# Vivek Dubey v. State of U.P. & Anr

- **Citation:** (2015) 3 ILRA 1378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-11
- **Case number:** Writ-A No. 49158 of 2015
- **Bench:** Arun Tandon, Shashi Kant
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-dubey-v-state-of-u-p-anr-43326
- **Pages:** 6

## Headnote

Constitution
of
India,
Art.-226Combined
State
examination-petitioner
kept the column 20 blank-relating to post of
designated officer-after qualifying written
examination-participated
in
interviewwhen result declared-came to know-lesser
marks candidate selected as designated
officer but petitioner ignored-because not
marked
column
20-even
interview
committee
not
aware
about
this
bifurcation-whether
can
be
ignored?-
question referred to full bench.
(B) Constitution of India-Art.-226-Writ
petition-laches
&
delay-when
fetalquestion referred to full bench.
Held: Para-26
We find it difficult to agree with the
judgment in in the case of Vinay Kumar Pal
(supra) which has been rendered on
practically identical facts. We deem it fit to
refer the following questions of law to be
answered by a Larger Bench of this Court :
(a) Once the Writ Court, in respect of
same examination and in respect of
same column no. 20 of the form having
been left blank, had declared that such
candidates are also to be considered for
the post of 'Designated Officer', is it
open to the Commission to have two sets
of norms, one for the candidates who
approached the High Court and the other
for
the
candidates
who
did
not
approached the High Court? Why such
judgements be not read as judgements
in rem?
(b) Can a writ petition be dismissed on
the ground of latches only because the
result of Preliminary Examination had
been known to the petitioner, when,
there had been a judgment of this Court
for ignoring the blank Coloumn No. 20, in
the
matter
of
consideration
of
candidature of the candidate against the
post of "Designated Officer"?
(c) Whether the Division Bench in the case
of Vinay Kumar Pal (supra) was right in the
facts of the case, in recording that there has
been inordinate delay in filing the writ
petition with reference to the date on which
the final result was declared?
Case Law discussed:
W.P. No. 31864 of 2014 decided on 13th June
2014; Writ A No. 617 of 2015 decided on
15.01.2015; [2011 AIR SCW 3033].

## Text

1378
 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2015
BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE SHASHI KANT, J.
Writ-A No. 49158 of 2015
Vivek Dubey
 ...Petitioner
Versus
State of U.P. & Anr.
...Respondents
Counsel for the Petitioner:
Sri Radha Kant Ojha, Sri Sanjay Mishra,
Sri Durgesh Kumar Dubey
Counsel for the Respondents:
C.S.C., Sri G.K. Singh, Sri Ajay Kumar
(A)
Constitution
of
India,
Art.-226Combined
State
examination-petitioner
kept the column 20 blank-relating to post of
designated officer-after qualifying written
examination-participated
in
interviewwhen result declared-came to know-lesser
marks candidate selected as designated
officer but petitioner ignored-because not
marked
column
20-even
interview
committee
not
aware
about
this
bifurcation-whether
can
be
ignored?-
question referred to full bench.
(B) Constitution of India-Art.-226-Writ
petition-laches
&
delay-when
fetalquestion referred to full bench.
Held: Para-26
We find it difficult to agree with the
judgment in in the case of Vinay Kumar Pal
(supra) which has been rendered on
practically identical facts. We deem it fit to
refer the following questions of law to be
answered by a Larger Bench of this Court :
(a) Once the Writ Court, in respect of
same examination and in respect of
same column no. 20 of the form having
been left blank, had declared that such
candidates are also to be considered for
the post of 'Designated Officer', is it
open to the Commission to have two sets
of norms, one for the candidates who
approached the High Court and the other
for
the
candidates
who
did
not
approached the High Court? Why such
judgements be not read as judgements
in rem?
(b) Can a writ petition be dismissed on
the ground of latches only because the
result of Preliminary Examination had
been known to the petitioner, when,
there had been a judgment of this Court
for ignoring the blank Coloumn No. 20, in
the
matter
of
consideration
of
candidature of the candidate against the
post of "Designated Officer"?
