Dismissed

Prem Kumar Yadav v. State of U.P. and 3 others

Allahabad HC5 Apr 2018SPLA/302/2018

Case brief

AI extract

What is this about?

The Allahabad High Court dismissed a special appeal challenging the non-allocation of 25% horizontal reservation for Home Guards. The court held the appeal was not maintainable as the identical grievance was already adjudicated and dismissed in earlier writ proceedings where the appellant failed to challenge the advertisement beforehand.

What did the court decide?

Special Appeal dismissed with costs of Rs. 20,000/-.

Prem Kumar Yadav Vs State of U.P… — Constitutional and Fundamental Rights | Allahabad HC (2018)

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Court No. - 39

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Case :- SPECIAL APPEAL No. - 302 of 2018

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Appellant :- Prem Kumar Yadav Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- A.B.N.Tripathi Counsel for Respondent :- C.S.C.,Kailash Singh Kushwaha

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Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.

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The dismissal of the writ petition by judgment and order dated 20 March 2018 by a learned Judge of this Court has led to the filling of the Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court, Rules.

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The learned Judge has dismissed the writ petition for the reason that earlier Writ Petition 51117 of 2016 filed by the writ petitioner (the appellant) for quashing the select list dated 3 October 2016 and for a direction upon the respondents to provide the benefit of 25% horizontal reservation to the Home Guards against the aforesaid selection was dismissed on 25 October 2016 and even the Special Appeal filed against the aforesaid judgment was dismissed on 29 November 2016.

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It transpires from the records of the writ petition that an advertisement bearing No. 21(8) of 2015 was issued by the U.P. State Subordinate Service Selection Commission¹ inviting applications upto 30 November 2015 for appointment of drivers. The petitioner responded to the advertisement but his name was not included in the final list dated 3 October 2016. After the result was declared, the petitioner filed Writ Petition No. 51117 of 2016 contending that horizontal reservation to the extent of 25% had to be provided to the candidates serving as Home Guards in terms of the Government Order dated 27 July 2001. This contention was specifically rejected for the reason that

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1 The Commission

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such a condition had not been mentioned in the advertisement and also for the reason that the petitioner had participated in the selection without challenging the advertisement. The order dated 25 October 2016 passed by the learned Judge is reproduced below:-

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"The petitioner has participated in the selection held for the post of driver pursuant to the advertisement no.21(8)/2015 namely Vehicle Driver (General Selection) Recruitment, 2015. The petitioner has filed this writ petition with the prayer to quash the select list regarding 21 posts of drivers in different departments of the State Government. The ground of challenge is that pursuant to the Government order dated 27.7.2001, 25% of the vacancy advertised were to be kept reserved for the candidates working as Home Guards in the Department of Home Guard Services.

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This submission of learned counsel for the petitioner is misconceived inasmuch as no such condition has been mentioned in the advertisement. The petitioner has participated in the selection and has not challenged the advertisement at any stage till he failed to qualify.

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It is well settled that a person who appears in the selection and disqualify cannot turned around and challenge the selection on the ground that the advertisement itself was bad.

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With the above observations and directions, the writ petition is dismissed."

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Feeling aggrieved, the petitioner filed Special Appeal No.746 of 2016 which was also dismissed by judgment and order dated 29 November 2016, which is also reproduced below:-

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"Heard Sri Santosh Kumar Srivastava and Mr. Brij Raj Singh, learned counsel for the appellant and Mr. Kailash Singh Kushwaha for the respondents.

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The original petitioner is in appeal consequent to the learned Single Judge dismissing a writ petition instituted by him vide judgment and order dated 25 October 2016. In the writ petition the appellant had sought the quashing of a select list dated 3 October 2016. This list itself had been drawn up for the filling up as many as 618 posts of Drivers in various departments of the State Government. The sole ground of

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challenge which was urged for the consideration of the learned Single Judge and which has been reiterated before us was a failure on the part of the State to earmark and reserve twenty five per cent of the vacancies advertised in favour of candidates working as Home Guards in the Department of Home Guard Services. This submission has been negatived by the learned Single Judge with the following observations:

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"This submission of learned counsel for the petitioner is misconceived inasmuch as no such condition has been mentioned in the advertisement. The petitioner has participated in the selection and has not challenged the advertisement at any stage till he failed to qualify.

