# Rishabh Mishra & Ors v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 1141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-20
- **Case number:** Service Single No. 8056 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rishabh-mishra-ors-v-state-of-u-p-ors-47642
- **Pages:** 23

## Headnote

A. Service Law - Constitution of
India,1950-Article
226-challenge
to-
publication of ATRE 2019 flawed answer
key-the writ petitions placed in Group-A
candidates who were vigilant before the
Court upto the date of decision of Division
bench
in
Abhishek
Srivastava
order
granted
one
mark
to
each
of
the
petitioners, if the award of one mark to
any of the petitioners in Group-A, they
find place in the merit list, the would get
the appointment, whereas those in GroupB are dismissed who instituted their writ
petitions after the judgment in Abhishek
Srivastava, is dismissed.(Para 1 to 42)

The writ petition is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,943 of 72,926. This is a partial read: ask again with offset=39943 for what follows._

1 All. Rishabh Kumar & Ors. Vs. State of U.P. & Ors.
1141
exceeding the authority conferred under
Act, 1972 and Rules, 1981.

(ii.) Respondents are directed to issue
NOC to all the petitioners recommended by
the Selection Committee.

(iii.)
All
those
Petitioners
prohibited, in view of the Government
Order dated 4 December 2020, from
participating in the counselling, shall
appear for counselling on the date to be
notified by the Board.

(iv.)
Petitioners
shall
be
given
appointment and placement of district
strictly in accordance with Rules, 1981.

(v.) This order shall apply to all the
candidates who have not approached this
court but are affected by the impugned
Government Order.

(vi.) The afore-noted orders shall be
complied by the respondents within four
weeks from the date of supply of copy of
this order.

No Cost.
----------
(2022)01ILR A1141
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.12.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Service Single No. 8056 of 2020
Along with other 146 connected cases.

Rishabh Mishra & Ors. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Lalta Prasad Misra, Amit kr. Singh Bhadauriya,
Prabhakar Srivastava

Counsel for the Respondents:
C.S.C., Ajay
A. Service Law - Constitution of
India,1950-Article
226-challenge
to-
publication of ATRE 2019 flawed answer
key-the writ petitions placed in Group-A
candidates who were vigilant before the
Court upto the date of decision of Division
bench
in
Abhishek
Srivastava
order
granted
one
mark
to
each
of
the
petitioners, if the award of one mark to
any of the petitioners in Group-A, they
find place in the merit list, the would get
the appointment, whereas those in GroupB are dismissed who instituted their writ
petitions after the judgment in Abhishek
Srivastava, is dismissed.(Para 1 to 42)

The writ petition is partly allowed. (E-6)

List of Cases cited:
1. Abhishek Srivastava & 14 ors. Vs St. of U.P. &
2 ors., Spl. Appl.Def. No. 343 of 2021

2. Ran Vijay Singh & ors. Vs St. of U.P. & ors.
(2018) 2 SCC 357

3. Malcom Lawrence Cecil D'Souza Vs U.O.I. &
ors. (1976) 1 SCC 599

4. U.P.Jal Nigam & anr. Vs Jaswant Singh & anr.
(2006) 11 SCC 464

5. Harwindra Kumar Vs Chief Eng., Karmik &
ors. (2005) 13 SCC 300

6. Km Rashmi Mishra Vs M.PPSC & ors. (2006)
12 SCC 724

7. Ranjan Kumar & ors. Vs St. of Bih. & ors.
(2014) 16 SCC 187

8. In Re Cognizance for Extension of Limitation,
Misc. Appl. No. 665 of 2021 in SMW(C) No. 3 of
2020

(Delivered by Hon'ble J.J. Munir, J.)

1. These are a bunch of 147 writ
petitions, where the petitioners, who are all
candidates appearing in the Assistant
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
Teachers Recruitment Examination, 2019,
have made it common cause to assail the
result of the selection and consequent
appointment of the luckier amongst them
on ground that the answer key published on
08.05.2020 is patently flawed. There is
much variety to the manner and the extent
these petitioners want the Court to
scrutinize the recruitment examination, but
in substance, all of them say that they have
been evaluated on the basis of a flawed
answer key that has led to an actionable
aberration in the result. All the writ
petitions, despite the variety and the extent
of relief claimed, raise common questions
of fact and law and are, therefore, being
decided by means of this common
judgment and orders. The writ petition
preferred by Rishabh Mishra and others,
being Service Single No.8056 of 2020, has
been heard as the leading case along with
all the other connected writ petitions and is
being decided as such.