(c) Whether the Division Bench in the case
of Vinay Kumar Pal (supra) was right in the
facts of the case, in recording that there has
been inordinate delay in filing the writ
petition with reference to the date on which
the final result was declared?
Case Law discussed:
W.P. No. 31864 of 2014 decided on 13th June
2014; Writ A No. 617 of 2015 decided on
15.01.2015; [2011 AIR SCW 3033].
(Delivered by Hon'ble Arun Tandon, J.)
1.
Heard Sri Radha Kant Ojha,
Senior Advocate assisted by Sri Durgesh
Kumar Dubey, Advocate for petitioner
and Sri G.K. Singh, Senior Advocate
assisted by Sri Ajay Kumar, Advocate for
respondent nos. 1 and 2.
2.
Uttar Pradesh Public Service
Commission,
Allahabad
(hereinafter
referred
to
as
'the
Commission'),
published
an
advertisement
dated
23.03.2013, inviting
applications for
various posts for appointment on the posts
of Combined State/Upper Subordinate
Services
(General
Recruitment)
Examination,
2013.
3 All] Vivek Dubey Vs. State of U.P. & Anr.
1379
3. Petitioner before this Court is stated
to have submitted his application in response
to the advertisement so published by the
Commission. Some of the posts published by
way of said advertisement were named
"Designated Officer". Dispute giving rise to
the present writ petition is with respect to the
posts of Designated Officer for which special
qualifications were also prescribed.
4.
It is not disputed that petitioner
does
satisfies
special
qualifications
prescribed
for
the
said
post.
The
application
form
contained
amongst
others Coloumn no. 20, which provided
for other essential qualifications. The
petitioner had admittedly left Coloumn
No. 20 blank in his application form.
Because of Coloumn No. 20 having not
been filled by the petitioner, it was
decided by the Commission that he has
not opted for the post of Designated
Officer and therefore, in the results of
Preliminary Examination, which were
declared on 27.05.2014, Roll Number of
the petitioner was shown only in the list
prepared for the posts covered by
"Executive" only and not for the posts
covered by "Designated Officer". The
Mains
Examination,
took
place
on
01.07.2015, the result of the Mains
Examination was declared on 13th
January,
2015.
According
to
the
Commission, result of main examination
was again preapred on the basis of the
options given by the candidates, namely
"Executive" and/or "Designated Officer",
separately. Name of petitioner was shown
in the list prepared for the post
categorised
under
the
heading
"Executive" and not against the posts
covered by "Designated Officer".
5. Interview is stated to have taken
place and final result had been declarted
category wise, which has been up loaded
on the website of the Commission.
6. Petitioner before this Court seeks
a writ of mandamus, directing the
Commission to consider his candidature
against the posts of "Designated Officer"
on the basis of over all marks received by
him in the said examination within the
category to which he belongs. It is also
stated before us that persons who are
lower in merit than petitioner have been
offered the posts under the heading
"Designated Officer", while petitioner has
been nonsuited for the said posts, only
because he had left Coloumn No. 20 of
the application form, blank.
7.
Sri R.K. Ojha, Senior Advocate
on behalf of petitioner, with reference to
the Division Bench judgment of this
Court in the case of Ajay Pratap Singh
and Others Vs. State of U.P. and Others,
being Writ Petition No. 31864 of 2014,
decided on 13th June, 2014, submits that
the issue with regard to Coloumn No. 20,
having been left blank and therefore
candidature of the candidate concerned
being excluded from consideration against
the posts of "Designated Officers", has
been examined and it has been laid down
that since petitioners in that case were
eligible for the post of "Designated
Officer" and had obtained more marks
than cut-off marks, he was entitled to
appear in the Main Examination, against
the posts of "Designated Officer" also.
