Allahabad High Court
Mahima Srivastava And 5 Others vs State Of U.P. And 3 Others on 7 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 2518
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 2 Case :- WRIT - A No. - 27435 of 2018 Petitioner :- Mahima Srivastava And 5 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Seemant Singh,Arun Kumar Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav,Deo Dayal Hon'ble Suneet Kumar,J.
1. Heard learned counsel for the parties.
2. Petitioners were applicants to the selection process of 68500 Assistant Teachers to be appointed in primary schools (Junior Basic Schools) at different districts of the State of Uttar Pradesh. It is not in dispute that the petitioners have the requisite qualifications, including, Special B.T.C., they qualified the Teacher Eligibility Test (TET). Thereafter, petitioners participated in the Assistant Teacher Recruitment Examination 2018, wherein, the petitioners qualified. Sixth petitioner belongs to Scheduled Caste category, whereas, the other petitioners are of the unreserved category. On being qualified, the petitioners were allotted districts Allahabad and Chandauli on the basis of their quality point marks. Petitioners have not been issued appointment orders in their respective districts i.e. Allahabad and Chandauli, by the respective District Basic Education Officers. Aggrieved, by the instant writ petition, petitioners are seeking direction in the nature of mandamus commanding the respondents to grant appointment on the post of Assistant Teacher in Junior Basic School.
3. It is not being disputed by the contesting respondents that the provisions of Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (for short ''Rules 1981'), framed under the Uttar Pradesh Basic Education Act, 1972, governs the selection/appointment of basic teachers in the State. The second respondent, Secretary, Uttar Pradesh Basic Shiksha Parishad, Prayagraj (for short 'Parishad') in the counter affidavit submit that petitioners are primarily claiming benefit of the fourth proviso to Rule 6 of Rules 1981, granting age relaxation to the candidates having passed Special B.T.C. training course- 2004, 2007 and 2008 vide circular dated 31 August 2018, issued by the Parishad. It is contended that the fourth proviso to Rules 1981, would apply to those candidates, who could not seek appointment due to non-availability of vacancy in the concerned district after completing Special B.T.C. training. The general relaxation of age being claimed by the petitioner, however, would not apply in those cases where the candidates had appeared but had not qualified the selection against the available vacancy. It is further urged that the petitioners were earlier given an opportunity to appear and participate in the selection process but they did not qualify, accordingly, they cannot claim age relaxation for the subsequent selection process. Para 5 of the counter affidavit for the purpose of the instant case is extracted:
"That it is further stated that the petitioner no. 1 Mahima Srivastava has completed the Special B.T.C. Training Course 2017 (Examination year 2012) and she was issued certificate on 15.06.2012. The petitioner no. 2 Sadhana Rai has completed the Special B.T.C. Training Course 2007 (Examination year 2015) and she was issued certificate on 12.12.2015, the petitioner no. 3 Nirmala Mishra has completed the Special B.T.C. Training Course 2007 (Examination year 2015) and she was issued certificate on 12.12.2015, the petitioner no. 4 Mamta Pandey has completed the Special B.T.C. Training 2004 (Examination year 2014) and she was issued certificate on 19.9.2014 and the petitioner no. 5 Sudhanshu Kumar Dwivedi has completed the Special B.T.C. Training Course 2008 (Examination year 2011) and she was issued certificate on 16.3.2012. It is stated that by Government Order dated 15.10.2013 (Annexure-7 to the writ petition). After successful completion of the training course of the petitioners, 15000 vacancies were notified by the Government Order dated 9.12.2014 and 16448 vacancies were notified by the Government order dated 16.6.2016, for recruitment of Assistant Teachers, by giving opportunity to the candidates who were passed the Special B.T.C. Training Course. That according to the proviso of Rules, 1981, the petitioners have been given ample opportunity of appointment and therefore, giving relaxation in age to the petitioners is not just and legal. The averments to the contrary are denied."