2. Heard Dr. Lalta Prasad Mishra
along with Mr. Amit Kumar Bhadauria,
Mr. Sudeep Seth, learned Senior Advocate
assisted by Mr. Avdhesh Shukla, Mr.
Onkar Singh, Mr. Jitendra Bahadur, Mr.
Anash Sherwani holding brief of Mr.
Amrendra Nath Tripathi, Mr. Alok Kr.
Misra, Mr. I.M. Pandey Ist, Mr. Rudra
Kumar Tiwari, Mr. Avinash Pandey, Mr.
Ram Singh, Mr. Arun Kumar Verma, Mr.
Rajeiu Kumar Tripathi, Mr. Farooqahmad,
Mr. Raj Priya Srivastava, Mr. Srideep
Chatterjee, Mr. Prakhar Misra, Mr. Rajeev
Narayan Pandey, Mr. Deepak Singh, Mr.
Arvind
Kumar
Tiwari,
Mr.
Suyesh
Pradhan, Mr. Nitin Kumar Mishra, Mr.
Arun Kumar Mishra, Mr. Dileep Kumar
Tiwari, Mr. Rakesh Kumar Singh, Mr. Anil
Kumar Maurya, Mr. Rajesh Kumar Pathak,
Mr. Shitla Prasad Tripathi, Mr. Saurabh
Shukla, Mr. Om Chandra Sahu, Mr. Piyush
Kumar Giri, learned Counsel for the
petitioners in different writ petitions. Mr.
Raghvendra Singh, the learned Advocate
General assisted by Mr. Ran Vijay Singh,
learned Additional Chief Standing Counsel
has been heard on behalf of the State and
Mr.
Ajay
Kumar,
learned
Counsel
appearing for the U.P. Basic Education
Board in the leading case, has also been
heard.

3. The State of Uttar Pradesh on 9th
of November, 2017 amended the Uttar
Pradesh
Basic
Education
(Teachers)
Service Rules, 19811. The said amendment
to the Rules was called the Uttar Pradesh
Basic Education Board (Teachers) Service
(Twentieth Amendment) Rules, 20172. By
the Twentieth Amendment, changes were
introduced to Rule 2(1) and Rule 8 of the
Rules of 1981. The ''Assistant Teacher
Recruitment Examination' was introduced
vide clause (w), the 'Qualifying Marks of
Assistant
Teacher
Recruitment
Examination' were provided for vide clause
(x) and the 'Guidelines of Assistant Teacher
Recruitment Examination' were envisaged
under clause (y). These clauses (w), (x) and
(y) were added to Rule 2(1) of the Rules of
1981.
Pursuant
to
the
Twentieth
Amendment,
the
Assistant
Teacher
Recruitment Examination, 2018 was held,
where 68,500 posts were advertised. The
selection and recruitment process ran its
full course and ended on 05.10.2018 with
the
appointment
of
41,556
selected
candidates. There is no issue about that
selection here.

4. The next process of selection under
the Rules of 1981, as amended by the
Twentieth Amendment, was initiated on
01.12.2018.
On
occasion,
the
State
Government issued fresh guidelines carried
in the Government Order of 1st December,
1 All. Rishabh Kumar & Ors. Vs. State of U.P. & Ors.
1143
2018.
The
recruitment
process
that
commenced in terms of the Government
Order dated 1st December, 2018 is called
Assistant
Teacher
Recruitment
Examination,
20193.
Under
the
Recruitment Examination of 2019, 69,000
posts of Assistant Teaches were advertised.
It is this recruitment, that is subject matter
of the present batch of writ petitions. It
must be remarked here that the Recruitment
Examination of 2019 has not landed in
Court for the first time. It has had a very
troubled course in the past too, with
varying issues being raised in challenge to
its validity.

5. On 05.12.2018, guidelines for the
Recruitment Examination of 2019 were
issued by the Government, acting on the
permission
granted
by
the
State
Government on 01.12.2018. The Secretary,
Examination Regulatory Authority, U.P.,
Allahabad
issued
an
advertisement,
notifying the Recruitment Examination of
2019. The petitioners, all of whom assert to
be eligible to stake their candidature for the
post of an Assistant Teacher in the
Recruitment Examination of 2019, applied
and participated in the written examination,
that was held on 06.01.2019. The cutoff
marks for selection were declared on
07.01.2019, which seems to have invited
the first spate of litigation. The provisional
answer key was published on 8th January,
2019 and objections thereto were invited.
11th January, 2019 was the last date for
lodging objections to the provisional
answer key. On May the 8th, 2020, the
final answer key was issued followed by
declaration of results on 11th May, 2020.