8. Applying the same principle, Sri
R.K. Ojha, Senior Advocate submitted
that since, the petitioner had secured
minimum qualifying marks required for
appearing in the Mains Examination, it
was not necessary for him to approach
this Court earlier and it is only when final
1380
 INDIAN LAW REPORTS ALLAHABAD SERIES
result has been declared, that he came to
know that his candidature against the
posts "Designated Officer" has been non
suited because of Coloumn No. 20 of
application form having been left blank.
9. Sri G.K. Singh, Senior Advocate on
behalf of the Commission, on the contrary
pointed out that after the judgment in the
case of Ajay Pratap Singh (supra), as many
as 50 writ petitions were filed before this
High Court by the candidates who were not
invited for participation in the Mains
Examination. In all these 50 writ petitions the
order of the Division Bench rendered in the
case of Ajay Pratap Singh (supra) has been
followed. Petitioners of these 50 writ
petitions, who were nearly 80 in number,
have been invited for participation in the
Mains Examination, under the orders of the
High Court. Their candidature for the posts
of "Designated Officer" has also been
considered, even though coloumn no. 20 of
their applications was left blank. It is stated
that all those petitioners who have been
successful in the Mains Examination and
Interview have been selected against the
posts of "Designated Officer".
10. Sri G.K. Singh, Senior Advocate
however submits that this practice which
has been undertaken by the Commission,
because of the orders of the High Court,
may not be applied in the case of the
petitioner herein, inasmuch as in the result
of Priliminary Examination his roll number
was disclosed against the post covered
under the heading "Executive" only.
Similarly,
in
the
result
of
Mains
Examination, his roll number was disclosed
against the posts within the heading
"Executive"
only,
consequently,
after
Interview,
his
candidature
has
been
confined to the post within the heading
"Executive". It is explained that Division
Bench of this Court in the cae of Vinay
Kumar Pal Vs. State of U.P. and Others,
Writ A No. 617 of 2015, decided on
15.01.2015 has held that persons who had
been selected for the posts within the
heading "Executive" cannot be permitted to
challenge the selections at the stage when
the final results have been declared and the
writ petition is liable to be dismissed on the
ground of latches/inordinate delay.
11. Sri G.K. Singh, Senior Advocate
submits that this writ petition must also
meet the same fate.
12. Sri R.K. Ojha, Senior Advocate in
his rejoinder affidavit submits that the
selection procedure, held for the posts
covered under the heading "Executive" and
for the post covered under the heading
"Designated Officer" was one and the same,
right
from
the
stage
of
Priliminary
Examination till the stage of Interview. No
separate question paper was prepared nor any
separate Inverview Board was constituted vis
a vis, category of post. It is also stated that
candidates
who
appeared
before
the
Inverview Board were allotted code numbers
without their identity being disclosed to the
Members of the Board and without the
Members being informed as to whether
candidate is to be considered only for the
posts under heading "Executive" or for the
posts
under
the
heading
"Designated
Officer". He submits that only at the time of
preparation of final results, that Commission
has again reopened the controversy with
regard to Coloumn No. 20 and has declared
that candidates leaving the Coloumn No. 20
blank as unsuitable for the posts under the
heading "Designated Officer". Persons lower
in merit have been selected against the posts
of "Designated Officer", only on the ground
that they had disclosed required information
in Coloumn No. 20.
3 All] Vivek Dubey Vs. State of U.P. & Anr.
1381
13. There is also an issue between the
parties as to whether, in the application
form, it was required to be submitted at the
time of interview by the respective
candidates, the petitioner had been asked to
submit his application for category of
various posts. According to the petitioner he
was asked to fill option against the post
under the heading "Designated Officer" by
the officers of the Commission.
14. Issue with regard to the effect of
the form submitted by the petitioner and
at the time of interview and the
correctness of the stand that he was asked
to give his options by the officers of the
Commission, at the time of Interview, is a
controversial fact and may be examined
by the Commission at the first instance.
15. But this Court is required to
examine as to whether this writ petition is
liable to be dismissed on the ground of
latches as has been held in the case of
Vinay Kumar Pal (Supra).
