Allahabad High Court
Akhilesh Kumar Pandey And 2 Others vs State Of U.P. And 3 Others on 6 August, 2019
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 36 Case :- WRIT - A No. - 7532 of 2019 Petitioner :- Akhilesh Kumar Pandey And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Satyendra Chandra Tripathi Counsel for Respondent :- C.S.C.,Ashok Kumar Singh Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioners, Sri Ashok Kumar Singh, learned counsel for the respondent nos.3 & 4 and learned Standing counsel for remaining respondents.
The petitioners (3 in number) have joined in the present writ petition to challenge the order of rejection of their claim dated 20.2.2019 passed by the Secretary, District Basic Education U.P. Allahabad, for appointment against 16448 vacancies of Assistant Teacher in Junior Basic School, in the light of the Government Order dated 8.6.2018. The challenge is also to the Government Order dated 8.6.2018 which provides for closing of the selection against the aforesaid vacancies.
The process for selection against the aforesaid posts had commenced with the advertisement dated 16.6.2016. It is not in dispute that the petitioners could not qualify to the final select list as they had obtained lesser marks than the last selected candidates in the category to which they belong. The claim of the petitioners is that they were actually qualified for the post of Assistant Teacher and after scrutiny of their applications alongwith other candidates, their names had been placed in the "mother list" issued by the Secretary, Board of Basic Education, appended as Annexure-'4' to the writ petition. The names of the petitioners find place at Serial no.46230, 46496 and 46451.
A perusal of Annexure No.-'4' to the writ petition shows that the list to which the petitioners refers as "mother list" is the list of all the applicants with the description of their details including the marks in the qualifying examinations etc. The select list was admittedly prepared after various rounds of counselling of the candidates, that means the status of the petitioners as per the "mother list" is only that of the applicants or prospective candidates who could not get place in the merit list or the select list. Further the claim of the petitioners to seek appointment is based on the directions issued by this Court on 25.9.2018 in Writ petition no.20619 of 2018 (Akhilesh Kumar Pandey and 2 others vs State of U.P and 2 others) which is extracted hereunder:-
"Let inquiry be concluded within a period of three months from today. After conclusion of inquiry, the petitioners shall be considered in accordance with law for their appointments if they rank in the merit list and if after scrutiny the said appointments are terminated/cancelled in pursuance of the inquiry. "
The contention is that the petitioners came to know that certain candidates secured selection through fake, forged and fabricated documents. They, therefore, made a complaint before the District Basic Education Officer, District Magistrate, Siddharth Nagar as also on web portal of the office of the Secretary, Basic Education Board, U.P. On the complaint of the petitioners dated 11.10.2017, five teachers had been terminated as per the intimation given to the District Magistrate vide letter dated 7.5.2018, 23.7.2018 sent by the District Basic Education Officer, Siddharth Nagar. A three member Committee was, thereafter, constituted to enquire into the irregularity in the appointment of Assistant Teachers in the primary school of the District Siddharth Nagar. Some candidates whose appointments were cancelled, having been obtained on the strength of forged certificates, had approached this Court but their writ petitions and Special Appeals had been dismissed. The enquiry Committee found that 43 teachers had been appointed in District Siddharth Nagar on the basis of forged certificates, ultimately, their services were terminated in the month of August, 2018. The petitioners, thereafter, approached the District Basic Education Officer to grant them appointment against the resultant vacancies arose on account of termination of illegally appointed Assistant Teachers. After sometime, they approached this Court in Writ Petition No.20619 of 2018 seeking a direction commanding the District Basic Education Officer to grant them appointment. The counsel for the District Basic Education Officer made a statement in the Court that the enquiry in the matter with respect to 43 candidates was going on, and final decision would be taken after conclusion of the same. The said writ petition was, therefore, disposed of with the direction that the petitioners shall be considered for their appointment if they rank in the merit list and if after scrutiny the appointments were terminated.
When no decision was taken by the respondent, the petitioner herein filed a contempt application wherein the order dated 20.2.2019 of rejection of claim of the petitioners for appointment and the Government Order dated 8.6.2018 were brought on record to assert that the petitioners had no surviving claim for appointment as the process of selection had been brought to an end vide Government order dated 16.6.2016.
