Allowed

State of U.P. Thru Secretary Basic Secretariat and Others v. Ankit Kumar Tiwari and Another

Allahabad HC15 Apr 2019SPLA/1594/2010

Case brief

AI extract

What is this about?

This intra-court appeal challenges a judgment directing an authority to consider improved examination marks obtained after the application deadline. The bench held that such post-cut-off marks cannot be considered for admission, relying on relevant Division Bench and Supreme Court precedents that prioritize the cut-off date.

What did the court decide?

The judgment dated 18.01.2010 directing consideration of post-cut-off improvement marks was set aside.

State of U.P. Thru Secretary Basic Secretariat… — Education and Admissions | Allahabad HC (2019)

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Court No. - 34

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Case :- SPECIAL APPEAL No. - 1594 of 2010

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Appellant :- State of U.P. and others Respondent :- Ankit Kumar Tiwari and another Counsel for Appellant :- M.S. Pipersenia, S.C. Counsel for Respondent :- Bhanu Prakash Singh

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Hon'ble Sudhir Agarwal, J. Hon'ble Rajendra Kumar-IV, J.

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Heard learned Standing Counsel for appellants. None appeared on behalf of respondents though name of Sri Bhanu Prakash Singh, is shown as counsel for respondents in the cause list and the case has been called in revise. Hence, we proceed to decide this appeal after hearing learned Standing Counsel.

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This intra-Court Appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as “Rules, 1952”) has arisen from judgment dated 18.01.2010 passed by learned Single Judge in Writ Petition No. 1920 of 2010 directing appellants to consider candidature of petitioners-respondents for Special B.T.C. Training Course-2008 on the basis of improved marks secured by petitioners-respondents in back papers.

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Learned Standing Counsel informed that in the similar circumstances, in another matter a similar order was passed which was taken in Special Appeal (Def.) No. 1045 of 2009 (State of U.P. and others Vs. Km. Shalini Singh) which was decided on 08.10.2009 and Division Bench took the view that improvement of marks after cut off date could not have been taken into consideration and consequently the judgment of learned Single Judge was set aside. Judgment in State of U.P. and others Vs. Km. Shalini Singh (supra) reads as under:

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“Respondents-appellants, aggrieved by order dated 5.5.2009 passed by a learned Single Judge in Civil Misc. Writ Petition No.23249 of 2009, have preferred this special appeal

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under Rule 5 Chapter VIII of the Allahabad High Court Rules.

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Short facts giving rise to the present appeal are that the writ petitioner-respondent offered her candidature for admission to B.T.C. Course 2004. The last date for submission of the application was 10.10.2004. Along with the application, she filed her B.A. marksheet. Later on, after cut-off date of submission of application, she appeared in the improvement examination in certain papers of B.A. and she was given revised marksheet of B.A. She claimed consideration of her case on the basis of the revised marksheet, inter alia, contending that it is the revised marksheet, which shall govern her case. The learned Single Judge acceded to her prayer and, while allowing the writ application, directed as follows:-

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"Considering the facts and circumstances of this case, since the petitioner had appeared in the Improvement Examination of B.A. in certain papers in which he has scored better marks on the basis of which he has been issued revised marks-sheet of B.A. examination, the respondent no.3, the Principal, Zila Shiksha Evam Prashikshan Sansthan, Dadraul, Shahjahanpur is directed to consider the marks awarded to the petitioner in the revised marks-sheet (Improvement Marks-sheet) of B.A. examination of the petitioner for consideration of his admission to the B.T.C. Course, 2004."

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Mr. R.K. Saxena, learned Standing Counsel, appearing on behalf of the appellants, submits that the case of the writ petitioner-respondent has to be considered on the basis of the marksheet, which she had filed along with the application before cut-off date, and her case cannot be considered with reference to the revised marksheet, which was obtained after the cut-off date. He points out that the case of a candidate for

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admission is to be considered on the basis of the marksheet submitted by her along with the application and, the improvement in the marks after the cut-off date, shall not entitle her to be considered for admission on the basis of the later marks.

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Mr. Anuj Bajpai, however appearing on behalf of the writ petitioner-respondent, submits that the candidature of the writ petitioner-respondent was fit to be considered on the basis of the revised marksheet, hence the learned Single Judge did not err in giving the said direction.

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Having appreciated the rival submissions, we find substance in the submission of Mr. Saxena, learned Standing Counsel. Undisputedly, the revised marksheet, on the basis of which, the writ petitioner-respondent is laying her claim was obtained after the cut-off date. It is further not in dispute that initially the writ petitioner-respondent claimed consideration of her case for admission on the basis of earlier marksheet.

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On the face of the above, we are of the opinion that the writ petitioner-respondent shall not be entitled for consideration of her case for admission on the basis of the revised marksheet obtained after the cut-off date. All these aspects have not been considered by the learned Single Judge, while passing the impugned order.

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In the result, the appeal is allowed, and the impugned order passed by the learned Single Judge is set aside.

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No costs. ”

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Learned Single Judge in the present matter has relied on judgment dated 22.12.2009 passed by a Single Judge in Writ Petition No. 70082 of 2009 (Akhilesh Kumar Maurya Vs. State of U.P. and others) but we are informed that against this judgment, Special Appeal (Def.) No. 622 of 2010 (State of U.P. and others Vs.

