Amit Kumar Gupta and Ors. Vs State of U.P.Throu.Addl.Chief Secy.Deptt.of Home Lko.and Ors.

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Court No. - 1

Case :- SPECIAL APPEAL No. - 1 of 2020

Appellant :- Amit Kumar Gupta And Ors. Respondent :- State Of U.P.Throu.Addl.Chief Secy.Deptt.Of Home Lko.And Ors. Counsel for Appellant :- Birendra Pratap Singh,Sameer Kalia Counsel for Respondent :- C.S.C.

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Hon'ble Ramesh Sinha, J. Hon'ble Subhash Vidyarthi, J.

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1. Heard Shri Sameer Kalia, learned Counsel for the appellants and Shri V.P. Nag, learned Standing Counsel for the Staterespondent.

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2. The instant special appeal has been filed challenging the judgment and order dated 27.11.2019, passed by an Hon'ble Single Judge in Writ Petition No.14066 (S/S) of 2019 and other connected writ petitions.

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3. The aforesaid writ petition was filed pleading that an advertisement was issued for making recruitment of Constable (Civil Police) and the Provincial Armed Constabulary (P.A.C.). The written test was conducted on 19.06.2018. The Provisional Answer Key was notified on 28.06.2019 calling for objections through 'online mode'. Numerous candidates submitted objections against the Provisional Answer Key. On 05.12.2018, the Final Answer Key and the final result of the examination were published. The appellants filed the writ petition submitting that the objections against the Provisional Answer Key had not been considered properly and the defects were existing in the Final Answer Key also.

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4. The Hon'ble Single Judge dismissed the writ petition on the ground that the petitioners had not filed any objections against the Provisional Answer Key and, therefore, they were not entitled to challenge the Final Answer Key published subsequently when they could not get selected.

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5. Shri Sameer Kalia, learned Counsel for the appellants has submitted that as the appellants had been declared selected in the written examination, they had no reason to be aggrieved and to file any objections at that stage. The appellants had qualified in the written examination, they appeared for scrutiny of documents and for physical standard test and thereafter for physical efficiency test in January, 2019, however, their names did not find place in the final select list issued on 18.02.2019.

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6. Some of the candidates had filed online objections against the Provisional Answer Key, but the answers were not corrected and the appellants were given negative marks for the reason that their correct answers had been treated as wrong answers and there was a provision of providing negative marking for wrong answer.

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7. The Hon'ble Single Judge has dismissed the writ petition on the ground that the appellants did not approach this Court well in time when the Final Answer Key was circulated on 05.12.2018 and even till the declaration of final result on 18.02.2019 and they had participated in the selection in question without raising any grievance at that point of time and also for the reason that the selected candidates had not been impleaded.

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8. While challenging the order passed by the Hon'ble Single Judge, learned Counsel for the appellants has submitted that the appellants had filed objections against answers of two questions showed in the Provisional Answer Key and no decision taken on the appellants' objection was communicated to them. The Final Answer Key reflected that the appellants' objections in respect of answers of two questions were not taken into consideration, however, the appellants had been issued admit cards for verification of documents and physical standard test and they were found successful in that. In such circumstances, had the appellants challenged the selection process at that stage, they would not have been "persons aggrieved" and they had no locus to challenge the selection process at that stage and the challenge to the selection process on the ground of answers of

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two questions in the written test being wrong, would have been treated to be a mere academic exercise.

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9. Per contra, Shri V.P. Nag, learned Standing Counsel has submitted that the appellants participated in the entire selection process and took a calculated chance of being successful and, therefore, they cannot be permitted to turn around later on and challenged the selection process after they remained unsuccessful.

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10. We have considered the facts and circumstances of the case and the submissions made by the learned Counsel for the parties.

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11. The appellants had filed objections against the Provisional Answer Key against the answers of two questions. They were not informed about any decision taken in respect of their objections. However, they were shown as qualified in the written examination and they were issued admit cards for verification of documents and conducting physical standard test. All the appellants had participated in the documents verification and physical standard test and they were found successful therein. Thereafter the appellants were issued admit cards for participation in the physical efficiency test. However, the appellants' names did not find place in the final select list.

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12. In the aforesaid circumstances, the 'cause of action' accrued to the appellants only when they could not succeed in the selection process and, therefore, it cannot be said that the writ petition was filed belatedly.

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13. Regarding non-impleadment of necessary parties, we are of the view that non-impleadment of necessary parties was a curable defect and the appellants ought to have been given an opportunity to cure the defect by impleading the necessary parties.

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14. In view of the aforesaid discussion, we do not find ourselves in the agreement with the view taken by the Hon'ble Single Judge while dismissing the writ petition.

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15. Accordingly, the instant special appeal is allowed . The judgment and order dated 27.11.2019, passed by the Hon'ble Single Judge in Writ Petition No.14066 (S/S) of 2019 is hereby set aside and the matter is remanded for being decided afresh, after giving an opportunity to the appellants to cure the defect of non-joinder of necessary parties.

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(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)

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Order Date :- 28.01.2023

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Anand Sri./-

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Digitally signed by :- ANAND KUMAR SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench

Amit Kumar Gupta and Ors. v. State of U.P.Throu.Addl.Chief Secy.Deptt.of Home Lko.and Ors.

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Amit Kumar Gupta and Ors. v. State of U.P.Throu.Addl.Chief Secy.Deptt.of Home Lko.and Ors.

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