16.
We at the outset record that for
writ petition being filed under Article 226
of the Constitution of India, no limitation is
prescribed either under the Constitution of
India or in the Allahabad High Court Rules.
17. The issue has been settled by the
Apex Court repeatedly it has been explained
that High Court has to examine for itself in
each case as to whether the petitioner had
been vigilent in pursuing his remedies or not
and has approached the writ Court within
reasonable time. It has to be seen as to
because of time period taken in approaching
the Court, the petitioner has created a
situation where High Court may refuse to
entertain the writ petition on the ground of
latches. Legal principles applicable in the
matter of entertainment of writ petitions, on
the plea of delay/latches has been stated by
the Apex Court in the case of Shankara CoOp. Housing Society Ltd. Vs. M. Prabhakar
and Others [2011 AIR SCW 3033].
18. We find it difficult to follow the
Division Bench of this Court in the case
of Vinay Kumar Pal (Supra), on facts. We
may record that no binding precedent has
been laid down in the said judgment.
19. In our opinion, for a writ petition to
be dismissed on the ground of laches/delay,
it has to be examined as to whether the
particular petitioner has been sleeping over
his rights or there have been inordinate delay
creating a situation which cannot be rectified
at such later stage or the petitioner has
created a right in another person which may
cause injustice, if the writ Court is to
entertain the writ jurisdiction and it grant
relief to the petitioner.
20.
We in the facts of the case, find
that Preliminary examination pursuant to the
advertisement, had taken place in the month
of May, 2014, the result of the said
examination was declared on 27.05.2014,
which, according to the Commission was
category wise and it is at this stage itself that
writ petition was filed by Ajay Pratap Singh
and others (supra), with the plea that even if
Coloumn No. 20 has been left blank their
candidature has to be considered for the post
of "Executive" as well as "Designated
Officer. Which plea was upheld by the
Court. We fail to understand that when a
judgmnet had been delivered by this Court as
early as on 13th June, 2014, permitting all
such applicants who had disclosed their
qualifications but had left coloumn no. 20
blank for their candidature being considered
for the post of "Designated Officer" by the
Commission why the said legal principal was
not applied by the Commission in uniform
1382
 INDIAN LAW REPORTS ALLAHABAD SERIES
manner. Why should Commission insist on
separate writ petitions being filed by the
individual candidate, when the legal position
with regard to Coloumn No. 20 having been
left blank and the consequences which
follow had already been laid down by the
Division Bench of this Court.
21.
The Commission in the present
case should had ultimately applied the law
explained by this Court, more so when date
of Mains Examination had not been
announced when the judgment was made by
the Division Bench. This practice of creating
a situation for compelling the individual
candidates to approach this Court again and
again for practically same reliefs, must be
avoided by the Commission. Once this Court
declares consequence of a particularly
Coloumn having been left blank, the
Commission is duty bound to act uniformly
for all such similarly situate candidates, even
if they do not approach the Writ Court.
Commission must not become an agency for
generating litigation.
22. We therefore, have no hesitation in
recording that after the Division Bench
Judgment of this Court dated 13th June,
2014, the Commission had no business to
treat the candidates who had left Coloumn
No. 20 blank, as excluded from consideration
for the post of "Designated Officer".
23. We had specifically asked
learned counsel for the Commission as
well as learned counsel for the petitioner
as to whether there was any difference in
the
examination
papers
for
both
Preliminary
Examination
and
Mains
Examination as well as with regard to
constitution of the Interview Board and
the method of evaluation by the Interview
Board of a particular candidate, the
answer given is in negative. It has been
explained to the Court that Interview
Board was not aware as to whether
particular candidate was to be considered
only for the post of "Designated Officer"
or for the post of "Executive Officer" or
vice-versa.
