TRIAL ADVOCACY

NATIONAL LAW UNIVERSITY ODISHA

DINESH KUMAR
V S.
STATE OF M.P AND OTHERS

WRIT PETITION FILED IN HIGH COURT OF MADHYA PRADESH UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA

Submitted to:

Submitted by

Prof. Pragyan Paramita Ray

Kartikey Gupta [2012/BBA.LL.B/025]

Assistant Prof. of Law

Saurabh Sotwal [2012/BBA.LL.B/045]

DECLARATION
The writ drafted in this project is the outcome of our own efforts and no part of this project
assignment has been copied in any unauthorized manner and no part of it has been
incorporated without due acknowledgement

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ACKNOWLEDGEMENT
Any work is not possible without the help and support of other. In the completion of this
project work, there are certain people who helped us at one time or other.
First of all we would like to thank the almighty and our parents whose wishes were always a
guiding light for us and would like to use this opportunity to acknowledge and thank all those
who helped me to bring it to its final shape.
Secondly, we would like to thank Mrs.Pragyan Paramita Ray whose input was crucial in
understanding the concepts of various writs and their drafting which made it easier for us to
make this project and provided us her support whenever required.

Last but not the least, our librarian who also helped me in indirect way but that cannot be
neglected. We want to extend my thanks to all these peoples and hope that they will be with us
in future as well

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FACTS OF THE CASE

S.No.

Date

1.

19.6.2005

Events
An

advertisement,

pertaining

to

the

recruitment

of

Constable under various categories in the Special Armed

Force, was published in Rozgar aur Nirman newspaper.

2.

21.07.2005

The candidates were called for interview in relation to the

recruitment of Constable under various categories in the
Special Armed Force .

3.

List of candidates selected under various categories in the

Special Armed Force was published.

4.

23.08.2005

A letter was sent by the Inspector General of Police, SAF,

Jabalpur to the Additional Director General, SAF, Madhya
Pradesh thereby cancelling the list of selected candidates
under various categories in the Special Armed Force .

5.

25.09.2006

A common order was passed by the Single Judge of the

Honble

High

Court

in

W.P.

No.10573/05,

W.P.

No.9308/05 and W.P. No.9582/05 . Vide this order, the

Single

Judge

had

set

aside

the

order/letter

dated

23.08.2005.

6.

11.07.2007

Vide a singular order, a Division Bench of the Honble

High Court affirmed the order dated 25.09.2006 passed by
the Single Judge. However, the Division Bench held that
the relief is confined to those persons who had filed the
writ petitions.

7.

15.05.2008

Order was passed by the Honble High Court in W.P. No .

14073/07(s) thereby directing the respondents to consider
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the

claim

of

the

petitioners ,

including

the

present

petitioner.

8.

06.05.2010

Vide an order, claim of the petitioner was rejected on the

ground that that in the answer sheet of the subject of E ssay
writing, there was an over -writing in the marks obtained as
a result of which, the name of the petitioner is not being
approved.

9.

1.12.2011

An order was passed by the Honble High Court in W.P.

No. 15569/10(s) the matter pertaining to the claim o f the
petitioner was remanded back to the respondents to re consider the same.

10.

28.4.2012

An order was passed by the Respondent No. 3 thereb y

rejecting

the

approval

for

the

appointment

of

the

petitioner.

11.

11.2.2013

Order was passed by the Hon ble High Court in W.P. No.
1828/13 thereby directing the respondent to reconsider the
case of the petitioner. Further, it directed the competent
authorit y to give findings on:
1.

Whether the over -writing in the answer sheet

of the petitioner resulted in awarding excess marks

to him?
2.

Whether the petitioner is involved in the

alleged over-writing?.

12.

22.5.2013

An order was passed by the Respondent No. 3 holding that

the petitioner, along with Sushil Kumar Shukla and
Sheshpal Singh Ghoshi , is not entitled for appointment in
view of the recommendations of the enquiry committee and
after examining the record

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IN THE HIGH COURT OF MADHYA PRADESH

PRINCIPAL SEAT AT JABALPUR
W.P. No._______/2015

IN THE MATTER OF

PETITIONER:

Dinesh Vishwakarma

V E R S U S

RESPONDENTS:

The State of Madhya Pradesh and Others

WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

1.

