Allahabad High Court
Rajeev Kumar Dwivedi vs State Of U.P.Thru Secy & Ors. on 24 July, 2018
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 16 Case :- WRIT - A No. - 6256 of 2013 Petitioner :- Rajeev Kumar Dwivedi Respondent :- State Of U.P.Thru Secy & Ors. Counsel for Petitioner :- S.K.Shukla Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sangeeta Chandra,J.
(ORAL) This writ petition has been filed by the petitioner challenging the order dated 22.07.2011 passed by the Director, State Council of Educational Research and Training, U.P., Lucknow by which the case of the petitioner for inclusion in Special BTC Course, 2004 has been rejected.
Learned counsel for the petitioner has submitted that in pursuance of the Government Order dated 14.01.2004 and 20.02.2004, an advertisement was issued inviting applications for Special BTC Training, 2004. The petitioner applied for such training but his case was rejected on the ground that he had passed his B.P.Ed. from Shri Krishna College of Physical Education Sewa Gram Vardha, Maharashtra affiliated to Nagpur University in the year 1998 and had not passed B.P.Ed. as a regular student from an institution situated in the State of U.P. The petitioner filed Writ Petition No. 36863 of 2004 in which this Court passed an interim order on 13.09.2004 directing the respondents not to reject the case of the petitioner only on the ground that he had passed his B.P.Ed. Course from an institution outside the State of U.P. provided he had passed B.P.Ed. Course from a University recognized by the University Grants Commission (U.G.C.) and the course was also recognized by the National Council for Teacher Education (N.C.T.E.).
In pursuance of the orders passed by this Court, the petitioner was called for counseling on 29.09.2004. This writ petition filed by the petitioner was connected with several other writ petitions, the leading case of which was Writ Petition No. 31259 of 2004; Surendra Prasad Maurya vs. State of U.P. & Others reported in 2009 (1) UPLBEC, 520.
By means of the judgment rendered in the case of Surendra Prasad Maurya on 12.12.2008, this Court had expressed its agreement with the earlier decisions passed by the Coordinate Benches with regard to petitioner's case being rejected on the ground that he did not possess the degree or training certificate which was recognized by the N.C.T.E. It was held that the candidates who had completed their course from an institution which is not recognized are not eligible to apply for the post in question.
However, this Court in the concluding paragraphs of the said writ petition in paragraph 22 has observed thus :-
?Much water has flown since the filing of the writ petition. It is not known whether the course is continuing or not. It is not known whether the vacancies are still existing or not. Consequently, these writ petitions are disposed of in the light of the observations made above and in the event the petitioners apply afresh within six weeks from today, and in the eligible, in that case the respondents will admit the candidate for training in the Special B.T.C Course, 2004.?
This Court had given leave to the writ petitioners to file representations. The petitioner also filed his representation on 03.02.2009. His representation was pending at the time when this Court in a Full Bench decision in Jitendra Kumar Soni and Others Vs. State of U.P. and Others decided on 13.08.2010, held that all those candidates are eligible for Special BTC Course, 2004, 2007 and 2008 who had obtained the Degree from outside the State of U.P. are eligible and may be considered for being sent for training.
The petitioner preferred another Writ Petition No. 21817 of 2011 (Rajeev Kumar Dwivedi Vs. State of U.P. and Others) praying for a direction to the respondents to comply with the order dated 12.12.2008 passed in his writ petition filed earlier, and decide the pending representation. This writ petition was disposed of vide order dated 16.04.2011 with a direction to respondent no. 2 to decide his representation. The petitioner's representation was decided on 22.07.2011 rejecting his case.
Aggrieved by the order dated 22.07.2011 the petitioner has approached this Court by means of the present writ petition.
It has been submitted by the learned counsel for the petitioner that by the order impugned the respondent no. 2 has rejected the case of the petitioner on two grounds. Firstly, the case of the petitioner is not covered by the judgment rendered by the Full Bench of this Court and secondly, the mark-sheet of B.A.-Graduation which has been submitted by the petitioner has been issued after the last date of submission of application form for Special BTC Course, 2004.