6. On 13th of May, 2020, a
notification was issued, declaring the dates
for registration and counselling of the
selected candidates. The writ petition,
giving rise to the leading case, was filed on
18th of May, 2020 to be joined in the
enterprise of challenge with another 24 writ
petitions at the instance of single and
multiple writ petitioners. These other writ
petitions were Service Single Nos.8224 of
2020, 8225 of 2020 etc., making for a total
of 25 petitions. The record of the leading
case shows that on 20th May, 2020 a day's
time was granted to respondent nos.1, 3 and
4 to file a short counter affidavit,
dispensing with notice to respondent nos.5,
6 and 7 at that stage. This petition was
directed to come up on 22.05.2020. On
22.05.2020 and 28.05.2020, some further
orders
were
passed,
requiring
the
respondents to file a counter affidavit,
clarifying the dispute about the key answer
to the questions that were under challenge.
The reference to those questions, that are
impugned, would figure later in this
judgment. It would also figure later how
the controversy about the validity of at least
four questions has now shrunk to a mere
one.

7. Nevertheless, a short counter
affidavit dated 28th May, 2020 was filed on
behalf of the State Council of Educational
Research and Training, U.P., Lucknow
through its Director and the Examination
Regulatory Authority, U.P. through its
Secretary. The leading case, along with the
other 24, was taken up before this Court on
03.06.2020, when, by a very detailed
interim order, a learned Single Judge of this
Court
stayed
the
notification
dated
08.05.2020, carrying the final answer key
relating to the Recruitment Examination of
2019. All proceedings pursuant to the
notification dated 08.05.2020 were also
ordered to be stayed till the next date of
listing. The objections to the various key
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
answers, that were put in by candidates
pursuant to publication of the provisional
answer key, were referred to a panel of
experts. The respondents were directed to
file the report received from the panel of
experts before the Court on affidavit. It was
ordered that the provisional answer key,
along with objections thereto, be referred to
a panel of experts to be appointed by the
Secretary, University Grants Commission,
New Delhi. There were detailed directions
and a calendared schedule, according to
which, the panel of experts were to be
appointed by the U.G.C., for rendering
their opinion and it being laid before this
Court. Notice was also issued to respondent
nos.5, 6 and 7 in the leading petition.

8. The interim order dated 03.06.2020
was
challenged
by
the
Examination
Regulatory Authority and the other State
respondents by means of Special Appeal
nos.154 of 2020, 156 of 2020 and 157 of
2020. A Division Bench of this Court, vide
order
dated
12.06.2020,
stayed
the
operation of the order dated 03.06.2020
passed in the leading case and the
connected matters.

9. The petitioners in the leading case
challenged the interim order passed by the
Division Bench in Special Appeal no.154
of 2020 through Petition for Special Leave
No.7884 of 2020 before the Supreme
Court. Their Lordships, however, dismissed
the Special Leave Petition with a request to
the Division Bench to dispose of the
pending appeals as early as possible and
preferably, within a period of two months.

10. Special Appeal nos.154 of 2020,
156, 2020, 157 of 2020 and 160 of 2020
were taken up together by the Division
Bench, with their Lordships of the Division
Bench being of opinion that the Single
Judge may be requested to decide the writ
petitions on merits expeditiously. The
Division Bench, therefore, directed that the
Single Judge shall make an endeavour to
consider and decide all the pending writ
petitions on merits at an early date. It was
also clarified that all pleas raised in the
Special Appeals are left open, including the
plea about impleadment of necessary
parties. It was added as a word of
clarification that this Court, while deciding
the writ petitions, would not be influenced
by the interim order dated 03.06.2020 as
well as the interim order of the Division
Bench dated 12.06.2020, passed in the
Special Appeals. These orders, disposing of
the Special Appeals, were passed by the
Division Bench on 1st of February, 2021. It
is in consequence of the orders of the
Division Bench that these writ petitions
have come up before this Court.

11. While all these developments took
place before this Court at Lucknow, a batch
of writ petitions was also filed at Allahabad
mounting a challenge to the key answers
under reference carried in the final answer
key published on 08.05.2020. The batch of
writ petitions, that were heard at Allahabad
in Rohit Shukla and 110 others4,
comprised other connected writ petitions.
The petitions were dismissed by a learned
Single Judge at Allahabad vide a judgment
and order dated 07.05.2021. The judgment
of
the
learned
Single
Judge
dated
07.05.2021 in Rohit Shukla and others
(supra) was challenged by the unsuccessful
writ petitioners vide Special Appeal no.343
of 2021 along with a batch of 42 appeals.
These appeals came to be disposed of by a
common
judgment
and
order
dated
25.08.2021.
Their
Lordships
of
the
Division Bench declined to interfere with
the answer key vis-à-vis five of the six
questions that were put in issue on appeal,
1 All. Rishabh Kumar & Ors. Vs. State of U.P. & Ors.
1145
numerically reducing the challenge that
was laid before the learned Single Judge,
where it was a figure of nine in the key. At
the hearing of the appeal, the key answers
to Question Nos.47, 48, 54, 106 and 111
were tested with reference to authoritative
texts and material and held not to be so
palpably
wrong
that
may
call
for
interference by the Court. All these key
answers refer to Question Booklet Series
'A'
and
have
corresponding
varying
numbers in Question Booklet Series 'B', 'C'
and 'D', but with the same content. The
Division Bench, nevertheless, sustained the
challenge with reference to Question No.60
in the Booklet Series 'A', which bears a
different number in Booklet Series 'B', 'C'
and 'D'. So far as the answer carried in
answer key to Question No.60 in Booklet
Series 'A' is concerned, the Division Bench
held the key answer to be wrongly selected.
The learned Single Judge's judgment to that
extent was modified in terms of orders that
can be best expressed in the words of their
Lordships of the Division Bench in
Abhishek Srivastava and 14 others vs.
State of U.P. and 2 others5. These
directions read:

"As an outcome of the discussion
aforesaid, we find reason to cause
interference in the judgement of the
learned Single Judge limited to Question
No. 60 and not for in any other questions
for which objections have been raised by
the appellants.

It is stated that selections have
already
been
finalized
followed
by
appointments but merely for that reason,
the candidates having a case in their
favour cannot be deprived to get benefit.
Keeping in mind that selections have
already been completed followed by
appointments, direction in these appeals
would apply only to those candidates
who have raised the issue by maintaining
a writ by now and not to any other
candidate. The benefit to the candidates
therein also would be if they are short of
one mark because the value of each
question is of one mark.

The matter is not referred to the
expert for its examination finding that
answer to Question No.60 was not
correctly selected. The issue could not
even be contested by the respondents thus
to avoid further delay in the matter, we
direct the respondents to take a decision
appropriately to award one mark to the
litigants till date.

To avoid any complication, the nonappellants can give value of one mark to
the litigants for Question No.60 which
otherwise can be with deletion to increase
the
value
of
all
the
questions
proportionately but then it may open a
Pandora and this Court do not intend to
disturb the appointments already made
thus direction is kept limited to the writ
petitioners. If with award of one mark to
any of the litigants till date before
Allahabad High Court, they find place in
the merit, then the respondents would
give
them
appointment,
subject
to
satisfaction of other conditions, if any.

The exercise aforesaid would not
effect in any manner the selection or
appointments already made. The benefit
would be given to the appellants and the
writ petitioners, if they are short of one
mark and not otherwise. If any of the
litigant till date are short by two marks in
the merit, they would not be entitled to any
benefit of this judgment.

With the aforesaid direction, all the
appeals are disposed of after causing
interference in the impugned judgment
limited to Question No. 60."
1146 INDIAN LAW REPORTS ALLAHABAD SERIES

12. It must be remarked here that
before this Court, the learned Counsel
appearing for the petitioners, in the
multitude of writ petitions including the
leading case, have assailed the answer key
impugned, insofar as it relates to Question
No.60 of Booklet Series ''A'. The said
Question bears numbers 87, 115 and 143 in
Booklet
Series
''B',
''C'
and
''D',
respectively. Thus, challenge to the other
answers in the answer key that was a figure
of six before the Division Bench in
Abhishek Srivastava (supra), is confined
to Question No.60 alone.

13. It must also be recorded that in
the writ petitions, challenge was raised to
other questions as well, as would appear
from a perusal of Paragraph No.19 of the
writ, giving rise to the leading case. There,
the key answers, with reference to
Question nos.39, 70, 130 and 143 of
Question Booklet Series ''D', have been
assailed in Paragraph Nos.20, 21, 22 and
23. But at the hearing, as already said, the
writ petitioners confined their submissions
to the answer key vis-à-vis Question
No.60 of the Question Booklet Series ''A'
(corresponding to Question Nos.87, 115
and 143 in Question Booklet Series ''B',
''C' and ''D', respectively). Now, Question
No.60 in Question Booklet Series ''A'
reads:

"60."Educational
administration
provides
appropriate
education
to
appropriate student by appropriate teacher
by which they can able to become the best
by using available maximum resources."
This definition is given by

(1) S.N. Mukherjee

(2) Cambell

(3) Welfare Grahya

(4) Dr. Atmanand Mishra"

14. The impugned answer key,
relating to Question No.60, a copy of which
finds place, amongst others, as Annexure
no.2 in Service Single No.8071 of 2020,
shows the correct option to be: "(3)". The
third option in the Question Booklet Series
''A' is ''Welfare Grahya', the other options
being: (1) S.N. Mukherjee; (2) Cambell;
and (4) Dr. Atmanand Mishra. The
contention of the learned Counsel for the
petitioners, in all these cases, is that all the
options in the impugned answer key to
Question No.60 of Question Booklet Series
''A' and the corresponding questions in the
other Question Booklet Series, where the
relative answer key carry the same option,
are all patently wrong. It is argued that the
suggested option ''Welfare Grahya' is so
manifestly wrong, that it cannot be a
possible option.