24. We are also of the opinion that in
the facts of the case, petitioners have
approached this Court promptly after the
declaration
of
the
result
seeking
consideration of their case against the post of
"Designated Officer". It is stated before us
that final result was declared on 26th March,
2015, marks received by the candidates were
disclosed only in the last week of June, 2015
and it is at this stage that petitioner came to
know that he even after having received
more marks then the last candidate selected
for the post "Designated Officer" has been
non suited because of Coloumn No. 20
having been left blank.
25. The finding recorded in the order
of the Division Bench of this Court in the
case of Vinay Kumar Pal (supra) that the
petition was filed after a period of six
months from the date the result of Mains
Examination was declared, is incorrect
inasmuch as from the record we find that
result of Mains Examination was declared
on 13th January, 2015 i.e. two days prior
to the order of the Court in Vinay Kumar
Pal (supra) case dated 15th January, 2015.
26.
We find it difficult to agree with
the judgment in in the case of Vinay Kumar
Pal (supra) which has been rendered on
practically identical facts. We deem it fit to
refer the following questions of law to be
answered by a Larger Bench of this Court :
(a) Once the Writ Court, in respect of
same examination and in respect of same
column no. 20 of the form having been left
3 All] Raj Nath Vs. D.D.C. Jaunpur & Ors.
1383
blank, had declared that such candidates are
also to be considered for the post of
'Designated Officer', is it open to the
Commission to have two sets of norms, one
for the candidates who approached the High
Court and the other for the candidates who did
not approached the High Court? Why such
judgements be not read as judgements in rem?
(b) Can a writ petition be dismissed on
the ground of latches only because the result
of Preliminary Examination had been known
to the petitioner, when, there had been a
judgment of this Court for ignoring the blank
Coloumn No. 20, in the matter of
consideration of candidature of the candidate
against the post of "Designated Officer"?
(c) Whether the Division Bench in the
case of Vinay Kumar Pal (supra) was right in
the facts of the case, in recording that there
has been inordinate delay in filing the writ
petition with reference to the date on which
the final result was declared?
27. Let this order be placed before
Hon'ble the Chief Justice for constituting
a Larger Bench for answering the
aforesaid questions at the earliest.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.11.2015
BEFORE
THE HON'BLE ANJANI KUMAR MISHRA, J.
Writ-B No. 56524 of 2015
connected with
Writ-B No. 59549 of 2015
Raj Nath
 ...Petitioner
Versus
D.D.C. Jaunpur & Ors.
...Respondents
Counsel for the Petitioner:
Sri S.C. Tripathi
Counsel for the Respondents:
C.S.C., Sri Bedi Lal Verma, Sri S.N.
Tripathi
U.P. Consolidation of Holdings Act-Section
48-Revision-Chak allotment matter-decided
without summoning record-without spot
inspection-while
exercising
revisional
power-the
D.D.C.
To
ensure
and
be
satisfied-whether the provisions contained
under Rule 21(3), 24-D and 26 (5) complied
with or not? In absence of consideration,
order not sustainable, quashed.
Held: Para-25
Accordingly and in view of the above
discussion, the impugned order passed by
the Deputy Director of Consolidation which
has
admittedly
been
passed
without
summoning or perusing the record of the
proceedings before the Consolidation Officer
as the Settlement Officer, Consolidation,
cannot be sustained and is, therefore, set
aside. The writ petition is accordingly
allowed and the impugned order dated
28.05.2015 is set aside. The matter is
remanded back to the Deputy Director of
Consolidation, respondent no. 1 to decide
the revisions no. 1686 and 1688 afresh.
Case Law discussed:
AIR 1975 (Allahabad) 126; 2015 (127) RD
675; (2005) 98 RD 593.
(Delivered by Hon'ble Anjani Kumar
Mishra, J.)
1. Heard Shri S.C. Tripathi, learned
counsel for the petitioner and Shri S.N.
Tripathi and Shri B.L Verma, for the
caveator.
2. With the consent of the parties, the
matter has been heard and is being decided
finally at the admission stage itself without
calling for a counter affidavit.
3. The writ petition arises out of
proceedings for allotment of chaks and
seeks for quashing of the order dated