It has been submitted by the learned counsel for the petitioner that with regard to the first ground, the benefit given by the Full Bench to similarly situated persons as the petitioner, was extended by the respondent to one Mahendra Pal Singh who filed writ petition and thereafter a contempt petition. The respondent no. 2 sent Mahendra Pal Singh for Special BTC Training Course, 2004.
With regard to second ground, the petitioner has submitted that he had filed copies of his B.A. Mark-sheet at the time of submission of application form and thereafter the original record got misplaced and he applied for duplicate copy of the mark-sheet which was issued on 16.04.2011. This mark-sheet has been referred to in the order impugned to reject the case of the petitioner.
It has also been submitted by the learned counsel for the petitioner that one other ground has been taken in the rejection order i.e. the total marks shown in his graduation mark-sheet ought to have been 728 out of 1800 instead they had been shown as 725 out of 1800.
Counsel for the petitioner submits that the petitioner had appeared in supplementary examination and his Political Science marks were increased from 19 to 39 but the University has a Regulation which says that only minimum passing marks shall be shown if a student is declared passed in a supplementary examination. Therefore, his marks had been shown as 36 marks which was the minimum marks required for passing B.A. It has also been submitted by the learned counsel for the petitioner that insofar as a ground has been taken for rejection of the case of the petitioner that his B.Ed. Degree was issued from an institution which was not recognized by the NCTE i.e. 1997-98, There is judgment of this Court rendered in Special Appeal No. 2111 of 2011 (Committee of Management, Post Graduate Shri Gandhi Degree College & Another Vs. Union of India & Others) decided on 22.11.2016. The Court had placed reliance upon theDivision Bench observations in the case of Ekta Shukla & Others Vs. State of U.P. & Others reported in 2006 (1) ESC, 531 and had observed that in terms of the notification issued by the NCTE, the last date for making application for recognition given to various institutions was first extended till 1997, and thereafter was extended up to 31.03.1999. As such all students who took examination in 1996-97, 1997-98, 1999-2000 from institutes recognized later on, were holding valid degrees.
In the case of the petitioner he has filed along with rejoinder affidavit information received by him under RTI Act that the N.C.T.E. had recognized the B.P.Ed. Course of Shri Krishna College of Physical Education Sewa Gram Vardha, Maharashtra on 14.10.1998. The petitioner had obtained the said degree in the academic year 1997-98.
Learned counsel for the petitioner has placed great emphasis on the orders passed by the Court in his earlier writ petition dated 16.04.2011 wherein this Court had observed that in similar cases where the writ petitions were pending disposal fled by candidates rejected only on the ground that the B.P.Ed. Degree was not from an institution within the State of U.P., the Court had passed orders which had been complied with.
This Court had in its order dated 16.04.2011 referred to the directions issued in Jitendra Kumar Soni (Supra) to the effect that the Court had already issued directions for consideration of candidates who were before this Court at the time of decision in Jitendra Kumar Soni, and his case should not be treated differently and his representation may be considered in compliance of the orders passed earlier in his case on 12.12.2008.
I have carefully perused the order dated 16.04.2011 passed by Writ Petition No. 21817 of 2011 and the order passed by this Court in Writ Petition No. 36863 of 2004 which was connected and decided along with Writ Petition No. 31259 of 2004.
This Court while dismissing the first writ petition of the petitioner had granted time of six weeks from the date of such dismissal order dated 12.12.2008 to file a representation to the respondents agitating their grievance before it. In the case of the petitioner he filed a representation on 03.02.2009 which was undecided and thereafter he filed a writ petition which was disposed of on 16.04.2011, against the orders passed on 12.12.2008, dismissing his earlier writ petition. The petitioner did not file any special appeal. He waited till decision of the Full Bench came in Jitendra Kumar Soni's case decided on 13.08.2010 and thereafter filed in April 2011.
At the time when Jitendra Kumar Soni's case was decided, no litigation was pending before this Court.