15. There is a reference to a Treatise,
called ''Educational Administration and
Management' by I.S. Sindhu, a xerox copy
of which (relevant part) is annexed as
Annexure no.10 to Service Single No.8071
of 2020, where the subject matter of
Question No.60 in Question Booklet Series
''A' finds place at Page No.105 of the paper
book of this petition. The quote is credited
to the original idea, authorship and words
of "Graham Balfour". Likewise, in the
leading case, in Question Booklet Series
''D', the corresponding number of Question
No.60 of Question Booklet Series ''A' is
Question No.143. The impugned answer
key, relative to Question Booklet Series
''D', is Annexure no.1 to this petition and
the answer to Question No.143 of this
series shown is Option No.3. The said
option is the same as the one given out as
the correct answer in the impugned answer
key relating to Question Booklet Series ''A',
where it figures as Question No.60. This
1 All. Rishabh Kumar & Ors. Vs. State of U.P. & Ors.
1147
answer is common to the other two
Question Booklet Series ''B' and ''C'.

16. The issue, whether the impugned
key answer to Question No.60 is without
doubt and palpably a wrong answer, so as
to be amenable to the Court's interference,
fell directly for consideration of the
Division Bench in Abhishek Srivastava
(supra). Their Lordships of the Division
Bench in Abhishek Srivastava held:

"Now comes Question No. 60 and is
quoted hereunder:

"60.
Educational
administration
provides
appropriate
education
to
appropriate student by appropriate teacher
by which they can able to become the best
by using available maximum resources"
This definition is given by;

(1) S.N. Mukherjee

(2) Carnbell

(3) Welfare Grahya

(4) Dr. Atmanand Mishra"

The
answer
selected
by
the
respondents is option no.3 whereas none of
the answer is correct, according to the
appellants. The material used by the expert
and produced even by the respondents
shows that name of the author is not
correctly mentioned. The name of the
author is "Graham Balfour" whereas it is
mentioned as "Welfare Grahya". In view of
the aforesaid, learned counsel for the
appellants submit that option No.3 was
wrongly selected by the respondents to be
the correct answer. The material relied by
the
appellants
is
the
Educational
Administration
and
Health
Education.
Relevant part of the document is quoted
hereunder:

"Educational
administration
is
to
enable the right pupils to receive the right
education from the right teachers, at a cost
within the means of the state under
conditions which will enable the pupils best
to profit by their training-Graham Belfour"

It is also Educational Administration
handbook by Graham Balfour and the same

s also quoted hereunder:

"Graham Balfour

Educational Administration

Two Lectures Delivered Before the
University of Birmingham in February,
1921"

Learned
counsel
for
the
nonappellant could not contest the issue. It is
submitted that the correct answer to
Question No. 60 is ''Graham Balfour' and
answer No. 3 is close to the aforesaid,
thus, taken it to be the correct answer.
We find that correct name of the author
has not been given in any of the option.
In
those
circumstances,
respondents
could not have taken option No.3 to be
the correct answer when the name of the
author is "Graham Balfour" and not
"Welfare Grahya".

In view of the aforesaid, we find
substance in the argument of learned
counsel for the appellants as otherwise it
could not be contested by the non-appellant
looking to the name given in option No.3,
different than the name exist in the books
even referred by the expert. During the
course of argument also, the material relied
by the respondents shows the correct name
to be "Graham Balfour" whereas the option
taken by the respondents is "Welfare
Grahya". The selection of option No.3
suffers from the error on the fact of it thus,
could not be contested by the non-appellant
and, therefore, we cause interference in the
judgment of the learned Single Judge in
regard to answer to Question No.60. The
appropriate direction would be given at the
end of the judgment in reference to
Question No.60."
1148 INDIAN LAW REPORTS ALLAHABAD SERIES

17. It is submitted by the learned
Advocate General that the answer key in
relation to Question No.60 of Question
Booklet
Series
''A'
(and
the
corresponding
numbers
in
other
Question Booklet Series) has not been
demonstrated to be palpably wrong. He
says that if it is a case of doubt about the
answer key being correct or incorrect,
the doubt has to be held in favour of the
Examination Authority. In support of
this submission, much reliance has been
placed by the learned Advocate General
on the decision of the Supreme Court in
Ran Vijay Singh and others v. State of
Uttar Pradesh and others6. In Ran
Vijay Singh, it has been held:

"30. The law on the subject is therefore,
quite clear and we only propose to highlight a
few significant conclusions. They are:

30.1. If a statute, Rule or Regulation
governing an examination permits the reevaluation of an answer sheet or scrutiny of
an answer sheet as a matter of right, then the
authority conducting the examination may
permit it;

30.2. If a statute, Rule or Regulation
governing an examination does not permit reevaluation or scrutiny of an answer sheet (as
distinct from prohibiting it) then the court
may permit re-evaluation or scrutiny only if it
is demonstrated very clearly, without any
"inferential process of reasoning or by a
process of rationalisation" and only in rare or
exceptional cases that a material error has
been committed;

30.3. The court should not at all reevaluate or scrutinise the answer sheets of a
candidate--it has no expertise in the matter
and academic matters are best left to
academics;

30.4. The court should presume the
correctness of the key answers and proceed
on that assumption; and

30.5. In the event of a doubt, the
benefit should go to the examination
authority rather than to the candidate."

18. It is submitted on the merits of the
key answer to Question No.60 that it is not
palpably wrong. Dilating on the reasoning
why the impugned answer key is not
palpably wrong vis-à-vis Question No.60
of Question Booklet Series ''A' (including
Question Booklet Series ''B', ''C' and ''D'), it
is urged that in English culture, the
surname is often written first. The learned
Advocate General says that ''Welfare
Grahya' is in fact the same as ''Graham
Balfour'. It is also argued that it is a test of
the candidates' imagination, who were
expected to reckon the correct option in the
impugned
answer
key,
that
had
resemblance to the correct answer.

19. This Court must remark that the
submissions of the learned Advocate
General asking this Court to accept
''Welfare Grahya' as some kind of an
understandable
language
mutant
of
''Graham Balfour', is incorrect to its face.
For one, it is a proper noun and it is wellknown that there are no synonyms of a
proper noun, unless the case is that a
particular proper noun in another language
has a known and reputed equivalent. For
instance, Maharaja Puru in times of
Alexander was called by Greeks as Porus.
If there were an answer where Puru and
Porus were substituted as one for the other
as the correct answer to a question about
history or related subject, may be the logic
that the learned Advocate General puts
forth would apply. There is not the slightest
evidence to suggest that ''Welfare Grahya'
is any kind of a name given to ''Graham
Balfour' in India. This is not even the case
that the State urges. The learned Advocate
General wants the candidates to draw
1 All. Rishabh Kumar & Ors. Vs. State of U.P. & Ors.
1149
heavily
on
their
imagination
and
conjecture, going by the phonetics of it that
''Welfare Grahya' is the same thing as
''Graham Balfour'. In our clear opinion, this
is not a case where the Expert Committee
or any expert for that matter, would have
the last say. The impugned answer that
figures in the answer key, in our considered
opinion, is so palpably wrong that it is the
law that would have the last say; not the
expert.

20. The issue whether ''Graham
Balfour' and ''Welfare Grahya' are one and
the same thing, and ''Welfare Grahya' could
be the right answer, has already been gone
into and decided by the Division Bench in
Abhishek Srivastava, to which allusion
has
been
made
hereinbefore.
Their
Lordships of the Division Bench have
relied on source material being a Treatise,
called ''Educational Administration and
Management', a Handbook by ''Graham
Balfour' to conclude that the correct answer
was ''Graham Balfour' and not ''Welfare
Grahya'. The quote, that is subject matter of
Question No.60, is credited to ''Graham
Balfour' and the Division Bench has held
that the correct name of the author has not
been given in any of the four options
carried in the answer key relative to
Question No.60 in Question Booklet Series
'A' (including the corresponding question
numbers in the other Question Booklet
Series). Thus, in the considered opinion of
this Court, the answer to Question No.60 of
Question Booklet Series ''A' (corresponding
to other question numbers in different
Question
Booklet
Series)
cannot
be
regarded as correct. The issue stands
concluded by the decision of the Division
Bench in Abhishek Srivastava (supra).

21. The learned Counsel for the
petitioners, therefore, seek extension of the
same benefit to the petitioners as that given
to the writ petitioners, who were before the
Court in Abhishek Srivastava. It is argued
by those petitioners, who had instituted the
writ petitions before the decision of the
Division Bench in Abhishek Srivastava,
that is to say, before 25.08.2021 that they
are entitled to the benefit of the said
decision.
The
other
petitioners,
who
instituted their writ petitions after the
decision in Abhishek Srivastava, also
contend that they are entitled to the benefit
of the said judgment.