PARTICULARS

OF

THE

ORDER

AGAINST

WHICH

THE

PETITION IS BEING MADE :The instant petition is being filed against the following: (a)

Order No. Pumani/Bisbab/JBP/Estt./614/2013

(b)

Dated 22.05.2013

(c)

Passed by the Inspector General, Special Armed Force,

Jabalpur namel y respondent No.3.

2.

A DECLARATION THAT NO PROCEEDING ON THE SAME

SUBJECT MATTER HAS BEEN PREVIOUSLY INSTITUTED IN
ANY COURT, AUTHORITY OR TRIBUNAL. IF INSTITUTED, THE
STATUS OR RESULT THEREOF, ALONG WITH COPY OF THE
ORDER:-

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The petitioner declares that no other proceedings against the order

impugned have been instituted by the petitioner in any other Court of
law, Tribunal etc.

3.

DETAILS OF REMEDIES EXHAUSTED, IF ANY :The petitioner further submits that there is no equall y efficacious
alternative

remedy

available

to

h im

in

the

peculiar

facts

and

circumstances of the case.

4.

DELAY, IF ANY, IN FILING THE PETITION :The petitioner further submits that there has been no delay in
filing the present petition. It is submitted that the petitioner has been
continuousl y approaching the authorities so as to satisfy them that he
has not been benefited by any of the correction as shown in the answer
sheet of Essay w riting. It has also been represent ed by the petitioner
before the authorities that he was not a privy to any of the corrections
which were carried out in the answer sheet of Essay writing.

The

petitioner submits that he is a poor jobless person without having any

means of livelihood.

This is one of the cause for the marginal dela y

which has occurred in filing the instant petition. Therefore, the delay if
any, which has occ asioned in filing the present petition may kindl y be
condoned, looking to the present facts and circumstances of the case .

MOST RESPECTFULLY SHOWETH:

The petitioner respectfull y begs to submit as under:1. That he is a citizen of India and is entitled to the protection of his
fundamental right as is contemplated in Part III of the Constitution of
India.

It is submitted on behalf of the petitioner that pursuant to the

advertisement dated 19.6.2005 published in Rojgar Aur Nirman ,

newspaper, the petitioner applied for recruitment to the post of
Constable. A copy of the advertisement dated 19.6.2005 is being filed
and marked herewith as ANNEXURE P/1.

The advertisement was

pertaining to the recruitment of Co nstable under various categories in

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the Special Armed Force (hereinafter referred to as SAF for the sake
of brevit y) in the State of Madhya Pradesh. The petitioner also appeared
in the written test for being appointed to the post of Constable in SAF.
It is informed to the petitioner that 139 candidates were short -listed from
amongst the candidates who appeared in the written examination. The
said candidates were called for interview and the interviews were held
on 21.7.2005.

It is also informed to the petitioner that in all, 97

candidates were selected and a list of selected candidates was prepared

and displayed in the office of 10 t h Battalion, S.A.F.

2. That out of the candidates so selected, 55 candidates were belonging to

general category, 9 candidate s were from other backward class, 15
candidates were from Scheduled Caste and 18 candidates were belonging
to Scheduled Tribe. The petitioner is filing a copy of the list which was
displayed in the office of S.A.F. 10 Battalion, Sagar as ANNEXURE P/2
with this petition. The said document gave the details of the candidates
who were selected from amongst the different categories including Other
Backward Caste category.

3. The Inspector General of Police, SAF, Jabalpur i.e. respondent No.3

wrote a letter dat ed 23.8.2005 to the Additional Director Genera l, SAF,
Madhya Pradesh, Bhopal. The select list of the Constables was cancelled.
It was observed in the said letter that on scrutinizing the documents of
the recruitment, it was found that there was some over -writing in the
answer sheets of some of the selected candidates. A copy of the said
letter

dated

23.8.2005

is

being

filed

and

marked

herewith

as

ANNEXURE P/3 with this petition.

4. It is submitted that in the letter dated 23.8.2005, a reference was made

to the Gazette notification dated 16.10.2001.