4. In rebuttal, learned counsel for the petitioner submits that the petitioners have admittedly completed Special B.T.C. training course, upper age limit of such candidates is governed by the sixth proviso to Rule 6. It is urged that pursuant to circular dated 27 June 2016, issued by the second respondent, relaxation has been given to all such trained candidates, including candidates having Special B.T.C. who otherwise could not have been appointed due to delay in holding and imparting training, subsequently, they became overage, therefore, were granted age relaxation upto 50 years. The relaxation of age is confined to the Special B.T.C. batches of 2004, 2007 and 2008. Petitioners belong to the said batch and were imparted training belatedly. They are fully covered by the circulars issued by the Parishad granting age relaxation.
5. In is further urged that in all the districts of the State of Uttar Pradesh, similarly situated Special B.T.C. candidates have been granted appointment by the respective Basic Education Officers, however, in district Allahabad and Chandauli, the petitioners have been declined appointment. It is urged that the stand of the respondents is discriminatory and violative of Article 14.
6. Having considered the rival contentions, the short question that arises, is as to whether, the petitioners, in the given facts and circumstances, could be denied appointment on the post of Assistant Teacher, Junior Basic Schools.
7. Rule 6 of Rules 1981, for the purposes of the controversy reads thus:
[6. Age.- A candidate for recruitment to any post referred to in clause (a) or proviso to clause (b) of Rule 5, must have attained the age of twenty one years and must not have attained the age of more than forty years on the first day of July following the year in which the vacancy is notified :
Provided x x x x x x Provided x x x x x x Provided x x x x x x Provided also that where after successful completion of a course of training prescribed for teachers of basic schools, a candidate could not get appointment due to non-availability of vacancy in the district, the period he has remained unappointed shall not be counted for the calculation of his age if he has not attained the age of more than fifty years on the date of appointment : Provided x x x x x x Provided also that in case of candidates having proficiency in Urdu and having completed two years B.T.C. Urdu special B.T.C. training course or completed special BTC training course the upper age limit shall be such as may be determined from time to time by the State Government. Provided x x x x x x Provided x x x x x x
8. On plain reading of the main provision providing ''Age', it is prescribed that a candidate must have attained the age of 21 years and must not attained the age of 40 years on the first day of the following year on which the vacancy is notified. The fourth proviso provides for age relaxation to all such candidates, who after successful completion of the course of training prescribed could not get appointment due to non-availability of vacancy in the district. The period he has remained un-appointed shall not be counted for calculation of his age if, he has not attained the age more than 50 years on the date of appointment. Whereas, the sixth proviso provides age relaxation to a special class of trainees, including, candidates having Special B.T.C. training course. The upper age limit in respect of these candidates is left to the Government to be determined from time to time.
9. Learned counsel for the second respondent submits that Parishad has been exercising powers under the fourth proviso in granting age relaxation to all such candidates, whereas, the sixth proviso confers power upon the Government. The Government has not granted any age relaxation to the candidates as is reflected from the notifications issued to the Parishad for initiating process of appointment/selection of Assistant Teachers.
10. On specific query, learned counsel for the second respondent admits that the petitioners belong to the batch of Special B.T.C. trainees of 2004, 2007 and 2008 and their training was completed belatedly. They are entitled to age relaxation granted by the Parishad vide circulars dated 27 June 2016 and 31 August 2018. But since the petitioners had earlier availed an opportunity by participating in the selection process and had not qualified, the age relaxation being claimed by them for the subsequent selection cannot be granted. It is admitted that the petitioners have qualified the T.E.T., as well as, the recruitment examination conducted by the second respondent. Further, it is not being disputed that all such candidates covered under the fourth proviso to Rule 6, read with the circular, who had earlier participated in the recruitment process but had not qualified, and became overage (crossed 40 years) have been given age relaxation, and upon selection have been granted appointment in all the districts of Uttar Pradesh except Allahabad and Chandauli. It is further not being disputed that the fourth proviso to Rule 6 has not yet been either amended or deleted, the selections to the posts of Assistant Teacher in Junior Basic School has continued as such since 2013, age relaxation have been granted to the special class of trainees under the fourth proviso.