22. The learned Advocate General has
questioned the petitioners' claim on the foot
of the submission that those petitioners, who
did not file objections to the answer key
within time allowed after publication of the
provisional answer key, are not entitled to
relief. It is submitted that those candidatesturned-petitioners, who did not bother to
submit
their
objections
against
the
provisional answer key after declaration of
that key by the Authorities, do not have a
right to challenge the validity of the
impugned answer key. It is submitted that
those petitioners, who have instituted writ
petitions without submitting their objections
to the provisional answer key, are no more
than fence sitters, who are not vigilant about
their rights. The learned Advocate General
has drawn inspiration from the maxim "lex
vigil lantibus non dor meintibus subvemit",
which means that the law helps the vigilant
and not those persons, who sleep over their
rights. He has, in this connection, referred to
the guidance of the Supreme Court in
Malcom Lawrence Cecil D'Souza v. Union
of India and others7.
1150 INDIAN LAW REPORTS ALLAHABAD SERIES

23. It has also been urged by the
learned Advocate General that the issue of
being vigilant about one's rights lies at the
core of a party's right to seek relief under
the law in general and, in particular, in case
of public employment. It is urged that the
petitioners cannot capitalize on the benefit
of a judgment rendered in the case of other
candidates, who have toiled hard to enforce
their rights over a long period of time. The
learned Advocate General has further
buttressed his submissions on the strength
of the decision of their Lordships of the
Supreme Court in U.P. Jal Nigam and
another v. Jaswant Singh and another8.
It is urged that acquiescence has not been
approved on the part of a candidate who
was not vigilant about his rights at an
earlier stage, but claims relief after a
judgment is passed in favour of some
others, similarly circumstanced, who have
run from pillar to post to secure their rights.

24. The question about being vigilant
for
one's
right,
particularly
where
administrative
decisions
are
taken,
adversely
affecting
rights
of
public
servants, that remain unchallenged for long,
engaged the attention of the Supreme Court
in the context of a seniority dispute in
Malcom
Lawrence
Cecil
D'Souza
(supra), a decision on which the learned
Advocate General has relied. It was a case,
where the issue of inter se seniority
between the officers of the Income Tax
Department was agitated by one of them
after a lapse of 14 or 15 years. It was in that
context that it was observed in Malcom
Lawrence Cecil D'Souza:

"8. The matter can also be looked at
from another angle. The seniority of the
petitioner qua Respondents 4 to 26 was
determined as long ago as 1956 in
accordance with 1952 Rules. The said
seniority was reiterated in the seniority list
issued in 1958. The present writ petition
was filed in 1971. The petitioner, in our
opinion, cannot be allowed to challenge the
seniority list after lapse of so many years.
The fact that a seniority list was issued in
1971. in pursuance of the decision of this
Court in Karnik case would not clothe the
petitioner with a fresh right to challenge the
fixation of his seniority qua Respondents 4
to 26 as the seniority list of 1971 merely
reflected the seniority of the petitioner qua
those respondents as already determined in
1956.
Satisfactory
service
conditions
postulate that there should be no sense of
uncertainty
amongst
public
servants
because of stale claims made after lapse of
14 or 15 years. It is essential that anyone
who feels aggrieved with an administrative
decision affecting one seniority should act
with due diligence and promptitude and not
sleep over the matter. No satisfactory
explanation has been furnished by the
petitioner before us for the inordinate delay
in approaching the Court. It is no doubt true
that he made a representation against the
seniority list issued in 1956 and 1958 but
that representation was rejected in 1961.
No cogent ground has been shown as to
why the petitioner became quiescent and
took no diligent steps to obtain redress."

25. The other decision, on which the
learned Advocate General has relied, is also
relevant to the issue, and that is, U.P. Jal
Nigam and another v. Jaswant Singh
(supra). In U.P. Jal Nigam and another v.
Jaswant Singh, the issue arose in the
context of age of retirement of employees
of the U.P. Jal Nigam. Some of the
employees of the U.P. Jal Nigam had
agitated their rights to continue in service
up to the age of 60 years instead of
superannuating at 58, claiming parity with
State
Government
Employees,
whose
1 All. Rishabh Kumar & Ors. Vs. State of U.P. & Ors.
1151
Service Rules had been amended to provide
60 years as the age of superannuation.
Many of the employees had continued on
the strength of interim orders up to the age
of 60.