On perusal of the said

notification dated 16.10.2001, it reveals that in case the select list is not
approved by the Deput y Inspector General of Police, SAF, than under
those circumstances, the same would be f orwarded to the Zonal Inspector
General of Police, SAF, after assigning reasons. Thereafter, the Zonal
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Inspector General of Police, SAF after applying his own mind would take
a decision. A copy of the said Gazette notification dated 16.10.2001 is
being marked and filed herewith as ANNEXURE P/4 with this petition.
The petitioner submits that as the select list was not cancelled within the
period of 7 days, it was deemed to have been approved on the expiry of
the said period.

5. It is submitted that on acco unt of cancellation of the select list, some of

the incumbents had challenged the order/letter dated 23.8.2005 before
this Honble Court by filing different writ petitions.

The said writ

petitions were registered as W.P. No.10573/05, W.P. No.9308/05 and

W.P. No.9582/05, respectivel y.

By order dated 25.9.2006, the writ

petitions were allowed and the letter/order dated 23.8.2005 was quashed.
This Honble Court was pleased to allow all the writ petitions and set
aside the order dated 23.8.2005. The responde nts were also directed to
issue necessary orders for recasting the select list by deleting the names
of such candidates in whose answer sheets there was over -writing of the
marks resulting into allotment of excess marks than the original. A copy
of the order dated 25.9.2006 is being filed and marked herewith as
ANNEXURE P/5 with this petition.

6. It is further submitted on behalf of the petitioner that against the

common order dated 25.9.2006 passed by the learned Single Judge in
W.P. No.9308/05(s) and the other connected petitions, Writ Appeal was
preferred by the State of Madhya Pradesh. The Writ Appeals preferred
by the State were registered as W.A. No.1286/06, W.A. No.1287/06 and
W.A. No.1425/06. The said writ appeals having been inter -linked and
inter-connected, were heard analogousl y and were disposed of by a
singular order. The Division Bench of this Honble Court affirmed the
order of the learned Single Judge in the writ appeals. However, it was
contended by the Government Advocate that the relie f should not be
extended to the person who did not approach this Court. In view of the
said contention of the learned Government Advocate, the order of the
learned Single Judge was modified to the extent that the same is confined
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to the appellants, who ha d filed the writ petitions (infact, it ought to

have been respondents/ original petitioners). A copy of the order dated
11.7.2007 passed in W.A. Nos.1286/06, 1287/06 and W.A. No.1425/06
is filed herewith and marked as ANNEXURE P/6 with this petition.

7. It is submitted that on account of the modification which was

incorporated in the order while deciding the writ appeals, certain
candidates who did not approach for redressal of their grievance, filed a
writ petition before this Honble Court. It is submit ted that writ petition
No.14073/07(s) was filed by one Parsuram Thakur and 5 others and at
S.No. 2 in the cause title, the name of the present petitioner also appears.
By way of the said writ petition i.e. W.P. No. 14073/07(s), the
petitioners sought for quashment of the cancellation of the select list.
They also sought for a direction to the respondents for issuing the letter
of appointment in their favour. A copy of the said writ petition is being
marked and filed herewith as ANNEXURE P/7.

By order dated

15.5.2008, this Honble Court was pleased to dispose of the petition with
a direction to the respondents to consider the claim of the petitioners in
light of the observations and directions issued by this Honble Court in
the writ petitions and the wri t appeals and in case it was found that the
petitioners are similarl y situated, benefit be extended to them also. A
copy of the order dated 15.5.2008 passed in W.P. No.14073/07(s) is
being filed and marked herewith as ANNEXURE P/8.

8. That after passing of the order in W.P. No.14073/06(s), the case of the
petitioner was considered and an order dated 06.5.2010 was issued. It
was stated in the said order that in the answer sheet of the subject of
Essay writing, there was an over -writing in the marks obtained as a result
of which, the name of the petitioner is not being approved. A copy of
the order dated 06.5.2010 is being filed and marked herewith as
ANNEXURE P/9. As the petitioner was aggrieved by the order dated
06.5.2010, he again approached this Honble Court by filing another writ
petition, which was registered as W.P. No.15569/10(s). The said petition
was decided on 1.12.2011 and the matter was remanded back to the
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respondents to re -consider the same and to take a decision within a

period of two month s.

During the course of hearing of W.P.