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Akhilesh Kumar Maurya and others) was filed which was allowed by a Division Bench vide judgment dated 04.08.2010 and judgment of learned Single Judge in Akhilesh Kumar Maurya Vs. State of U.P. and others (supra) passed on 22.12.2009 has been set aside. The decision in Special Appeal in State of U.P. and others Vs. Akhilesh Kumar Maurya and others (supra) reads as under:

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“The appellants' counsel is permitted to correct the memo of appeal.

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Heard Sri M.S. Pipersenia, learned Additional Chief Standing counsel for the appellants and Sri Anil Tiwari, learned counsel for petitioners/respondents.

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With the consent of the learned counsel for the parties the appeal is being heard and disposed of finally.

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This special appeal has been filed against the judgment and order of learned Single Judge dated 22.12.2009 by which order learned Single Judge has disposed of the writ petition directing the respondents to consider the candidature of the petitioners. The petitioners/respondents filed the writ petition praying for following relief:--

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(i) issue a suitable writ, order or direction in the nature of mandamus directing the respondents to entertain the new mark sheet for purposes of calculating and preparing a merit list for appointment in Special B.T.C. Training Course, 2008.

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(ii) issue any order, writ or direction which this Hon'ble Court may deems fit and proper in the circumstances of the case.

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(iii) award the cost of this writ petition.

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The petitioners' case in the writ petition is that the petitioners were the applicants for the Special B.T.C. Training Course, 2008. The petitioners were not selected for Special B.T.C. Training Course, 2008. The petitioners' case in the writ petition

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is that they have applied for improvement in their B.ed. Marksheets and their marksheets have been improved and after receiving improved marksheets they made an application to the Director praying that appropriate direction be issued for adding their improved marksheets of B.ed. for their selection in the Special B.ed Course Training, 2008.

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Learned Single Judge relying upon the judgment of Sushil Kumar Singh and another Versus State of U.P. and others reported in [2009 (2) ADJ 375] disposed of the writ petition directing the respondents to consider the candidature of the petitioner in accordance with law.

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Sri M.S. Pipersenia, learned counsel for the appellants challenging the order contended that the improved marks could not have been considered which was submitted after cut off the date. He submits that the petitioners' candidature was rightly considered and they were not selected on the basis of their marks at the relevant time. He submits that the judgment of Sushil Kumar Singh and another (supra) relied upon by a learned Single Judge does not lay down the correct law. He has placed reliance on a Division Bench judgment in a Special Appeal No.1045 of 2009, the State of U.P. and others Versus Km. Shalini Singh decided on 08.10.2009 in which the Division Bench has set aside the order of learned Single Judge where similar directions were issued.

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Sri Anil Tiwari, learned counsel submitted that the only direction was issued by the learned Single Judge for consideration and no prejudice can be said to have been caused to the appellants nor the appellants can be said to be aggrieved by the judgment of learned Single Judge.

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We have considered the submissions of the learned counsel for

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the parties and have perused the record.

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The case of the writ petitioners' themselves was that their improved marks be directed to be taken into consideration and their marks be added. The improved marks of the petitioners, were not available at the relevant time nor that was submitted before cut off the date. The learned Single Judge disposed of the writ petition relying on Sushil Kumar Singh's case in which judgment learned Single Judge directed that the better marks obtained by the petitioners be taken into consideration. The Division Bench judgment which has been relied by the learned counsel for the appellants laid down as under:--

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"Having appreciated the rival submissions, we find substance in the submission of Mr. Saxena Learned Standing Counsel Undisputedly the revised marksheet on the basis of which the writ petitioner-respondent is laying her claim was obtained after the cut off date. It is further not in dispute that initially the writ petitioner-respondent claimed consideration of her case for admission on the basis of earlier marksheet.

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On the face of the above, we are of the opinion that the writ petitioner-respondent shall not be entitled for consideration of her case for admission on the basis of the revised there aspects have not been considered by the learned Single Judge, while passing the impugned order.

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It the result, the appeal is allowed and the impugned order passed by the learned Single Judge is set aside."

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The Division Bench in the aforesaid case has taken the view that the cases of writ petitioners were not entitled for consideration on the basis of revised marks obtained after cut off the date. The aforesaid Division Bench's judgment is applicable with full force in the present case. The reliance has

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also been placed on the Supreme Court's judgment reported in 1997 (7) S.C. 287 State of Rajasthan Versus Hitendra Kumar Bhatt which laid down that the candidature which was not eligible on the cut off date, is not entitled for any sympathetic consideration. It was laid down that cut off date cannot be ignored in individual cases. The submission of the learned counsel for the appellants have substance the direction issued by a learned Single Judge for taking into consideration, the improved marks which was claimed to have been filed by the appellants cannot be sustained. The appeal is allowed. The judgment and order dated 22.12.2009 is set aside and the writ petition is dismissed.”

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Since the decision of learned Single Judge in Akhilesh Kumar Maurya Vs. State of U.P. and others (supra), which has been relied by learned Single Judge in the present matter, has been set aside, the judgment in question cannot be sustained.

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The judgment dated 18.01.2001, for the reasons stated above, is hereby set aside. The appeal is, accordingly, stands allowed. Dt. 15.04.2019 PS

State of U.P. Thru Secretary Basic Secretariat and Others v. Ankit Kumar Tiwari and Another

Case brief

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State of U.P. Thru Secretary Basic Secretariat and Others v. Ankit Kumar Tiwari and Another

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