The respondents while rejecting the case of the petitioner have relied upon the judgment in a similar controversy in the case of Har Swaroop Shakya v. State of U.P. And Another (Writ Petition No. 18941 of 2011) dismissed on 04.04.2011, where this Court had observed that the Full Bench had categorically made directions in respect of Special BTC Course that only those candidates whose petitions were pending at the time of such decision shall be eligible for consideration.
Admittedly, the writ petitioner did not challenge the rejection of his candidature at the first opportunity and thus in light of the directions issued by the Full Bench, his candidature cannot be considered now.
Learned counsel for the petitioner has orally submitted that the judgment rendered in Har Swaroop Shakya on 04.04.2011 has been set aside and Har Swaroop Shakya has been sent for training. He has also relied upon the judgment rendered by this Court in Writ A No. 17358 of 2014; Vijai Kumar & Another vs. State of U.P. & 2 Others decided on 26.03.2014, wherein this Court placed reliance upon judgment rendered in Special Appeal No. 467 of 2012 and directed the respondent no. 2 to take a deicision in the matter of the writ petitioner therein. The learned counsel for the petitioner says that the respondent no. 2 allowed Vijai Kumar, the petitioner in the said writ petition, to go for training.
The learned counsel for the petitioner had also placed reliance upon the judgment rendered in Writ-A No. 51239 of 2012 (Dharmveer Singh vs. State of U.P. & Others) decided on 01.07.2015 directing the candidature of the writ petitioner to be reconsidered for Special BTC Training Course, 2008 and not to reject the same only on the ground that his B.P.Ed. Degree is from the outside of the State of U.P. I have perused the orders passed by this Court in the case of Dharamveer Singh (Supra) and I find that it related to Special BTC Course, 2008 and this Court made observations with regard to orders passed by the Full Bench of this Court in Jitendra Kumar Soni and directed the respondent no.2 to consider the candidature of the petitioner therein.
It has been submitted that Special Appeal against the said judgment was rejected by this Court. However, the learned counsel for petitioner could not produce the judgment passed by the Division Bench.
Since this Court had only directed the candidature of the writ petitioner to be reconsidered and had not issued any mandamus to admit the writ petitioner therein in Special BTC Training, 2008, the special appeal was liable to be dismissed as such and may have been dismissed also.
Counsel for the petitioner has also placed reliance upon a judgment passed in Writ-A No. 74086 of 2011 (Narendra Rai vs. State of U.P. & Others) which was decided by this Court on 09.05.2015. This Court had observed that the writ petitioner had passed his B.Sc. Degree from Delhi University in the year 1993 and his B.P.Ed. course from Nagpur University in the year 1996 and the NCTE Act, 1993 came into force on 17.08.1995. Therefore, the claim of the petitioner possessing a valid B.Sc. Degree could not be rejected on the ground that at the time when the petitioner took the course of B.P.Ed., his institution was not recognized.
I have considered the order impugned and I am of the considered opinion that two other grounds in the impugned order may not be admissible to the respondent no. 2. However, the first ground taken in the order impugned relating to no writ petition pending at the time when judgment was rendered in in Jitendra Kumar Soni on 13.08.2010, is beyond reproach.
It is admitted fact that the petitioner had initially filed writ petition which was dismissed on 12.12.2008. The petitioner did not challenge the order in Special Appeal nor did he file any fresh petition which was pending when this Court in Jitendra Kumar Soni observed thus:-
? The Government has issued orders closing these courses except for those, whose applications were rejected on the ground that they did not possess the L.T./B.P.Ed./D.P.Ed./C.P.Ed., from institutions in U.P. and the matters are pending before this Court. With respect to the Special B.T.C. Courses for the years 2004, 2007 or 2008, if the petitioners, whose petitions are pending, are eligible, they shall be considered for training for the Special B.T.C. Courses, which shall be commenced within a reasonable period.?
It has been admitted by the counsel for the parties that Civil Appeal No. 1600 of 2011; State of U.P. v. Jitendra Kumar Soni, has been disposed of by the Hon'ble Supreme Court by referring to N.C.T.E. Act being amended on 12.10.2011. By amendment to the Act the legislature had taken care of lacuna that was found earlier insofar as the authority of the N.C.T.E. to prescribe the qualifications that were required for appointment of teachers in pre-primary, primary, upper-primary, secondary, senior secondary or intermediate schools or colleges was challenged.