11. The dispute, inter-se, parties is not with regard to eligibility or qualification. It is admitted by the respondents that petitioners are eligible and qualified for appointment as Assistant Teacher (Junior Basic School). The dispute is as to whether petitioners are entitled to age relaxation under the fourth proviso to Rule 6.
12. The sixth proviso relied upon by the learned counsel for the petitioner would not apply for the reason that petitioner failed to show from the material brought on record that the Government has issued notification granting age relaxation to the class of trainees mentioned therein. The second respondent on the contrary has taken a stand that age relaxation has been granted to Special B.T.C. trainees of 2004, 2007 and 2008 by the Parishad under fourth proviso by issuing circulars from time to time. It is urged by the learned counsel for the second respondent that the part of the sentence i.e. ''due to non-availability of vacancy' would have to be given restricted meaning. The moment vacancy is available and the over age candidate participates in the recruitment/selection process but does not succeed, then in that event he is not entitled to take further attempts availing age relaxation. In my opinion, the interpretation that is being suggested by the learned counsel for the respondent cannot be gathered on plain reading of the fourth proviso. It is settled principle of interpretation that proviso is exception to the main provision. The proviso cannot re-write or override the main provision. Rule 6 mandates the maximum age at 40 years. The various proviso to Rule 6 confirms power upon the Parishad/Government to provide age relaxation to a class of trainees/candidates mentioned therein. The Parishad has provided age relaxation vide circular issued from time to time to the candidates of Special B.T.C.-2004, 2007 and 2008. The maximum age relaxation provided under the proviso is not more than fifty years.
13. The question that arises is as to whether age relaxation can be granted for a single attempt to these class of trainees on availability of vacancy or they are entitled to take as many attempts subject to maximum age of fifty years.
14. On plain and careful reading of the fourth proviso there is no such embargo. The proviso merely provides that "a candidate could not get appointment due to non-availability of vacancy in the district, the period he has remained unappointed shall not be counted for the calculation of his age ..." The proviso does not mandate that the candidate upon having attempted against the available vacancy and having not qualified the selection shall be barred/prohibited from taking further attempts against subsequent vacancy. In other words such a candidate would not be entitled to further age relaxation. While interpreting a provision nothing can be added or read into the provision. The fourth proviso merely provides for age relaxation to the class of trainees provided therein, who could not get appointment for want of vacancy. Once age relaxation has been granted, the trainees can take any number of attempts as long they remain umemployed subject to maximum fifty years. Curtailing attempts and making it subject to available vacancy is neither mandated in the rule nor can it be inferred. Any such attempt by the Parishad would tantamount to re-writing the proviso by reading something which otherwise is not provided. Further, the interpretation if accepted would render the second half of the proviso, "he has remained unappointed shall not be counted for the calculation of his age" redundant. The proviso has to be read as a whole. The main provision (Rule 6) also does not restrict the number of attempts a candidate can take. A candidate between 21 years to 40 years can take as many attempts until he succeeds. Therefore, no restriction can be imposed upon the class of trainees who have been granted age relaxation under the fourth proviso. The power and authority to that extent has not been conferred on the Parishad. The restriction would be violative of Article 14 and 15 of the Constitution of India. The circulars issued by the Parishad rightly does not provide a bar on attempts in taking the examination. The only bar is maximum age limit provided by the rule/proviso. The petitioners are entitled to be appointed Assistant Teachers.
15. Having due regard to the facts and circumstances of the case, the writ petition is allowed. Third and fourth respondents, District Basic Education Officer, Allahabad and Chandauli, respectively are directed to grant appointment to the petitioners forthwith on the post of Assistant Teachers, Junior Basic Schools within three weeks from the date of filing of certified copy of this order. It is expected that the second respondent, Secretary, U.P. Basic Education Services Selection Board shall issue the necessary directions to the third and fourth respondent in this regard.
16. No cost.
Order Date :- 7.11.2019 S.Prakash