
penalty under section 28(1)(c) has
rightly
been
cancelled
by
the
Tribunal?

(2) Whether on the facts and in the
circumstances
of
the
case,
the
Tribunal is justified in ignoring the
reasonable cause for inordinate delay
in imposing penalty under section 28
(1)(c) and in holding that the case of
the assessee falls within the purview
of the decisions of the Hon'ble High
Court in the case of Ram Kishan
Baldeo Prasad Vs. CIT(65 I.T.R.-
491) and in the case of Bisheshwar
Lal Vs. ITO(75 ITR-698)?"

Briefly stated the facts giving rise to
the present Reference are as follows:-

2. The reference relates to the
Assessment Year 1947-48. The Income
Tax Officer completed the assessment for
the aforementioned assessment year under
Section 23(3)/34 of the Indian Income
Tax Act, 1922, hereinafter referred to as
the Act of 1922 on 28th March, 1956. The
status of the respondent was taken as
HUF. The addition of Rs.1,20,000/- was
added to the total income. The Income
Tax Officer initiated the proceedings
under Section 28(1)(c) under the Act of
1922. He imposed a sum of Rs.50,000/- as
penalty vide order dated 7.12.1976.