Learned senior counsel for the petitioners vehemently submits that the cut off merit had been raised due to inclusion of 43 candidates who had secured appointment by producing forged certificates. In case, the merit list is prepared afresh after deleting the names of 43 candidates, petitioners will certainly get their place and be selected as they had appeared in the first round of counselling held in District Siddharth Nagar. Reference is also been made to the judgment of this Court in Writ Petition no.27870 of 2017 (Neeraj Kumar Pandey another versus State of U.P. and others) to contend that the Secretary of the Board was directed to complete the selection process against the remaining vacancies within two months in terms of the circulars dated 16.6.2016, 19.9.2016, 15.12.2016 and 30.12.2016. These circulars were issued by the Secretary, District Basic Education Board, U.P. after conclusion of the Assembly Elections in the State of U.P. pertaining to different selections to the post of Assistant Teachers in Junior and Senior Basic Schools run by the Basic Shiksha Parishad in the State of U.P., as the said selections could not be completed on account of promulgation of Model of Code of Conduct. Consequently, the Secretary, Board of Basic Education issued a circular dated 13.12.2017 to all the District Basic Education Officers in the State of U.P to fill the remaining vacancies and to ensure that the appointees join immediately. In Special Appeal, judgment of the learned Single Judge in Neeraj Kumar Pandey (supra) was upheld and Special Leave Petition had been dismissed by the Apex Court. Another circular dated 15.2.2019 had been issued by the Secretary, Basic Education Board, U.P asking the District Basic Education Officers to fill the vacancies from amongst, the candidates who had participated in the counselling. It is, thus, vehemently argued by the learned Senior Advocate that once the State Government and the Secretary, Basic Education Board, U.P. had taken a decision to comply with the directions of the learned Single Judge in Neeraj Kumar Pandey (supra), there cannot be any denial to the claim of the petitioners for appointment to the post of Assistant Teacher in Junior Basic Schools against the resultant vacancies. The order of rejection of claim of petitioners, thus, runs contrary to the own decision of the Secretary, Basic Education Board, U.P. Reliance is placed on judgments in Special Appeal No.313 of 1998 (State of U.P. And ors vs Ravindra Nath Rai and Ors reported in 1999 (36) ALR 52) decided on 03.02.1999, Civil Appeal No.1035 of 2004 (Sheo Shyam and Ors vs State of U.P and Ors reported in (2005) 10 SCC 314) decided on 16.02.2004, Civil Appeal No.6529 of 1999 (A.P. Aggarwal vs Govt. of N.C.T of Delhi and Ors reported in (2000) 1 SCC 600) decided on 16.11.1999, Civil Appeal No.11314 of 1995 (Jai Narain Ram vs State of U.P. And Ors reported in (1996) 1 SCC 332) decided on 16.11.1995, Civil Appeal No.5155 of 1993 (R.S.Mittal vs Union of India reported in 1995 Supp (2) SCC 230) decided on 27.03.1995.
Placing reliance on the observations in Jang Singh vs Brijlal and ors, Civil Appeal No.687 of 1962; it is contended that the decision of the State Government to close the selection process by issuing Government Order dated 8.6.2018 will not have any bearing on the claim of the petitioners, in as much as, the petitioners were agitating for their rights since 2017, any delay in disposal of the writ petitions filed by them or consideration of their claim by the respondents cannot be attributed to the petitioners. The petitioners cannot be made to suffer for the fault on the part of the Court or the competent authority.
Sri Ashok Kumar Singh, learned counsel for the respondent nos.3 and 4 by placing written instructions supplied by the District Basic Education Officer, Siddharth Nagar contends that total 56 candidates who were given appointment, had been terminated on account of use of forged documents in securing selection. The resultant vacancies cannot be offered to the petitioners as they were much below in the merit list and the selection process had been brought to an end with the Government Order dated 8.6.2018. After completion of the selection, it is not possible for the Selection Committee to revive the process to grant appointment against resultant vacancies which arose on account of termination of the selected candidates. The resultant vacancies are to be carried forward in the next selection. Moreover, there is no provision for preparation of wait list. Since the select list had been exhausted much earlier, the petitioners cannot be considered for appointment.