It appears that in Civil Appeal No. 7479 of 2009; Irrigineni Venkata Krishna & Others vs. Government of A.P. & Another in 2010 (15) SCC, 319, two questions were referred to the Larger Bench as mentioned in paragraph 4 as under :-
?1. Whether NCTE Act only deals with the teachers' training institutes and the power conferred upon the National Council for Teachers' Education under Section 12 (d) of that Act in laying down guidelines in respect of minimum qualifications for a person to be employed as a teacher is confined to such institutes i.e., teachers' training institutes?
2. If answer to the aforesaid question is in negative whether the Regulations framed in exercise of the powers under Section 32 (2) (d) (i) read with Section 12 (d) of NCTE Act by the National Council for Teacher Education laying down qualifications for employment of teachers in primary schools is binding on the state government and in view thereof, the state government is denuded of its authority to enact qualification for appointment as teachers in primary schools?
After disposal of the Civil Appeal in State of U.P. vs. Jitendra Kumar Soni, the judgment of the Full Bench has attained finality.
In S.S.Balu & Another vs. State of Kerala & Others reported in 2009 (2) SCC, 479, the Supreme Court was considering a similar situation where the appellants whose name appeared in the select list were not given appointments by the Government on the ground that the proposed vacancies to be filled up were only anticipated vacancies and not actual vacancies. The Government's decision was challenged by some selected candidates but not the appellants.
The Hon'ble Supreme Court quashed the Government's decision and directed giving of appointments to the writ petitioners before holding that there were 175 vacancies to be filled up and a wrong number had been revealed to the Court earlier. The Government filed an appeal before the Division Bench. It was considered by the Govt. that there were vacancies and also that 18 writ petitioners could be accommodated therein. The appellants got themselves impleaded as respondents in the appeal but the Division Bench directed the Government to appoint only those 18 candidates who had challenged the Government's decision earlier by filing writ petition.
Aggrieved by the order of the Division Bench the appellants approached the Supreme Court saying that 175 vacancies existed and they were higher up in merit in the select list than the writ petitioners and had also got themselves impleaded as respondents in the appeal filed by the State. They were entitled to the fruits of litigation.
The Supreme Court rejected their contention on the ground of delay in approaching the Court. It observed in paragraph 17 thus :-
?17. It is also well-settled principle of law that ?delay defeats equity?. The Government Order was issued on 15.01.2002. The appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and the State of Kerala preferred an appeal thereagainst, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches the High Court after a lond dealy, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage.?
In the State of U.P. and Others v. Arvind Kumar Srivistava and Others reported in 2015 (1) SCC page 347 the respondents were selected candidates in pursuance to an advertisement for engaging Homeopathic Compounders but they were not allowed joining and challenged the decision of the Chief Medical Officer. Their suit was dismissed. They kept quite.
Other similarly situated candidates approached the Tribunal. The CMO's order was set aside. The writ petition of the State Government was thereafter dismissed by the High Court. The Order of the Tribunal was complied with on dismissal of appeal. It was then alone that the respondents filed claim petition before the Tribunal claiming parity of its earlier decision. It was granted. The writ petition was dismissed again by the Division Bench of the High Court. The State of U.P. went up in appeal before the Hon'ble Supreme Court.
The Hon'ble Supreme Court allowed the appeal of the State Government and it observed in paragraph 22 thus :-
?22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under.
22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2. However, this principle is subject to well-recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularization and the like (see K.C. Sharma v. Union of India). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence?.
This Court, in view of the position of law settled in the case of S.S. Balu & Another vs. State of Kerala & Others (supra) and the State of U.P. & Others v. Arvind Kumar Srivastava and Others (supra), does not find any infirmity in the order impugned to exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India.
The writ petition is dismissed.
Interim order, if any, stands discharged.
Order Date :- 24.7.2018 VR