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It is well settled that a person who appears in the selection and disqualify cannot turned around and challenge the selection on the ground that the advertisement itself was bad."

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We find from a perusal of the material on record that the advertisement at no point of time made any provision for reservation of seats in favour of Home Guards. The number of posts which stood reserved for different categories were duly enumerated in the advertisement. The appellant never challenged the said advertisement. In fact and as is evident from the record he participated in the selection process and filed the writ petition only after the final results had been declared. In light of the aforesaid facts, we find no error in the judgment of the learned Single Judge.

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The Special Appeal lacks merit and is consequently dismissed."

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It transpires that after the dismissal of the Writ Petition and the Special Appeal, the writ petitioner submitted a complaint on the website of the Integrated Grievance Redressal System on 20 June 2017. A perusal of the complaint filed by the petitioner indicates that a grievance was raised about 25% horizontal reservation not provided to the petitioner. It needs to be noted, the Writ Petitioner did not make a mention about the filing of the writ petition in the High Court for the same relief and that the Special Appeal filed by him had been dismissed.

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It further transpires that pursuant to the aforesaid compliant filed by

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the petitioner, the Senior Staff Officer has sent a communication dated 17 July 2017 to the Secretary of the Commission enclosing the complaint filed by the writ petitioner with a request to take necessary action and to inform the writ petitioner and the Home Guards, Headquarter about the complaint.

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Writ Petition No.8250 of 2018 was then filed by the petitioner with the prayer that the respondent-authorities should pass a reasoned and speaking order on the aforesaid letter dated 17 July 2017 sent by the Home Guards, Headquarters to the Secretary of the Commission.

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It is clear that the grievance for providing 25% horizontal reservation to the Home Guards in the advertisement No.21(8) of 2015 was specifically raised in Writ-A No.51117 of 2016 earlier filed by the petitioner and also in Special Appeal No.746 of 2016 . The writ petition was dismissed on 25 October 2016 and the Special Appeal was dismissed on 29 Novermber 2016. The judgment in Special Appeal noted that the advertisement had not made any provision for reservation in favour of Home Guards and that the appellant had also not challenged the advertisement. In fact, as was noted in the judgment rendered in Special Appeal, the writ petitioner had participated in the selection process and filed the writ petition only after the final result has been declared.

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In such circumstances, it was not open to the writ petitioner to raise any greivance regarding 25% horizontal reservation for Homeguards before any Authority, much less the Integrated Grievance Redressal System for the same grievance as was raised in the Writ Petition and Special Appeal. Not only this the writ petitioner, for ulterior motives, concealed the filing of the Writ Petition and its dismissal but also the filing of the Special Appeal and its dismissal.

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The writ petitioner had, therefore, concealed material facts in his complaint. Once the writ petition had been dismissed in which the writ

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petitioner had taken a specific plea about not providing 25% horizontal reservation for Home Guards and the Special Appeal has also been dismissed, a second writ petition filed by the petitioner for taking a decision on the representation filed in regard to the same grievance was clearly not maintainable.

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The petitioner has not only concealed material facts before the Integrated Grievance Redressal System in his complaint, but also filed second writ petition raising the same grievance about 25% horizontal reservation for drivers in Home Guards and on dismissal of the Writ Petition, this Special Appeal has been filed. We, therefore, not only intend to dismiss the Special Appeal but also find it to be a fit case for imposing costs upon the appellant.

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The Special Appeal is, accordingly, dismissed with costs of Rs. 20,000/- which the appellant shall deposit before the Registrar General of the Court within a period of one month from today. On deposit of such cost, it shall be transmitted to the account of Allahabad High Court Mediation and Conciliation Centre. If the appellant fails to deposit the cost, the Registrar General of the Court shall inform the District Magistrate, Kushinagar for recovery of the said amount as arrears of land revenue and after recovering the said amount, it shall be transmitted to the Registrar General of the Court for depositing in the account of Allahabad High Court Mediation and Conciliation Centre.

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Order Date :- 5.4.2018 Junaid

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(Dilip Gupta,J.)

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(Neeraj Tiwari,J.)

Prem Kumar Yadav v. State of U.P. and 3 others

Case brief

What is this about?

What did the court decide?

Prem Kumar Yadav v. State of U.P. and 3 others

Case brief

What is this about?

What did the court decide?

What the court decided

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