No.15569/10(s), it was contended that mainl y on the ground of

overwriting action has been taken without evaluating the consequential
effect of the over-writing and without conducting an enquiry as to
whether the ove r-writing has resulted in allocation of excess marks. It
was also contended that the cancellation of the selection was not proper.
In the return filed on behalf of the respondents, it was stated that this
Honble Court had after examining the entire sele ction process in the
backdrop of the directions issued in the earlier round of litigation, the
answer sheets were looked into and the impugned action was taken.
While passing the order dated 1.12.2011, this Honble Court was pleased
to observe that there was nothing on record to show that the action was
taken strictl y in accordance with the mandates of this Court.

This

Honble Court as such directed the respondents to re -consider the

question of cancellation of the selection of the petitioner after taking
note of the fact as to whether the over -writing made in the answer sheet
resulted in allocation of excess marks than the originall y granted one.
It was also observed that if the petitioners case was identical to that of
the private respondents, the same may be considered and decision may
be taken accordingly.

It was in this backdrop that the matter was

remanded back to the reconsider the issued by the respondents. A copy

of the order dated 1.12.2011 passed in W.P. No.15569/10(s) is being
marked and fil ed herewith as ANNEXURE P/10 with this petition.
9. Pursuant to the orders passed by this Honble Court

in W.P.

No.15569/10(s), the matter was decided by the Inspector General, SAF,

Jabalpur (resp.No.3). It was held by respondent No.3 that there was a
correction in the answer sheets in respect to the marks obtained and as
such, the approval for his appointment was rejected. A copy of the said
order

dated

28.4.2012

is

being

marked

and

filed

herewith

as

ANNEXURE P/11.

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10.The petitioner being aggrieved by th e order dated 28.4.2012 passed b y

respondent No.3 once again approached this Honble Court by filing a
fresh writ petition namel y W.P. No.1828/13. The said writ petition was
heard on 11.2.2013. It was contended on behalf of the petitioner that
the impugned order was passed in violation to the directions issued by
this Honble Court in W.P. No.15569/10(s) in as much as, there was no
finding that the alleged over -writing resulted in awarding excess marks
to the petitioner. It was also contended on behalf o f the petitioner that
he was not involved in the over -writing.

The learned Government

Advocate however stated that the representation submitted by the

petitioner shall be dealt with by the competent authorit y afresh. This
Honble Court as such disposed o f the writ petition to consider the
representation submitted by the petitioner within a period of four weeks
by a speaking order and after affording due opportunit y of hearing to the
petitioner. This Honble Court was further pleased to quash the order
dated 28.4.2012. The competent authority was directed to re -consider
the matter and to record a specific finding with regard to following
issues:a. Whether the over-writing in the answer sheet of the petitioner
resulted in awarding excess marks to him?

b. Whether the petitioner is involved in the alleged over -writing?

A copy of the order dated 11.2.2013 is being filed and marked herewith
as ANNEXURE P/12 .

11.The Inspector General, SAF, Jabalpur i.e. respondent No.3 issued an

order dated 22.5.2013 and held t hat the petitioner, Sushil Kumar Shukla
and Sheshpal Singh Ghoshi were not entitled for appointment in view of
the recommendations of the enquiry committee and after examining the
record. The said order gave a reference that an enquiry committee was
constituted comprising of three members. The committee also examined
the records of the other six persons namel y Prashank Kumar Dhekle,
Narendra Kumar Dwivedi, Abdul Hameed, Manish Singh Baghel,
Ambesh Mishra and Ratnakar Singh. The order also refers to the r eport
12 | P a g e

of the enquiry committee dated 16.5.2013 in which it was found that the
marks were altered by over -writing in the answer sheets of Dinesh
Vishwakarma (i.e. the present petitioner), Sushil Kumar Shukla and
Sheshpal Singh Ghoshi. As far as the case of Sandeep Richhari ya was
concerned, the enquiry committee found that due to over -writing, he
suffered a loss of 10 marks. By the said order dated 22.5.2013, it was
recommended for issuance of the appointment order in favour of Sandeep
Kumar Richhari ya. As far as the present petitioner, Sushil Kumar Shukla
and Shehpal Singh Ghoshi were concerned, it was intimated that they
were not entitled for appointment. It was also observed in the order that
as the enquiry committee had recommended against the six Cons tables
who were earlier appointed to take up the proceeding separately. A copy
of the impugned order dated 22.5.2013 is being marked and filed
herewith as ANNEXURE P/13 with this petition.