26. In Harwindra Kumar v. Chief
Engineer, Karmik and others9, it was
finally held by the Supreme Court that
employees of the U.P. Jal Nigam would be
governed by the same regulations relating
to superannuation as Government servants
of the State and they too would retire at the
age of 60 years. In consequence of the said
decision, a spate of writ petitions were filed
by employees, who had retired at the age of
58 years long back, asking for extension of
the benefit of the judgment in Harwindra
Kumar. The High Court disposed of the
writ petitions granting benefit of the
decision in Harwindra Kumar to the
petitioners, who had already retired at the
age of 58 years from the Jal Nigam Service.
It was in that context that their Lordships of
the Supreme Court allowed the Appeal
preferred by the Jal Nigam by Special
Leave and held in U.P. Jal Nigam and
another v. Jaswant Singh thus:

"9. Similarly in Jagdish Lal v. State of
Haryana [(1997) 6 SCC 538 : 1997 SCC
(L&S) 1550] this Court reaffirmed the rule
if a person chose to sit over the matter and
then woke up after the decision of the
court, then such person cannot stand to
benefit. In that case it was observed as
follows: (SCC p. 542)

"The delay disentitles a party to
discretionary relief under Article 226 or
Article 32 of the Constitution. The
appellants kept sleeping over their rights
for long and woke up when they had the
impetus from Virpal Singh Chauhan case
[Union of India v. Virpal Singh Chauhan,
(1995) 6 SCC 684 : 1996 SCC (L&S)
1 : (1995) 31 ATC 813] . The appellants'
desperate attempt to redo the seniority is
not amenable to judicial review at this
belated stage."

10. In the case of Union of India v.
C.K. Dharagupta, (1997) 3 SCC 395 : 1997
SCC (L&S) 821, it was observed as
follows:

"9. We, however, clarify that in view
of our finding that the judgment of the
Tribunal in R.P. Joshi v. Union of India,
OA No. 497 of 1986 decided on 17-3-1987
gives relief only to Joshi, the benefit of the
said judgment of the Tribunal cannot be
extended
to
any other
person.
The
respondent C.K. Dharagupta (since retired)
is seeking benefit of Joshi case. In view of
our finding that the benefit of the judgment
of the Tribunal dated 17-3-1987 could only
be given to Joshi and nobody else, even
Dharagupta is not entitled to any relief.

11. In Govt. of W.B. v. Tarun K. Roy
[(2004) 1 SCC 347 : 2004 SCC (L&S) 225]
their Lordships considered delay as serious
factor and have not granted relief. Therein
it was observed as follows: (SCC pp. 35960, para 34)

"34. The respondents furthermore are
not even entitled to any relief on the ground
of gross delay and laches on their part in
filing the writ petition. The first two writ
petitions were filed in the year 1976
wherein the respondents herein approached
the High Court in 1992. In between 1976
and 1992 not only two writ petitions had
been decided, but one way or the other,
even the matter had been considered by this
Court in Debdas Kumar [State of W.B. v.
Debdas Kumar, 1991 Supp (1) SCC 138 :
1991 SCC (L&S) 841 : (1991) 17 ATC
261] . The plea of delay, which Mr
Krishnamani states, should be a ground for
denying the relief to the other persons
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
similarly situated would operate against the
respondents.
Furthermore,
the
other
employees not being before this Court
although
they
are
ventilating
their
grievances before appropriate courts of
law, no order should be passed which
would prejudice their cause. In such a
situation, we are not prepared to make any
observation only for the purpose of grant of
some relief to the respondents to which
they are not legally entitled to so as to
deprive others therefrom who may be
found to be entitled thereto by a court of
law."

12. The statement of law has also been
summarised
in
Halsbury's
Laws
of
England, para 911, p. 395 as follows:

"In determining whether there has
been such delay as to amount to laches, the
chief points to be considered are:

(i) acquiescence on the claimant's part;
and

(ii) any change of position that has
occurred on the defendant's part.

Acquiescence in this sense does not
mean standing by while the violation of a
right is in progress, but assent after the
violation has been completed and the
claimant has become aware of it. It is
unjust to give the claimant a remedy where,
by his conduct, he has done that which
might fairly be regarded as equivalent to a
waiver of it; or where by his conduct and
neglect, though not waiving the remedy, he
has put the other party in a position in
which it would not be reasonable to place
him if the remedy were afterwards to be
asserted. In such cases lapse of time and
delay are most material. Upon these
considerations rests the doctrine of laches."

13. In view of the statement of law as
summarised above, the respondents are
guilty
since
the
respondents
have
acquiesced in accepting the retirement and
did not challenge the same in time. If they
would have been vigilant enough, they
could have filed writ petitions as others did
in the matter. Therefore, whenever it
appears that the claimants lost time or
whiled it away and did not rise to the
occasion in time for filing the writ
petitions, then in such cases, the court
should be very slow in granting the relief to
the incumbent. Secondly, it has also to be
taken into consideration the question of
acquiescence or waiver on the part of the
incumbent whether other parties are going
to be prejudiced if the relief is granted. In
the present case, if the respondents would
have challenged their retirement being
violative of the provisions of the Act,
perhaps the Nigam could have taken
appropriate steps to raise funds so as to
meet the liability but by not asserting their
rights the respondents have allowed time to
pass and after a lapse of couple of years,
they have filed writ petitions claiming the
benefit for two years.