Considered the submissions of learned counsel for the parties, in view of the above admitted facts, it is clear that with the appointment of selected candidates, the select list or the merit list stood exhausted. The last selected candidate of the relevant category had obtained higher marks than the petitioner. Since the selection was districtwise, it continued for long. The process of selection was interrupted on account of Assembly Election held in the month of January, 2017. When Assembly Elections were over, a circular dated 23.3.2017 was issued by the Secretary, Basic Education Board, U.P. to keep the recruitment process in abeyance, which was subjected to challenge in Neeraj Kumar Pandey vs State of U.P (supra). While setting aside the said circular, this Court had directed the Board to conclude the selection process initiated by the Government Order dated 16.6.2016 for 16448 Assistant Teachers, strictly in terms of the circulars dated 15.12.2016 and 30.12.2016. The effect of circular dated 30.12.2016 issued by the Secretary, Basic Education Board, U.P. had been considered by this Court in writ petition no.6685 of 2019 wherein it was found that the said circular contained three directions as follows:-
1- izFke pdz esa lkroha dkmfUlfyax ,oa Vh0bZ0Vh0 ijh{kk esa 82 vad ikus okys vH;fFkZ;ksa gsrq vk;ksftr dkmfUlfyax iw.kZ gksus ds mijkUr ftu vH;fFkZ;ksa dks fu;qfDr i= fuxZr fd;s x;s fdUrq muds }kjk fdUgha dkj.kksa ls dk;ZHkkj ugha xzg.k fd;k tk ldk gS] mUgsa tuin Lrj ls fnukad 02-01-2017 dks foKfIr fuxZr djsa ,oa mUgsa ,d volj nsrs gq, fnukad 10-01-2017 rd dk;ZHkkj xzg.k djus gsrq vafre :i ls funsZf'kr fd;k tk;A 2- mi;qZDr dk;Zokgh ds mijkUr tuin esa vkoafVr inksa ds lkis{k [email protected] vo'ks"k fjfDr;ksa dks rRle; dkmfUl;fyax esa vgZ ik;s x;s vH;fFkZ;ksa ls ftUgsa dVvkWQ esfjV esa u vkus ds dkj.k rRle; fu;qfDr i= fuxZr ugha fd;k x;k Fkk muls lacaf/kr oxZ dh esfjV ds vuqlkj fjDr inksa dks Hkjs tkus dh dk;Zokgh fnukad 15-01-2017 rd iw.kZ dh tk;A 3- mi;qZDr dk;Zokgh ds mijkUr fjfDr;ksa dk fooj.k ifj"kn dk;kZy; dks fnukad 03-01-2017 rd vfuok;Z :i ls miyC/k djk;k tk;A A reading of the judgment in Neeraj Kumar Pandey (supra) shows that this Court had directed the Secretary, Basic Education Board, U.P. to conclude the selection process strictly in accordance with the said directions. Indisputably, the petitioners herein are not covered by the said directions. As per their own contention, 43 vacancies arose after investigation and termination of services of the appointed teachers in the month of August, 2018. By that time, the selection process was brought to an end vide Government Order dated 8.6.2018. Further, challenge to the said Government Order cannot be sustained for the reason that every selection process has to come to an end. The selection process which was initiated on 16.6.2016 cannot be allowed to continue for an indefinite period .
It is trite in law that even the candidates whose name appear in the select list cannot claim appointment after the selection process is over. Merely because the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancy and the State or recruiting authority is under no legal duty to fill up all or any of the vacancies. Their placement in the select/merit list by itself would not give rise to legal right unless the action on the part of the State is found to be unfair, unreasonable or malafide. The State subject to acting in bona fide as also complying with the principles laid down in Article 14 and 16 of the Constitution of India is entitled to take a decision not to employ or appoint any selected candidate even from amongst the select list. Only if the action of the State is not bona fide or otherwise unfair, the Court can exercise its jurisdiction to correct the same. But neither any such plea was raised nor the same or otherwise found to be existing.
After completion of selection process, the vacancies which occurred on cancellation of appointment of those who obtained it on forged certificate, are not vacancies notified for selection rather they would be resultant vacancies (arose after completion of selection) which are to be filled in the next selection.
The law in this regard is well settled in Asha Kaul (Mrs) and another vs State of Jammu & Kashmir and others) reported in (1993) 2 SCC 577, K.Jayamohan vs State of Kerala and another reported in (1997) 5 SCC 170, Munna Roy vs Union of India and others reported in (2000) 9 SCC 283, All India SC & ST Employees' Association and another reported in (2001) 6 SCC 380, Food Corpn of India and others vs Bhanu Lodh and others reported in (2005) 3 SCC 618, Star Paper Mills Ltd vs State of U.P. And others reported in (2006) 10 SCC 201.
For the aforesaid, the challenge to the Government Order dated 8.6.2018 and the order passed by the Secretary, Basic Education Board, U.P. rejecting the representation of the petitioners dated 20.2.2019 cannot be sustained. No interference is warranted.
The writ petition is, accordingly, dismissed.
Order Date :-6.8.2019 Harshita