It is submitted that the cancellation of the select l ist is contrary

to the provisions of law and is also violative of principles of natural
justice.

It is also submitted that the order dated 22.5.2013 is also

contrary to the issued where were formulated by this Honble Court

while deciding W.P. No.1828/13.

GROUNDS URGED:A.

It is submitted that the cancellation of the select list dat ed 23.8.2005

(Annex.P/3) is violative of principles of natural justice.

B.

It is also submitted on behalf of the petitioner that the impugned order

dated 22.5.2013 (Annex.P/13) has been passed in clear contravention of
the orders passed by t his Honbl e Court in W.P. No.1828 /13.

C.

The petitioner submits that there is no material on record so as to even

remotel y suggest that the petitioner has been benefited on account of the
over-writing in the marks obtained in the answer sheet of Essay writing.

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D.

The petitioner respectfull y submits that his case is identical to those

persons who have been given appointments by virtue of the orders passed
by this Honble Court in different writ petitions, which have also been
affirmed in Writ Appeals by the l earned Division Bench.

E.

The petitioner further submits that he has been discriminated in law as

also in the matter of employment, which is in contravention of Articles
14 and 16 of the Constitution of India.

F.

It is also submitted that the order dated 22.5.2013 (Annex.P/13) has been
passed without there being any basis or foundation that he was involved
in any manner in the said correction in the marks obtained in the answer
sheets.

G.

The petitioner respectfull y submits that the cancellation o f the select list
dated 23.8.2005 (Annex.P/3) has been passed in colourable exercise of
power and without application of mind.

The select list (Annex.P/3)

dated 23.8.2005 as far as the same relates to the present petitioner thus
deserves to be quashed and set aside as also the order dated 22.5.2013
(Annex.P/13).

H.

That in case the select list (Annex.P/3) dated 23.8.2005 as also the
impugned order dated 22.5.2013 (Annex.P/13) are allowed to stand, it
would cause irreparable damage and prejudice to th e petitioner wherein
the petitioner would be condemned unheard and h is right to defend his
case in a legitimate and justified manner would be rendered an exercise
in futilit y.

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RELIEFS SOUGHT
In view of above facts and grounds, the petitioner prays for the following
reliefs from this Honble Court : i.

That this Honble Court may kindl y be pleased to quash the

letter/order dated 23.8.2005 (Annex.P/3) passed by respondent
No.3 by issuance of a writ in the nature of Certiorari as far as
the same relates to t he present petitioner.

ii.

That this Honble Court may further be pleased to quash the

impugned order dated 22.5.2013 (Annex.P/13) passed by
respondent No.3, by a writ in the nature of Certiorari.

iii.

That this Honble Court may also be pleased to direct th e

respondents to appoint the petitioner on the post of Constable
in S.A.F. Sagar for which he had applied pursuant to the
advertisement dated 19.6.2005 (Annex.P/1) and to give all
consequential benefits, as has been given to the other
incumbents.

iv.

Any other relief/direction/order as deemed fit and proper

looking to the present facts and circumstances of the case.

v.

Cost of the petition may also kindl y be awarded in favour of

the petitioner.

JABALPUR

(MR. KARTIKEY GUPTA)

DATED: /07/2015

(MR. SAURABH SOTWAL)

COUNSEL FOR THE PETITIONER

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AFFIDAVIT
I, Dinesh Vishwakarma, S/o Shri Balram Vishwakarma, presentl y aged
about 30 years R/o. Near Nayak Electronics, Bus Stand, Garha -Kota, Damoh
(M.P.), the deponent, do hereby solemnl y affirm and state on oath as under: -

1.

That I am the petitioner in this case and the accompanying petition has
been drafted and filed as pe r m y instructions as such I have been read
over and explained the contents of this petition in Hindi.

2.

That the contents stated in paras 1 to 10 in the said petition are correct
and true to m y personal knowledge and the same are based upon the legal
advise received by my counsel. The documents annexed with the petition
are true copies of their respective originals.

As such, I have not

suppressed any material fact on record.

DEPONENT

VERIFICATION
I, Dinesh Vishwakarma, the deponent, above named do hereby verify and
sign that the contents stated in paras 1 & 2 of above affidavit are correct and
true to m y personal knowledge and belief.
Verified and signed on this __ day of July, 2015 at Jabalpur.

DEPONENT

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